Children, Education and the Law

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In Canada, political and law-making power is shared by the provincial and federal levels of government, as set out in the constitution. Section 93 of the Constitution Act, 1867 gives the provincial governments the exclusive jurisdiction to make laws governing education. There is no federal department of education in Canada. Provincial governments are directly responsible for funding, legislating, regulating and co-ordinating education. Some of the sources of provincial education law are: education statutes, education regulations, ministry guidelines and policies; policies, procedures, protocols and by-laws; and common law or case law.

At both the federal and provincial levels, there are other areas of law that intersect with education. Among these are federal legislation such as the Youth Criminal Justice Act (YCJA); Criminal Code; Divorce Act; and provincial legislation, such as the Human Rights Code; Occupational Health and Safety Act; Labour Relations Act; Child and Family Services Act; and Children's Law Reform Act. The Constitution Act, 1982 is the supreme law in Canada. All other provincial and federal laws must be consistent with the Constitution or they may be struck down as "unconstitutional." All education laws passed by the province must be consistent with the Constitution.

Section 93 of the Constitution Act, 1867 gives the provinces exclusive jurisdiction to enact laws governing education as long as the province does not make laws that affect the rights or privileges of denominational schools recognized by law and in existence at the time of Confederation. Similarly, the Canadian Charter of Rights and Freedoms, 1982 (section 29) recognizes specific rights of denominational (religious), separate or dissentient schools.

The Canadian Charter of Rights and Freedoms, 1982 protects the right to minority language education (section 23). This section provides that parents who speak the minority official language in their province (ie, French or English) have specific but limited rights to public schooling for their children in their minority language. (See also Official Languages Act, 1969; Official Languages Act, 1988).

Who is a child?

There is no one legal definition of "the child." Rather, there is a tangle of legal regulations defining, delineating or impacting "the child." Age of Majority and Accountability legislation regards the graduation date from youth to be 18. However, in most provinces, liquor laws demand that no sales be made to individuals under the age of 19. Some legal regimes (such as Ontario's Child and Family Services Act) give rights to individuals as young as seven years old (e.g., for the purposes of consenting to adoption). Still other sources of law consider the issue on the basis of capacity.

The multitude of standards and definitions of "the child" for the purposes of our laws makes understanding the many areas of the law that impinge upon the lives of young people very challenging. The definition of "the child" for the purposes of the law, and therefore for how to define when adulthood begins when legal rights may be applied, varies, and must be viewed and applied in the context in which it arises.

Under 21

While rare, the upper limit of childhood does not entirely end at age 19 either, with a handful of public enactments conferring some aspect of "child" recognition to individuals bumping the final threshold of 21.

In any situation, "who is the child" is context-specific, with definitions and applications of the term being variable and changing even in attempts to apply one statute and its regulations. Anyone who deals with children should be very conscious and attuned to the context (both as a matter of practical application and law) in which this contact occurs. Despite almost universal recognition that adolescents are different from adults, many people still think they are not.

The first Canadian legislation separating adults from children and adolescents was introduced in 1857, placing young persons in training schools and reformatories rather than penitentiaries. Community based alternatives to imprisonment for young persons were initiated at that time. The first probation officers working specifically with and for juveniles were hired at that time.

The YCJA came into force on 1 April 2003. The fundamental underlying principles of this legislation are outlined in section 3 and include separating children from adults and offering rehabilitation and reintegration; fair and proportionate accountability consistent with young people's greater dependency and reduced level of maturity; and enhanced protection to ensure their rights are protected (see Juvenile Delinquency, Juvenile Justice Systems).

The act also defines a "young person" as someone who is, or appears to be 12 or older but is younger than 18 and, if the context requires it, includes any person charged under the act for committing an offence when of the applicable age or a person who has been found guilty under the YCJA. Moreover, the preamble of the YCJA recognizes society's "responsibility to address the developmental challenges and the needs of young persons and to guide them into adulthood"; encourages "guidance and support"; and seeks "effective rehabilitation and reintegration."

This legal principle also finds expression in Canada's international commitments. The United Nations Convention on the Rights of the Child, explicitly mentioned in the preamble to the YCJA, was ratified by Canada in 1992. The Convention (art. 40, par. 1) states that every child accused or recognized as having infringed the penal law should be "treated in a manner... which takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society."

If the behaviour is serious or if the police have other protection concerns, such as apparent parental abuse (see Child Abuse) or neglect, a referral should be made to child welfare authorities. When a child welfare agency receives reports of offending behaviour by a child under age 12, which may come from police or other sources, the agency will investigate whether there are parental abuse or neglect concerns that would in themselves merit intervention, with the offending behaviour being considered primarily as a symptom of the child's response to an unsatisfactory home situation.

In every Canadian jurisdiction there is, in theory, the possibility of a child welfare or mental health response in the case of serious offending behaviour by a child under age 12. However, there are real legal and practical limitations to these responses. In every province, the primary legal basis for a response to offending by children less than 12 years old is child welfare law. When parents are considered unwilling or unable to care properly for their children, child welfare legislation authorizes involuntary intervention by a state-sponsored child welfare agency. The agency can become involved in a broad range of circumstances, including physical, emotional, or sexual abuse, physical or emotional neglect, parental death, parental desire to have a child placed for adoption, and other situations where parents are unwilling or unable to care for their children, such as when an adolescent is "out of control."

The question of what standard should be applied to searches of student persons and property in a school was considered by the Supreme Court of Canada in R. v. M.R.M., 1998 CanLII 770 (SCC), [1998] 3 S.C.R. 393. The summary of that decision, as contained in the headnotes, is that search of student's person or property at a school, by school authorities, is not subject to the same standards that apply to the police.

The Supreme Court found that to require the same kind of prior authorization as is required of the police before a search can be reasonable would be impractical and unworkable in the school environment and, second, that a student's expectation of privacy is lessened to some extent while they attend school or school functions. The headnote indicates that school officials may undertake a search "if there are reasonable grounds to believe that a school rule has been or is being violated, and that evidence of the violation will be found in the location or on the person of the student searched."

Another principle, that has come both from M.R.M. and from the cases that have considered it, is that there are different considerations to be applied to a search of the person as opposed to a search of the locker or desk, if you will, or things like that of a student. A student attending school may have a lessened expectation of privacy in their locker. They may not have a lessened expectation of privacy in their person, and the cases have established that in order to conduct a search of the person, a higher standard must be met.

Privacy

In Ontario, for instance, the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) and/or the Freedom of Information and Protection of Privacy Act (FIPPA) permit disclosure to aid an investigation of a law enforcement proceeding or from which a law enforcement proceeding is likely to result.

With certain exceptions, s. 21 of the Education Act imposes a legal obligation to attend school on every school day. In Part XIII of the Act, each student is subject to a regime authorizing a school principal to investigate and suspend a student and even commence expulsion proceedings. Essentially, the principal and vice-principals are conferred with a disciplinary authority over all their students.

The MFIPPA, with limited exceptions, prohibits the voluntary release of records, containing personal information, which are in the possession, custody or control of an institution, including a school board. The statute provides that disclosure of recorded personal information relating, for example, to educational history, constitutes an unjustified invasion of personal privacy (s. 14(3)(d)). Section 53(1) of the MFIPPA provides that the provisions of the Act prevail over confidentiality provisions in other provincial statutes unless the Act or other statute "specifically provides otherwise". The MFIPPA scheme, to the extent of any overlap or inconsistency, prevails over the Education Act regime. Sections 14(1)(d) and 51 of the MFIPPA recognize that personal information may be subpoenaed to a criminal trial.

See also Student Rights.