CANADA: National Laws

Summary: General overview of Canada's national legal provisions on children's rights, including guidance on how to conduct further research.

National laws on children's rights

Status of the CRC in national law
Ratified treaties, including the Convention on the Rights of the Child, are not directly enforceable, rather their provisions must be enacted in additional legislation in order to make them fully applicable in Canadian courts. The courts have developed a doctrine in which national law is interpreted with the assumption that it was intended to be in conformity with international obligations, but where national legislation is clearly in conflict with the Convention, the courts would be obliged to apply national law. The courts have, however, frequently cited the Convention.

Constitution: the Canadian Charter of Rights and Freedoms contains rights of a constitutional character, including a substantial number which apply without regards to age. There are also a small number of rights provisions that explicitly apply to children:

  • Ss. 23(1)-(3): contain a number of provisions relating to the rights of children to receive primary or secondary school instruction in English or French

Legislation: Canada has a federal political system, which means that legislation of particular relevance to children can be found at the national, territorial and provincial levels. Relevant legislation includes, but is by no means limited to:

Federal legislation:

  • The Criminal Code (RSC 1985, c C-46)
  • The Youth Criminal Justice Act (SC 2002, c 1)
  • The Protecting Canada's Immigration System Act (S.C. 2012, c 17)
  • The Immigration and Refugee Protection Act (SC 2001, c 27)
  • The Citizenship Act (RSC, 1985, c C-29)

Provincial and territorial legislation:

  • The Family Violence Protection Act 2005 (SNL 2005, c F-3.1) Newfoundland and Labrador
  • The Children's Law Act (RSNL 1990, c C-13) Newfoundland and Labrador
  • The Children and Youth Care and Protection Act (SNL 2010, c C-12.2) Newfoundland and Labrador
  • The Child and Youth Advocate Act (SNL 2001, c C-12.1) Newfoundland and Labrador
  • The Adoption Act (SNL 1999, c A-2.1) Newfoundland and Labrador
  • The Child Protection Act (RSPEI 1988, c C-5.1) Prince Edward Island
  • The Child Status Act (RSPEI 1988, c C-6) Prince Edward Island
  • The Child and Youth Advocate Act (SNB 2007, c C-2.7) New Brunswick
  • The Education Act (SNB 1997, c E-1.12) New Brunswick
  • The Youth Protection Act (RSQ, c P34.1) Quebec
  • The Educational Childcare Act (RSQ, c S-4.1.1) Quebec
  • The Child and Family Services Act (RSO 1990, c C-11) Ontario
  • The Children's Law Reform Act (RSO 1990, c C.12) Ontario
  • The Child and Family Services Act (CCSM c C80) Manitoba
  • The Child and Family Services Authorities Act (CCSM c C90) Manitoba
  • The Child Sexual Exploitation and Human Trafficking Act (CCSM c C94) Manitoba
  • The Intercountry Adoption (Hague Convention) Act 1999 (CCSM c A3) Manitoba
  • The Child, Youth and Family Enhancement Act (RSA 2000, c C-12) Alberta
  • The Protection of Children Abusing Drugs Act (Alberta) and the Drug-endangered Children Act (SA 2005, c P-27.5) Alberta
  • The Protection against Family Violence Act (RSA 2000, c P-27) Alberta
  • The School Act (RSBC 1996, c 412) British Columbia
  • The Human Rights Act (SNu 2003, c 12) Nunavut
  • The Child and Family Services Act (SNWT 1997, c 13) Northwest Territories
  • The Youth Justice Act (SNWT 2003, c 31) Northwest Territories
  • The Child and Family Services Act (SY 2008 c 1) Yukon
  • The Child and Youth Advocate Act, (SY 2009 c1) Yukon

Legal Research
The Canadian Department of Justice has published the Constitution Acts and the Canadian Charter of Rights and Freedoms in English (http://laws-lois.justice.gc.ca/eng/Const/Const_index.html) and French (http://laws-lois.justice.gc.ca/fra/Const/Const_index.html). The Ministry of Justice also provides an extensive collection of consolidated Acts in English (http://laws-lois.justice.gc.ca/eng/acts/) and French (http://laws-lois.justice.gc.ca/fra/lois/A.html). The Canadian Legal Information Institute maintains a database of federal, provincial and territorial legislation in English and French (http://www.canlii.org/). In addition, the GlobaLex project at New York University has published a guide to legal research in Canada (http://www.nyulawglobal.org/Globalex/Canada1.htm) and the World Legal Information Institute (http://www.worldlii.org/ca/) and the U.S. Law Library of Congress (http://www.loc.gov/law/help/guide/nations/canada.php) provide a selection of links to legal and governmental resources.

Case Law
CRC Jurisprudence
The Convention on the Rights of the Child has been widely cited in Canadian case law, including in relation to the constitutionality of corporal punishment (http://www.crin.org/Law/instrument.asp?InstID=1415), the adoption of children from indigenous backgrounds (http://www.crin.org/Law/instrument.asp?InstID=1594) and regarding the imposition of adult sentences on persons under 18 (http://www.crin.org/Law/instrument.asp?InstID=1603).

Case Law Research
The website of the Supreme Court of Canada maintains a database of its decisions in English (http://scc.lexum.org/en/index.html) and French (http://csc.lexum.org/fr/index.html). The Canadian Legal Information Institute also maintains a database of case law across the provincial, territorial and federal levels, in English and French (http://www.canlii.org/).

Compliance with the CRC
In its Concluding Observations of 2012, the Committee on the Rights of the Child welcomed a number of legislative actions that have served to further implement the convention on the Rights of the Child, but expressed concern that legislation still does not cover the full scope of the Convention. The Committee particularly noted that the federal and dualist legal system has resulted in fragmented and inconsistent implementation of children's rights across the State, and that children in similar situations may experience “disparities in the fulfilment of their rights depending on the province or territory which they reside in”. The Committee urged the State to find “the appropriate constitutional path” to allow for the implementation of a comprehensive legal framework to fully incorporate the Convention and its Protocols across all Canadian territories.

In depth analysis
In addition to these general comments on the implementation of the Convention, the Committee raised a number of more specific concerns about areas of national law. With regards to juvenile justice, the Committee expressed concern about the reforms to the Youth Criminal Justice Act instituted by Bill C-10, which the Committee considered to be “excessively punitive for children and not sufficiently restorative in nature”. The Committee also raised concern at the failure of the State to increase the minimum age of criminal responsibility, that children can be tried as adults for grave offences, that there had been a decrease in the use of extra-judicial measures such as diversion and that teenage girls were detained in mixed-gender prisons.

The Committee also raised a number of concerns with regards to legal reforms brought in by the Protecting Canada's Immigration System Act of 2012, which authorised the detention of children with irregular migration status for up to one year. The Committee also expressed concern that the Immigration and Refugee Protection Act made no distinction between accompanied and unaccompanied children. The corresponding recommendations focussed on bringing immigration and asylum laws into conformity with the Convention, particularly with regards to the detention of children, which should only be used in exceptional circumstances, and in the best interests of the child.

Child labour also emerged from the Committee's Observations as an area of the law that fell short of the standards set by the Convention. In particular the Committee highlighted the lack of federal legislation on the minimum age for employment and that children aged 16 or 17 are permitted to perform certain types of hazardous work. The Committee urged the State to establish a minimum age of 16 for employment, and to harmonise the legislation across the provinces and territories to ensure adequate protection for all children under the age of 18.

Current legal reform projects
Please contact CRIN if you are aware of any current legal reform projects.

Countries

Please note that these reports are hosted by CRIN as a resource for Child Rights campaigners, researchers and other interested parties. Unless otherwise stated, they are not the work of CRIN and their inclusion in our database does not necessarily signify endorsement or agreement with their content by CRIN.