The Convention on the Rights of the Child (CRC) requires countries such as Canada to support the right of every child to access education directed at reaching their fullest potential and living a responsible life in a free society. 

…while article 28 focuses upon the obligations of State parties in relation to the establishment of educational systems and in ensuring access thereto, article 29 (1) underlines the individual and subjective right to a specific quality of education.

CRC General Comment No. 1 (2001): The Aims of Education

Education is generally a matter of provincial/territorial jurisdiction in Canada although education for Indigenous children often falls under federal jurisdiction.

Canadian legal professionals, parents, students and educators may not relate educational services to universal child rights standards despite Canadian jurisprudence touching on areas in education that can be harmonized with them and emphasizing the interconnectedness of the CRC’s provisions.

International Law

  • CRC Articles 28, 29, 2, 3, 6, 12, 13, 14, 15, 16, 17, 19, 23, 30 and 31

CRC Article 28

  1. States Parties recognize the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular:
    1. Make primary education compulsory and available free to all;
    2. Encourage the development of different forms of secondary education, including general and vocational education, make them available and accessible to every child, and take appropriate measures such as the introduction of free education and offering financial assistance in case of need;
    3. Make higher education accessible to all on the basis of capacity by every appropriate means;
    4. Make educational and vocational information and guidance available and accessible to all children;
    5. Take measures to encourage regular attendance at schools and the reduction of drop-out rates.
  2. States Parties shall take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child's human dignity and in conformity with the present Convention.
  3. States Parties shall promote and encourage international cooperation in matters relating to education, in particular with a view to contributing to the elimination of ignorance and illiteracy throughout the world and facilitating access to scientific and technical knowledge and modern teaching methods. In this regard, particular account shall be taken of the needs of developing countries.

CRC Article 29

  1. States Parties agree that the education of the child shall be directed to:
    1. The development of the child's personality, talents and mental and physical abilities to their fullest potential;
    2. The development of respect for human rights and fundamental freedoms, and for the principles enshrined in the Charter of the United Nations;
    3. The development of respect for the child's parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own;
    4. The preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin;
    5. The development of respect for the natural environment.
  2. No part of the present article or article 28 shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, subject always to the observance of the principle set forth in paragraph 1 of the present article and to the requirements that the education given in such institutions shall conform to such minimum standards as may be laid down by the State.

Interpretive Sources

Canadian Law

Provincial/Territorial Legislation

Education generally operates within the legal parameters of provincial or territorial legislation such as the relevant School Act or Education Act for each jurisdiction.

Case Law

Moore v. British Columbia (Education), [2012] 3 SCR 360, 2012 SCC 61 - Discrimination in education services for a special needs child: ‘special education’ is the means by which students with learning disabilities get meaningful access to general education available to all students and benefit from it. There was no need to establish a comparator group. If Moore were compared with other special needs students, service providers would be free to cut programs for all persons with disabilities without being held accountable and this “risks perpetuating the very disadvantage and exclusion from mainstream society the [human rights] Code is intended to remedy”. Where a barrier is identified, the service provider must consider all options and provide accommodation to overcome that barrier unless it would cause an undue hardship. 

Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 SCR 76 – Is s. 43 of the Criminal Code which justifies a reasonable use of force by a parent or teacher against a child for corrective or educational purposes constitutional? The majority relied in part on Article 3 of the CRC noting that the best interests of the child are ‘a’ primary consideration, not ‘the’ primary consideration and thus may be subordinated to other concerns in appropriate contexts (para 9-12). The Court also referenced Articles 5, 19(1) and 37(a) of the CRC and other international human rights instruments but took an extremely narrow interpretation of these in deciding that they did not explicitly ban the use of corporal punishment. (para 32-34). The Court described when the use of force was justified, for example for a child between the ages of 2 and 12 and only when the force was applied by a parent, emphasizing the primacy of keeping the family intact over protecting the child (para 62). Note that best interests of the child in some Canadian legislation such as the BC Family Law Act is ‘the’ primary consideration.

R. v. Audet, [1996] 2 SCR 171, 1996 - Is a child protected from adults where there is a power imbalance arising from the nature of the relationship? The teacher was charged with touching a young person for a sexual purpose while in a position of trust under s. 153 of the Criminal Code; the sexual touching had occurred by a former teacher of the 14 year old during the summer and off school premises; the Supreme Court of Canada allowed the appeal overturning an acquittal by the lower court as s. 153 is intended to protect young persons who are in a vulnerable position towards certain persons because of an imbalance inherent in the nature of the relationship between them.

Mahe v. Alberta, [1990] 1 S.C.R. 342– francophone parents in Edmonton were not satisfied with the educational system in Alberta and sought a series of declarations about the meaning of their minority language rights under s. 23 of the Charter; the Supreme Court of Canada held that s. 23 requires whatever minority language education protection the number of students in a particular case warrants - governments must do whatever is practical in the situation to preserve and promote minority language education.

Association des parents de l'école Rose-des-vents v. British Columbia (Education), [2015] S.C.J. No. 21, 2015 SCC 21

Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241, [1996] S.C.J. No. 9

Verdict of Coroner’s Jury: Inquest into the death of Katelynn Angel Sampson, April 29, 2016, recommendation nos. 86, 92 (Ministry of Education); 149-151 (Toronto District School Board)

Minister of Basic Education v. Basic Education for All (20793/2014) [2015] ZASCA, 2 Dec 2015, Supreme Court of Appeal for South Africa - right to education, general principles.

Regina (Williamson and Others) v Secretary of State for Education and Employment, [2005] UK HL 15 – parents’ freedom of religion does not trump ban on corporal punishment in schools.

Belgian Linguistic Case (no. 2) 1968 EHRR 252 – minority language education rights in Europe.

Special Considerations

A child rights-based approach considers the bundle and indivisibility of the child’s rights and the need to contextualize the child’s situation accordingly, particularly in cases dealing with:

  • Integration of migrant children and newcomer youth in school settings and services
  • Pupils with special needs
  • Official language minority school-children
  • Indigenous children’s education services
  • Student and pupil privacy issues in relation to video-surveillance, cell phones, lockers, personal privacy
  • Bullying, cyber violence and schools
  • School services and LBGTQ pupils
  • School services and youth in care of the State
  • School services and youth in conflict with the law
  • Discipline in school settings
  • Personal or sexual harassment in school settings
  • School appeal processes
  • Educational choice in school services
  • Religion and educational services
  • Custodial and non-custodial parents
  • School sports and extra-curricular educational services
  • Implementing children’s rights in educational services and policy-making
  • Rights respecting schools

Practice Essentials

  • Alert educational service providers to the child’s right to participate (receive information, express views and have them considered) in all decisions affecting the child
  • Assist the child to be heard when you are counsel to their guardians ad litem in school board appeals
  • Ensure educational services serve the child’s best interests
  • Educational providers and parents who provide guidance to the child are jointly responsible as primary care providers and duty bearers to children in educational settings