The Charter and Constitutional Protection for Children in Canada

The rights of children under the Charter are foundational to the Convention on the Rights of the Child (CRC) in Canadian law because:

  • Courts can use the Charter as a tool of interpretation to apply the CRC
  • The Charter provides at least as much protection as international treaty rights Canada has ratified such as the CRC
  • The CRC sets the context for weighing any proposed justification for children’s Charter rights under s. 1 as it is a basis for examining what is acceptable in Canada and in other democratic societies around the world
  • Many of the CRC rights are in the Charter

International Law

Many core CRC rights are found expressly within the Charter such as CRC Article 2 that protects children from discrimination similar to s. 15 of the Charter. Others are not express but fall within Charter provisions such as consideration of the child’s views and wishes in CRC Article 12 which has been found to be part of due process within the principles of fundamental justice under s. 7 of the Charter.

The best interests of the child principle is more complicated as the Supreme Court of Canada held in Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General) (at para 7) that this principle is not a principle of fundamental justice under s. 7 of the Charter. However, it is a principle that has been upheld as not being constitutionally vague within family law proceedings and has been a major contextual factor in the s. 1 Charter analysis.

The Supreme Court of Canada has acknowledged that the CRC has been incorporated by reference within the preamble of the Youth Criminal Justice Act. This is an Act under which young people have been accorded special protection for both their constitutional and treaty rights.

For intersections between Charter and CRC rights, see our chart.

Other International Instruments

Interpretive Sources

Canadian Law

Case Law

  • Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 Per l’Heureux-Dubé, J.: “Children’s rights and attention to their interests are central humanitarian and compassionate values in Canadian society.”
  • Kanthasamy v. Canada (Minister of Citizenship and Immigration), [2015] S.C.J. No. 61, 2015 SCC 61 Per Abella J.: “International human rights instruments to which Canada is a signatory, including the Convention on the Rights of the Child, also stress the centrality of the best interests of a child: Can. T.S. 1992 No. 3; Baker, at para. 71. Article 3(1) of the Convention in particular confirms the primacy of the best interests principle.”…“Where, as here, the legislation specifically directs that the best interests of a child who is "directly affected" be considered, those interests are a singularly significant focus and perspective: A.C., at paras. 80-81”
  • Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76 Per McLachlan, C.J.: The “best interests of the child,” while an important legal principle and a factor for consideration in many contexts, is not vital or fundamental to our societal notion of justice, and hence is not a principle of fundamental justice.
  • R. v. R.C., [2005] 3 S.C.R. 99 Fish, J. (at para. 41) notes that the Youth Criminal Justice Act incorporates the CRC by reference in its preamble.
  • R. v. B. (D.), [2008] 2 S.C.R. 3 Cites Article 40 of the CRC to support the conclusion that the presumption of reduced moral blameworthiness for adolescents is a principle of fundamental justice under s.7 of the Charter and that the presumption of an adult sentence for specific offences breaches this principle. Also cites the Beijing Rules in respect of the adverse impact of publication on young people to support that the reverse onus aspect of the publication of the identity of the young person also infringes s.7.
  • A.C. v. Manitoba (Director of Child and Family Services), [2009] 2 S.C.R. 181 per Abella J. says the “best interests of the child” standard is, “consistent with international instruments to which Canada is a signatory. The [Convention] describes “the best interests of the child” as a primary consideration in all actions concerning children (Article 3). It then sets a framework under which the child’s own input will inform the content of the “best interests” standard, with the weight accorded to these views increasing in relation to the child’s developing maturity. Articles 5 and 14 of the CRC, for example, require State Parties to respect the responsibilities, rights and duties of parents to provide direction to the child in exercising his or her rights under the CRC, “in a manner consistent with the evolving capacities of the child”. Similarly, Article 12 requires State Parties to “assure the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child”.

Additional Cases