THE LAW IS
A LEGAL RIGHTS GUIDE FOR
CANADIAN CHILDREN AND TEENS
1. Introduction to the Law and Your Rights
2. Being a Minor
3. Being Your Parents’ Child
4. Going to School
5. Going to Work
6. Love, Sex, and Marriage
7. Child and Family Services
8. Being in Conflict with the Law
9. Fighting for Your Rights
APPENDIX A. Glossary of Legal Terms
APPENDIX B. How a Bill Becomes Law
APPENDIX C. Useful Resources
APPENDIX D. Legislation, Conventions, Charters, and Court Cases
“Why should young people care about the law?” This is a question some of you may have as you begin reading this book. The answer is that the law defines specific rights and responsibilities that apply to young people as well as to adults. Our rights oblige other people to treat us in certain ways; our responsibilities oblige us to behave in certain ways. Many people are more interested in their legal rights than in their responsibilities—but the two go hand in hand. If you don’t know what your legal responsibilities are, you can get into trouble. Similarly, if you don’t know what your legal rights are, you won’t know what to expect or what to ask for from others.
You may already have heard things from other people about rules that the law makes for you. Perhaps you’re not sure exactly what these rules are, though, or perhaps you’re wondering whether what they told you is really true. And even if you haven’t been told anything, children and young people are often curious about questions like these:
• Are parents allowed to spank their children?
• What rules can my school make?
• Can I make any of my own decisions before I turn 18?
• If my parents get a divorce, can I decide which one I’m going to live with?
• Can my parents kick me out of the house? And if they can, how old do I have to be before they can do that?
• What can happen to me if I’m arrested?
• If I feel like I’m not being treated fairly, who can help me?
We have written this book to answer such questions, as well as a great many others. Our aim is to give you a detailed but practical guide to the laws in Canada that determine what your rights and responsibilities are and at what age a given law may apply to you. We will also tell you about what resources exist to help enforce the rights you do have and what strategies you might use to defend or enhance your rights.
We hope that, as you read, you will realize that you do have some rights under the law, even though those rights are still rather restricted. In some situations, you may indeed have the law on your side if you wish to make your own choices or do things that are normally thought of as adult activities. All the same, the law still usually sees young people as having only a limited ability to make sensible decisions for themselves, and so it gives adults the power to control them in numerous ways.
We also hope that we can help you steer clear of incomplete or inaccurate advice. Some people have misguided ideas about what the law actually says. They may be interested in the law, but they may not understand its rules very well, and so they can spread inaccurate information even if they don’t mean to do so. For that reason, it can be risky to just believe whatever someone tells you about the law. Even websites that provide advice about the law are sometimes not entirely reliable. The information may be incomplete or out of date, or the people who wrote the information may have misinterpreted what the law says. In other words, if you want to get to know your legal rights and responsibilities, you need a trustworthy source of information.
Our goal is to provide you with such a source. Although we have tried to cover a lot of different topics, laws vary a lot from one part of the country to another, and we cannot cover all of them in one book. You may want to find out more about certain issues on your own. You can try to read the law yourself and see what it says, and we hope you will, but legal documents can be easier to make sense of if you know how to read them. We will tell you where to find some of the important laws and explain a little of how to understand them. We will also give references to some of the rules of the law in the book, so you can check what they say for yourself if you want, and we provide a glossary of legal terms in appendix A. Terms defined in the glossary appear in bold the first time we use them.
As we have said, the legal rights of children and teens in this country are currently rather limited, but laws have changed before, and they can change again. New laws are passed or existing ones altered when attitudes within a society change. Back in the nineteenth century, for instance, the law gave young people extremely few rights of their own. If a family needed money, children could be forced to work long hours in factories or in other jobs, rather than being given an education. Gradually, though, people came to feel that this was unfair, and so laws were passed that set limits on child labour. And, over the years, young people have continued to acquire greater rights. In 1970, for example, the voting age in Canada was lowered from 21 to 18, and now some people argue that it should be dropped further, to 16. Internationally, the United Nations has done much to challenge governments to respect the idea of “children’s rights” or “youth rights.” The United Nations Educational, Scientific and Cultural Organization (UNESCO) proclaimed 1979 to be the International Year of the Child, and, in 1989, the UN adopted the Convention on the Rights of the Child, about which we will have more to say in chapter 1. Canada ratified the Convention in 1991, and, today, numerous countries have laws that require adults to treat youth more like people whose opinions matter.
We find such changes encouraging, and we hope that you do as well. All the same, you will find that the rights youth have in this country, especially rights to make their own decisions, are very limited. We’re disappointed that, despite recent improvements, the law still doesn’t care very much about your need for independence. It’s true that many laws are meant to protect you, perhaps because people suppose you to be immature and vulnerable. But these so-called protections often stop you from doing things just because you are under a fixed age, without giving you a chance to prove you might actually be capable of doing them. Getting a driver’s licence is just one example of such things (see chapter 2). Not only does the law greatly limit even competent youth, but in our opinion it also doesn’t require adults to pay nearly enough attention to young people’s emotional needs. Perhaps, for instance, after reading chapter 3, you may come to believe as we do that the law should require judges to respect children’s wishes when making decisions about parental custody.
These are just a few examples of the reasons why we think Canadian youth should be asking for more legal rights. At the same time, we will say very little in this book about exactly what rights we think you should have. That is a very complex question, and we encourage you to think for yourself about what rights adults should give you and to find good reasons why you should be given those rights.
There’s a lot of information in this book, not only about specific laws but about your rights, about Canada’s legal system, and about what you can (and cannot) expect to get from the law. We hope that this information will be useful to you—that it will answer questions you might have and show you how laws about young people affect your life. We also hope that you will think about the way the law treats youth and what it assumes about them. Finally, we hope that adults who read this book will stop to consider how our laws might do more to support and respect the basic human rights of children and youth in this country.
We wish to extend our heartfelt gratitude to Trish McCracken and E. Roy Harvey for providing information on how education law works in practice and to Police Sergeant (retd.) Jim Roberts for similar information about the enforcement of criminal and provincial laws. We would also like to thank everyone on the AU Press team, particularly our editor, Pamela Holway, for their relentless efforts in making this book a reality.
THE LAW IS
NOTE: This book is based on the laws of Canada as they stood on February 1, 2019.
INTRODUCTION TO THE LAW AND YOUR RIGHTS
Before we start talking about specific laws, it would be useful if we explained where laws come from, what they look like, and where to find them. This information will give you a general sense of how the law operates. In addition, we would like to say something about the notion of rights and their relationship to the law, as well as about rights for children and youth.
One thing you should keep in mind from the start is that laws differ to some extent depending on where in Canada you live. Why is that? The answer has to do with how our country is set up. Canada is a federation: a country divided into smaller units—in our case, ten provinces and three territories—that have their own governments. In fact, Canada has three levels of government: the federal government, based in Ottawa; provincial and territorial governments; and local, or municipal, governments. Each of these levels of government has the power to make laws about certain things. For example, each province or territory gets to decide how old you have to be to get a driver’s licence, while each city or town gets to decide where to build schools and hockey rinks. The part of the country in which a government’s laws apply is called that government’s jurisdiction. Laws made by the federal government apply to the entire country (except for a few that are meant to cover only some provinces or territories), whereas laws made by the two lower levels of government apply only in a particular province or territory or else only in a specific municipality. So precisely which sets of laws apply to you depends on where you live.
Many of the laws that affect young people are provincial laws, rather than federal ones. Your local government may also have laws that affect you—curfews, for instance. This means that the people who are responsible for enforcing these laws—such as police officers, social workers, public lawyers, or school principals—often work for either the province or territory in which you live or else for your local government. When you have a question or a problem, it’s important to know which level of government deals with your issue and where you can go to find the help you need. This book will explain how to find these things out.
The powers of the federal government and of the provinces and territories to make laws are laid out in Canada’s Constitution—specifically, in sections 91 and 92 of the Constitution Act, 1867.1 If you need to prove your citizenship or if you get married (see chapter 6), if you open a bank account (see chapter 2) or are convicted of a crime (see chapter 8), then you will encounter procedures and rules established by federal law. Citizenship, marriage, and divorce, the regulation of banking and commerce, and the establishment of federal penitentiaries are some of the many areas listed in section 91 of the 1867 Constitution Act in which the federal government is entitled to make laws. The federal government also has the power to define what counts as criminal behaviour.
However, if you want to make your own choices about which classes to take in school (see chapter 4), if you want to earn money with a part-time job (see chapter 5), or if your family is involved with social services (see chapter 7), then you are dealing with systems and rules that are under provincial or territorial jurisdiction. Section 92 of the 1867 Constitution Act grants provincial and territorial governments the power to make laws about many subjects, including employment and workers’ rights, the education system, health and social services, and the ownership of property. In addition, provinces and territories hold jurisdiction in the area of civil law (also known as private law)—that is, rules that govern relations between private citizens, which include laws about how parents must treat children. Unlike federal laws, these laws apply only in a specific province or territory. As for the third level of government, each province or territory is responsible for the municipalities that are found within it and can delegate certain powers to them. As a result, municipal governments—city councils, for example—can pass their own laws on local matters, such as zoning, street cleaning, recreational facilities, curfews, and garbage collection.
First Nations reserves are a special case. According to section 91 of the 1867 Constitution Act, the federal government has jurisdiction over “Indians, and Lands reserved for the Indians.”2 The relationship between the Canadian state and First Nations is laid out in detail in a document called the Indian Act (https://laws-lois.justice.gc.ca/eng/acts/i-5/), which was first written in 1876 and has since been amended several times (most recently in 2017), as well as in various treaties negotiated between specific bands—that is, First Nations groups—and the Canadian government. According to the Indian Act, reserve lands are held by the federal government: these lands do not belong to the province in which they are located. All the same, most provincial laws apply on reserves, and so do many federal laws, such as the Criminal Code of Canada. In addition, most reserves have their own governments, led by band councils or tribal councils, which are responsible for certain community matters such as policing, schools, and child welfare services. But the federal government still gives Indigenous communities only limited power to make their own decisions.
Enforcing the Law
When someone says “law enforcement,” we usually think of the police arresting people who have committed a crime and should be punished for it. But laws are enforced not simply for the sake of punishing wrongdoers but in order to protect people’s rights—and even someone who has broken the law has rights. After all, if no one enforced the law, there would be no point to having laws in the first place.
Government agencies employ many people who help to ensure that our rights under the law are respected and that we likewise respect the rights of others. Here are some of those who might be in a position to help you if you have a problem:
• The police are supposed to protect public safety, help people in danger, and enforce the law by arresting those who break it and taking them into custody. You will learn more about what they can and cannot do in chapter 8.
• Social workers are trained to help individuals, families, and communities cope with difficult situations. Some work in family service agencies, where they can help children and youth who are victims of abuse or neglect. Some work in other settings, like group homes and hospitals, where they can help individuals and families deal with other kinds of problems and challenges, such as health issues. You will find out more about what social workers do in chapter 7.
• Ombudsmen (sometimes called ombudspersons or simply ombuds) are public officials whose job is to help citizens who think that a public agency or office isn’t respecting their rights. Most provinces and territories have an ombudsman for children, often called a child and youth advocate, who works to protect the rights of young people who must deal in some way with government agencies. Child and youth ombudsmen and advocates spend much of their time responding to the complaints of young people who are either in foster care or else involved with the criminal justice system, but they may also help youth who have other complaints. Appendix C provides a full list of youth advocates—and, in the last chapter in this book, you will find some ideas on how to advocate for yourself.
While all these people help to make sure that laws are obeyed, responsibility for enforcing the law ultimately lies with the judicial system—that is, judges and courts. The job of the courts is to resolve disputes and, beyond that, to oblige people to abide by the law and respect the rights of others. If someone is accused of a crime, it’s up to the courts to determine whether enough evidence exists to find the person guilty and, if it does, then to decide what sort of punishment is appropriate. Although judges do have the power to send someone to jail, they can also order people simply to pay a fine and/or to do something to make up for what they have done wrong, such as honouring a contract or debt or performing a community service.
While going to court is one way to settle a dispute, not every dispute needs to end up in court. Less serious complaints can often be resolved by one of the many legal boards and tribunals that exist both at the federal level and in every province or territory. Most provinces and territories have a Labour Relations Board, for instance, while, at the federal level, examples include the Canada Industrial Relations Board, the Canadian Broadcast Standards Council, and the Canadian Human Rights Tribunal. These various boards and tribunals are not officially part of the court system, but they have the power to make judgments about specific questions or disputes that have a relatively limited scope and are therefore unlikely to have broader consequences or implications. If someone feels that the resulting judgment wasn’t fair, there’s always the option of taking the matter to court for further review.
Canada has several different kinds of courts, which are arranged in levels, from lower to higher:
• provincial or territorial courts (inferior courts)
• provincial or territorial superior courts
• provincial or territorial courts of appeal, the Federal Court of Appeal, and the Tax Court of Canada
• the Supreme Court of Canada
Provincial or territorial courts hear a wide range of civil cases (including those relating to youth), as well as some criminal cases. These cases can involve either federal laws or laws specific to that province or territory. Provincial or territorial superior courts hear especially serious criminal and civil cases and also serve as the first court of appeal in their area of jurisdiction. In several provinces, the superior court is called the Court of Queen’s Bench, while several other provinces call their superior court the Supreme Court of that province.
Perhaps you have heard of someone appealing a judge’s decision. This means they are asking a judge in a higher court to review the decision and decide whether it was fair. This is the task of the courts of appeal (also known as appellate courts) in each province and territory and likewise of the Federal Court of Appeal, which only considers cases that relate to federal laws. Some appeals go all the way up to the Supreme Court of Canada, the highest court in the land, which is the final place where decisions made by lower courts can be examined and reconsidered. The Supreme Court has nine judges—a chief justice and eight puisne (junior) justices—who work together to make the final decision.3
Judges are often asked to decide how a law should be interpreted and whether it applies in a particular case. In addition, the courts can rule on whether a law respects the Constitution. Both the Supreme Court and the superior courts in each province have the power to find a law unconstitutional. In that case, the law is invalid and can no longer be enforced.
So Where Do Laws Come From?
The law is a complex system, which is why we often need help from people like lawyers and ombudsmen, who understand how it works. The law is complicated partly because, as societies evolve, so does the law: new laws are passed, while others are revised or repealed. The Cannabis Act is a good example of this. Over the years, many Canadians had come to feel that marijuana was no more harmful than alcohol, and one of the things the Liberal party promised to do if elected in 2015 was to legalize cannabis.
But the law is also complicated because it comes from more than one place. We tend to think of “the law” as lists of rules neatly laid out in documents like the Criminal Code of Canada. But, while this is true of some laws, it’s not true of the law as a whole. In most of Canada (Québec is the exception), there are two main kinds of law: statutes and common law. Statutes are laws that have been passed by Parliament or by provincial or territorial legislatures. A statute starts out as a bill, that is, a proposal to create new legislation or to alter an existing law. Once a bill is introduced into Parliament or a provincial or territorial legislature, it receives multiple rounds of discussion and debate before it is finally either passed into law or defeated (a process we describe in detail in appendix B). Statutory laws are collected in multi-volume publications such as the Revised Statutes of Canada or the New Brunswick Acts and Regulations, which makes them relatively easy to find.
In contrast, common law consists of a large body of rules that come from decisions made by the courts. These rules are not listed in one place but are found in the written decisions of judges in particular court cases (which is why common law is sometimes called “case law”). Today, there are thousands upon thousands of court decisions, so lawyers who are working on a case sometimes have to do a lot of research to find decisions that are relevant to their case. Common law started developing in England during the Middle Ages, when disputes were brought before the king’s judges, who would then make decisions based on what seemed fair to them. Over time, as more and more cases were brought before courts, legal rulings piled up, and these rules collectively came to be known as common law.
The concept of a precedent is particularly important to common law. When a judge makes a decision in a new case (that is, a case unlike any of those that have previously come before the courts), the judge’s decision in the case creates a precedent—a rule or a principle that judges are then expected to follow when deciding similar cases. The notion of following precedent is founded on a legal principle called stare decisis, which means “to stand by what was decided.”
How far a judge is obliged to follow precedent depends on the level of the court. If the precedent was set in a lower court, then judges deciding similar cases at the same level of court are expected to regard this rule as persuasive. That is, they’re supposed to take it into account and make decisions in a way that is consistent with the earlier decision. If the precedent was set in a higher court, however, judges in lower courts in that same province or territory must abide by this earlier rule when called upon to decide similar cases. In other words, a precedent established by a higher court is binding on lower courts in the same jurisdiction.4 Similarly, if a legal ruling made by a higher court differs from an earlier ruling made by a lower court, then the new rule becomes the precedent, replacing the older one. However, unlike lower courts, higher courts are not bound by their own decisions. The Supreme Court, for example, may make a ruling and then, at some later date, when another case comes along, may decide to make a different ruling—in which case the newer rule again replaces the older one as the precedent.
If you look at some of the court cases listed in appendix D, you’ll see that these decisions run to many pages. But not everything that a judge says in a written decision is part of the precedent—only the final decision itself and the parts of the judgment in which the judge explains the reasoning that led to the decision. In writing decisions, judges may make statements about how certain laws should be interpreted or how an existing law applies (or doesn’t apply) in a particular situation. But unless these statements play an essential part in the judge’s final decision, they are not binding—although other judges may draw on them for guidance in making decisions about future cases.5
This system means that, if you have a legal question, you won’t necessarily find your answer in a statute: the answer may actually lie in a court decision, possibly one that was made decades ago. Having two different sources of law might seem like a recipe for confusion—so how do these two bodies of law work together? Simply put, statutes trump common law: a judge cannot make a decision that violates a statute. If, at some point, a new statute (or an amendment to an existing one) is enacted that differs from a rule of the common law, that rule is now invalid: judges must abide by the statute.
Finally, we should point out that the common law system is basically an English tradition. When it comes to matters of civil law, Québec doesn’t rely on the system of common law used elsewhere in Canada. Instead, Québec law uses the Civil Code of Québec, a long list of rules and regulations that affect relations between private citizens (including family members) within the province. The use of a civil code is characteristic of French legal tradition.
How Statutes Are Written
Statutes generally follow a standard written form, which always starts with a title. Normally, there will be a long version of the title and a short version, which is the commonplace name of the law. For example, “An Act in respect of criminal justice for young persons and to amend and repeal other Acts” is the long title of the statute whose short title is the “Youth Criminal Justice Act.” Below the title, there may be a preamble—an opening section (usually fairly short) that explains the general purpose of the statute. For instance, the preamble of the Youth Criminal Justice Act contains the statement, “Canadian society should have a youth criminal justice system that commands respect, takes into account the interests of victims, fosters responsibility and ensures accountability through meaningful consequences and effective rehabilitation and reintegration, and that reserves its most serious intervention for the most serious crimes and reduces the over-reliance on incarceration for non-violent young persons.” This sets out some of the general principles that the act is intended to serve.
Now let’s look at how an actual statute is set up. If a statute is very long and detailed, its text may be divided into several parts or divisions to separate major topics. But, regardless of whether such part divisions exist, statutes are typically divided into numbered units called sections, which separate the text into specific points. Here is the beginning of section 29 of the Youth Criminal Justice Act (https://laws.justice.gc.ca/eng/acts/Y-1.5/index.html):
29. (1) A youth justice court judge or a justice shall not detain a young person in custody prior to being sentenced as a substitute for appropriate child protection, mental health or other social measures.
Justification for detention in custody
(2) A youth justice court judge or a justice may order that a young person be detained in custody only if
(a) the young person has been charged with
(i) a serious offence, or
(ii) an offence other than a serious offence, if they have a history that indicates a pattern of either outstanding charges or findings of guilt.
As you can see, section 29 is divided into smaller units, which are numbered in parentheses. These are called subsections. (Section 29 actually has a total of three subsections, but only the first one and part of the second are shown above.) “Justification for detention in custody” is a heading added for the convenience of readers to summarize the subject of subsection (2). Subsection (1) is not subdivided, but subsection (2) is further broken up into paragraphs, which are marked with lowercase letters in parentheses. This subsection is divided into paragraphs because there is more than one possible reason for a judge to decide to “order that a young person be detained in custody”—although we have shown you only the first possible reason, which is identified in paragraph (a). If you look at the act, you’ll see that there are two more reasons, which are given in paragraphs (b) and (c). Paragraph (a) is then further divided into two subparagraphs, marked with lowercase roman numerals in parentheses: (i) and (ii). All statutes follow a similar system of organization, although the terms used for the different levels can vary a little. For example, many provincial statutes have clauses instead of paragraphs, while the Civil Code of Québec has articles instead of sections.
This kind of logical, methodical organization of a statute—breaking it down into sections, subsections, and so on—is very helpful for lawyers and judges. If a lawyer is arguing that a young person should not be kept in custody, the lawyer needs to give a good reason why, and that reason needs to be clearly justified by the law. So, for instance, the lawyer could point out that the young person in question has not been charged with “a serious offence” and then give the reason as “subparagraph 29(2)(a)(ii)” of the Youth Criminal Justice Act. This is where precedent can become important. Have there been other cases in which a closely similar offence was in fact judged to be serious—or explicitly judged not to be serious? The judge will need to consider those cases in order to decide whether the lawyer’s argument is valid.
Legal language tends to be very precise. So, when you read a statute, you’ll need to keep in mind the following points in order to understand exactly what it means:
• Statutory laws often use certain key terms in a very specific way. In such cases, the law will define these terms, usually in a separate section at the beginning of the law. These definitions apply only to that law; the same terms may have a slightly different meaning in another law. (Sometimes these definitions apply only to a specific part of the law, in which case they will appear at the beginning of that part.)
• When a statute says that someone shall do something, this means that the person has a duty to do it. In other words, you must do that thing. When a statute says that someone may do something, this means that the person has the option of doing it but is not obligated to do it. In our example here, the judge “may” detain in custody a young person who has been charged with a serious offence, but the judge doesn’t have to do so.
• In legal language, if the word and appears before the last item in a list of conditions (a, b, and c), this means that all those conditions must be fulfilled in order for something to happen. If the word or is used instead of and, this means that only one of those conditions must be fulfilled. In our example here, the word or between subparagraphs 29(1)(a)(i) and 29(1)(a)(ii) means that the judge may detain the offender if the offence is “serious,” even if there is no “history that indicates a pattern.” Both conditions need not be present—one or the other is enough.
Existing statutes are constantly being amended. Rather than rewrite the whole law, an amendment to a statute will state what parts of the existing law are to be changed, either by indicating what part of the text is to be rewritten and how or else by adding new text. Sometimes it will be necessary to add whole sections between existing ones; this is usually done by using a decimal system. For example, when a new section about expulsion was added to Ontario’s Education Act, this section logically fit between sections 311 and 312 of the existing act, so this new section was numbered 311.1.
Where to Find Laws
The common law, as we explained above, is found in a wide array of written court decisions, the text of which is published. In the case of statutes, the Department of Justice publishes full, up-to-date versions of important federal laws with all amendments in place on its Justice Laws Website (https://laws-lois.justice.gc.ca/eng/); these versions are the official ones. Provincial and territorial governments also publish their laws online. (Paper copies of statutes can be hard to get; they are mainly found in law and reference libraries.) However, the most comprehensive online resource is the website of the Canadian Legal Information Institute (CanLII): https://www.canlii.org/.
On its home page, the CanLII provides links to every major jurisdiction in Canada—federal and provincial or territorial. From there, you can access all the statutes and regulations (government orders that spell out specific legal procedures and requirements) currently in force in that jurisdiction. But you can also access decisions made by courts in each jurisdiction, as well as judgments made by boards and tribunals; these are organized by the name of the court or of the board or tribunal. For someone doing legal research, however, the greatest advantage to the site is its search function. It’s not very difficult to figure out how to use the site, and it can be very useful.
Even so, trying to find the answer to a legal question all on your own can be challenging. For one thing, legal language tends to be very dull and dry (although this is partly because the wording of legal documents has to be very precise), and it can also be quite difficult to understand if you’re not used to it. Moreover, once you’ve found a law that has to do with the topic you’re researching and have located the part of the law that relates to your question, you may think you have the answer—but the full answer may actually be found in a combination of several laws or in several parts of one law or in a law plus one or more court decisions. It is particularly difficult to research court decisions, as cases can span many years and many courts—sometimes not only Canadian courts but British ones as well. For these reasons, if you have an actual legal problem of your own, it is best to talk to a lawyer or an ombudsman, who may already know what your rights are and what can be done in your situation. If not, they can certainly help you find out and make sure that the information you have is accurate and complete.
Laws and Rights
People often look to the law to protect their rights. But what exactly is a “right”? Basically, a right is a claim about what someone deserves or is owed. The right to free speech, for example, means that people deserve to be able to express their ideas and opinions. However, in order for a claim to be considered a right, the claim must be justified in some way. That is, the person claiming the right must be able to offer a convincing reason for why he or she is owed that thing. You could claim that you have a right not to do school homework, but you might have a hard time persuading your parents and teachers that this is indeed your right.
Pointing to an existing law is one way to justify the claim to a particular right. Rights that are backed up by laws are known as legal rights—although this isn’t quite as simple as it sounds. Some laws actually do talk in terms of rights. For example, according to section 8 of Canada’s Constitution Act, 1982, “Everyone has the right to be secure against unreasonable search or seizure.” Often, though, the existence of a right is only implied in what a law says. To use our earlier example, paragraph 29(2)(a) of the Youth Criminal Justice Act says that a judge cannot keep a young person in custody unless that young person has either committed a serious offence or has a history of being arrested for less serious offences. From this, you can conclude that, as a young person, you have a legal right not to be kept in custody if neither of these conditions is present. But it can sometimes be hard to figure out, on the basis of what a law actually says, whether it upholds an underlying right (and, if so, what that right is). In fact, even when the law explicitly states that we have a right to be protected from an “unreasonable” search, there can be arguments about what sort of search is unreasonable.
To complicate matters further, not all rights are backed up by laws. Although the law gives us a means to justify our claim to a right, the ultimate justification for our most important rights is a shared sense of what is fair and what people naturally deserve to have or receive or be able to do. Such rights are sometimes called moral rights—rights that are justified on the basis of ethical principles that most human beings would probably defend. One very important example of such rights, which was created in 1948 by the United Nations, is the Universal Declaration of Human Rights (https://www.un.org/en/universal-declaration-human-rights/)—a list of thirty articles that describe the basic rights to which all human beings are entitled.
The only problem is that it can be difficult to enforce a moral right unless it is protected by law—and a declaration made by the United Nations doesn’t have the binding force of a law. For example, article 5 of the Universal Declaration of Human Rights states: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” In Canada, this right is protected by section 12 of our 1982 Constitution Act, which reads: “Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.” Many other countries have similar laws, but not all do—and if they don’t, then, despite the UN declaration, people in that country could legally be tortured. Furthermore, even when the law says you have a legal right to something, whether this right will actually be enforced can depend on how willing people in power are to protect your rights or on whether they have the resources they need to do so. This is one reason why we have ombudsmen and courts—so that we have a place to go if someone who is supposed to enforce our rights isn’t doing so.
The most important statement about the rights of people who live in Canada is the Canadian Charter of Rights and Freedoms, which is part of the Constitution Act, 1982 (and from which the two examples above are drawn). The Charter contains a list of fundamental human, political, and civil rights that all levels of government and all laws made in Canada must respect. Many existing laws have been challenged in court because someone argued that they violated the Charter of Rights and Freedoms. In chapter 4, for instance, you will read about laws that have been changed because the courts have ruled that section 15 of the Charter, which, among other things, protects people from discrimination on the basis of “sex,” also protects them against discrimination on the basis of sexual orientation.
In addition to the Charter of Rights and Freedoms, another federal law, called the Canadian Human Rights Act (https://laws-lois.justice.gc.ca/eng/acts/h-6/), also protects people against discrimination. This act, which was passed by Parliament in 1977, created the Canadian Human Rights Commission. In addition, provinces and territories have their own human rights legislation, such as the Ontario Human Rights Code, the Northwest Territories Human Rights Act, and Québec’s Charte des droits et libertés de la personne (Charter of Human Rights and Freedoms). Like both the Canadian Charter of Rights and Freedoms and the Canadian Human Rights Act, provincial or territorial human rights acts generally prohibit discrimination on the basis of age. If you look closely, however, you’ll see that a number of provinces explicitly define “age” to mean the age of majority and above. Moreover, most provincial or territorial acts contain specific rules relating to the age at which a person is eligible for something. In other words, when “discrimination” is prohibited, this is understood to mean illegal discrimination—and, when a question arises, it’s up to the courts to decide what is illegal.
Do “Children’s Rights” Exist?
At some point, you may have heard about the existence of “children’s rights,” “teen rights,” or “youth rights.” Such a list of rights does in fact exist; it’s called the Convention on the Rights of the Child (https://www.ohchr.org/en/professionalinterest/pages/crc.aspx). This is an international treaty, which was formally adopted by the United Nations in 1989 and ratified by Canada in 1991, and it lays down rights that every young person in the world is entitled to have.
Although the earliest laws designed to protect children were passed back in the nineteenth century, the idea of children’s rights is relatively new. In 1923, a British woman named Eglantyne Jebb, the founder of Save the Children, wrote what became the first international statement about ...