How is the CRC Interpreted by Canadian Courts?
Mavis Baker arrived in Canada as a visitor in 1981. She remained here after her visitor’s visa expired and she supported herself illegally as a live-in caregiver. While in Canada she had four children, all of whom are Canadian citizens. In 1992 she was ordered to be deported after it was discovered she had overstayed her visa and worked illegally.
To gain legal residency status in Canada the Immigration and Refugee Protections Act (IRPA) required Ms. Baker to complete a lengthy permanent residence application process from outside Canada. In 1993, she applied for an exemption to apply for her permanent residence from within Canada based on humanitarian and compassionate (H&C) grounds. Her health was poor and she was the caregiver and emotional support for her Canadian children. Ms. Baker argues that the refusal of the exemption was unfair. She also argued that the Convention on the Rights of the Child required the government to consider the impact on her children and that the best interests of the child principle required that she be allowed to stay in Canada.
The SCC ruled in favour of Ms. Baker and allowed the appeal because there was a violation of the principles of procedural fairness and because the decision was made in an unreasonable manner.
In Baker v. Canada, the courts said “the values and principles of the Convention recognize the importance of being attentive to the rights and best interests of children when decisions are made that relate to and affect their future.” However, it did not use the Convention as basis for its decision.
CFCYL v. Canada (Attorney General)
The Canadian Foundation for Children, Youth and the Law (CFCYL) is an organization dedicated to the protection of children’s rights. In November 1998, the CFCYL applied to a court asking for a declaration that section 43 of the Canadian Criminal Code is invalid because it legalizes the use of corporal punishment against children for the purpose of correction. In other words, children are the only group in society that can be legally assaulted as a means of discipline. CFCYL argued that s.43 was unconstitutional and violated numerous sections of the Canadian Charter of Rights and Freedoms, as well as the United Nations Convention on the Rights of the Child.
The Supreme Court of Canada found that s.43 was constitutional, upholding the previous decisions of the lower courts. Despite this, the Supreme Court established some legal guidelines and limitations to be used when determining what degree of force would be considered “reasonable under the circumstances”. The Supreme Court held that spanking is only acceptable for children between the ages of 2 – 12, that the use of objects such as belts or hitting in the head is not permissible, and that no child should be hit in anger or out of frustration. The Supreme Court also added that teachers should not be permitted to strike students, but that limited force is allowed in order to restrain students during a violent outburst. The Court considered the Convention as a guide to interpreting Canadian law, but did not rely on it.
Both of these cases involved three types of law:
- Statutory law - The Criminal Code of Canada or Immigration and Refugee Protections Act
- Constitutional - The Canadian Charter of Rights and Freedoms
- International - The United Nations Convention on the Rights of the Child
Case Study Activity – What’s Your Opinion?
Have students research the following questions and prepare their opinions, and the research that supports it, on each question. If appropriate, conduct an in class debate on the whether or not Canadian courts should rely on the Convention of the Rights of the Child when making decisions, or whether domestic law is sufficient.
- In both cases, the Court discussed the importance of the Convention on the Rights of the Child, but chose to makes its decision on one of the other types of law. Why do you think the court might choose not to apply international human rights law in Canada?
- Do online research into Canada’s compliance the international human rights law. Who is arguing that Canada should do more? less? What other perspectives or opinions on these issues can you find?
- If the same result can be achieved, do you think it matters whether the Court relied on an international rights document of a domestic law? Explain.
