Chapter 1 INTRODUCTION TO THE LAW AND YOUR RIGHTS

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 a specific ombudsman for children, often called a child and youth advocate (in Prince Edward Island, for example), 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.

Although all these people help to make sure that laws are obeyed, responsibility for enforcing the laws may ultimately lie 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 as well as some criminal cases and youth matters. These cases can involve either federal laws or laws specific to the province or territory. Provincial or territorial superior courts hear more serious criminal and civil cases and may serve in some cases as the first courts of appeal in their jurisdictions. The superior court is also called the Court of King’s Bench in some provinces, whereas in several other provinces it is called the Supreme Court.

Perhaps you have heard of someone appealing a judge’s decision. This means that the person is asking a judge in a higher court to review the decision and decide whether it was made fairly and according to the law. This is the task of the courts of appeal (also known as appellate courts) in the provinces and territories and likewise of the Federal Court of Appeal, which considers cases that relate primarily 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 law that comes from decisions by the courts. These laws are not listed in one place but 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 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 case, usually at the highest court level (that is, a case that may raise issues that previously have not come before the courts), the judge’s decision in the case creates a precedent—a rule or principle that judges are then expected to follow when deciding similar subsequent 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.⁶

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 example, the preamble of the Youth Criminal Justice Act states, in part, “AND WHEREAS 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 34 of the Youth Criminal Justice Act (http://laws.justice.gc.ca/eng/acts/Y-1.5/index.html):

Medical or psychological assessment

34 (1) A youth justice court may, at any stage of proceedings against a young person, by order require that the young person be assessed by a qualified person who is required to report the results in writing to the court,

(a) with the consent of the young person and the prosecutor; or

(b) on its own motion or on application of the young person or the prosecutor, if the court believes a medical, psychological or psychiatric report in respect of the young person is necessary for a purpose mentioned in paragraphs (2)(a) to (g) and

(i) the court has reasonable grounds to believe that the young person may be suffering from a physical or mental illness or disorder, a psychological disorder, an emotional disturbance, a learning disability or a mental disability

(ii) the young person’s history indicates a pattern of repeated findings of guilt under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, or

(iii) the young person is alleged to have committed a serious violent offence.

As you can see, section 34 is divided into smaller units, which are numbered in parentheses. These are called subsections. (Section 34 has a total of fourteen subsections, but only the first one is shown above.) “Medical or psychological assessment” is a heading added for the convenience of readers to summarize the subject of subsection (1). Subsection (1) 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 “require that the young person be assessed by a qualified person who is required to report the results in writing to the court .” Paragraph (b) is then further divided into three subparagraphs, marked with lowercase roman numerals in parentheses: (i), (ii), and (iii). 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 be given a psychological assessment, then 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 can point out that the young person in question is suffering from a mental disability and then give the reason as “subparagraph 34(1)(b)(i)” of the Youth Criminal Justice Act. This is where precedent can become important. Have there been other cases in which a medical or psychological assessment was ordered for a youth in closely similar circumstances—or explicitly not ordered? 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” order a young person to be assessed by a qualified person, 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 34(1)(b)(ii) and 34(1)(b)(iii) of the Youth Criminal Justice Act means that the judge may, for certain purposes, order an assessment of their own will or on the request of the young person or the prosecutor if either (1) the court believes that the youth is suffering from a disability or disorder, (2) the young person has a history of being found guilty of crimes, or (3) the young person has been charged with a “serious violent offence.” All three conditions need not be present—one of them 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): http://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 another example from criminal law, paragraph 29(2)(a) of the Youth Criminal Justice Act says that a judge cannot keep a young person in custody unless that person has either committed a serious offence or has committed a less serious offence but also has a history of being charged or of being found guilty. 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 (together with further conditions described in paragraphs (b) and (c). 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, then 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 (http://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.

It can be very difficult, if not impossible, 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 reflected in section 12 of our Constitution Act, 1982, which reads: “Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.” Some countries have similar laws, but not all do. Despite the UN declaration, people in a particular country could be tortured legally (provided that they have not made the UN declaration part of their domestic laws). 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 (http://www.ohchr.org/en/professionalinterest/pages/crc.aspx). This is an international treaty that was formally adopted by the United Nations on 20 November 1989 and ratified by Canada on 13 December 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 children’s rights, consisting of five brief points that summarized what children everywhere are entitled to. The following year, the League of Nations (the forerunner of the United Nations) adopted her statement, which came to be known as the Geneva Declaration of the Rights of the Child. In 1948, the UN General Assembly adopted a slightly expanded version (containing seven points), which became the basis for the UN’s Declaration of the Rights of the Child, a set of ten principles adopted by the General Assembly in 1959. Like its predecessors, however, this was merely a declaration, which lacked the power to be legally binding. Then, in 1978, Poland proposed writing a Convention on the Rights of the Child. Unlike a declaration, a convention is an international treaty, which can be legally binding on the states that agree to it. So, in 1979, the UN set up a working group to write this convention. The group met in Geneva once a year, and it took them an entire decade to finish their work.

The Convention on the Rights of the Child was adopted by the UN General Assembly on November 20, 1989. Since then, it has been ratified by all the countries in the world except for the United States (which has signed it but has never ratified it). No other international treaty has achieved virtually universal acceptance. So what does this Convention say?

What the Convention on the Rights of the Child Says

The Convention is made up of a preamble and fifty-four articles, divided into three parts. Among other things, the preamble affirms that the rights and freedoms listed in the Universal Declaration of Human Rights apply to all people (including children), that it is necessary to give particular care to children and the family, and that children should be fully prepared to live an individual life in society. The first article then defines a “child” as any human being under the age of 18, except in places where, according to law, majority (legal adulthood) is attained at an earlier age.

The rights of children are laid out in the first part of the Convention (articles 1 to 41). Although the Convention itself does not divide these rights into categories, they are often viewed as falling into one of four groups: rights relating to survival, development, protection, and participation.

Survival rights entitle you to those things that keep you alive, safe, and in good health. They include:

• The right to expect your survival and development to be ensured to the maximum extent possible (article 6)

• The right to a name and nationality (article 7)

• The right to the highest possible standard of health (article 24)

• The right to a standard of living adequate for your development (article 27)

Development rights are meant to help you grow in a healthy, well-balanced way and learn what you need to be a responsible adult. They include:

• The right to know and be cared for by your parents (article 7)

• The right not to be separated from your parents without a good reason (article 9)

• The right to an education that develops your potential and values (articles 28 and 29)

• The right to opportunities for rest, play, and recreation (article 31)

Protection rights are meant to keep you safe from things that could harm your physical, mental, and emotional well-being. These rights include:

• Protection from unlawful interference with your privacy, family, and correspondence (article 16)

• Protection from all forms of violence, physical, emotional or sexual abuse, neglect, and exploitation (article 19)

• The right of disabled children to special care necessary to promote their development (article 23)

• The right to certain protections in armed conflicts (article 38)

Participation rights are meant to give you a say in matters that affect you and also confirm that various civil rights that adults have apply to young people as well. They include:

• The right to be free from discrimination on the basis of your or your parents’ race, skin colour, sex, language, religion, political beliefs, national, ethnic, or social origin, disability, or other status (article 2)

• The right to freely express your opinion on matters affecting you and to have your opinion taken into account in a manner consistent with your maturity (article 12)

• The right to freedom of expression, as well as the right to search for, receive, and share information through different media (article 13)

• The right to freedom of thought, conscience, and religion (article 14)

In short, the Convention suggests that young people deserve to be given more rights than they often are. Yet one important question that the Convention does not clearly answer is, to what extent are young people entitled to make their own decisions and exercise their rights independently? Not one article explicitly mentions the right to certain freedoms from adult control. This silence reflects the way in which the Convention was written. The working group was very large, and it operated on the principle of consensus: it had to arrive at a wording on which everyone could agree. But different cultures have different views on when and in what circumstances children are entitled to some degree of independence. Some members of the group favoured giving young people more freedom to make their own decisions, without needing permission from adults, while others felt that adults have a duty to place limits on children’s freedom in order to protect them. So, in the end, the solution was to leave the question open.

To take one example, according to article 5, States Parties (that is, states that are party to the Convention) agree to respect the “responsibilities, rights and duties” of parents and other guardians “to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.” This means that parents are supposed to take a child’s level of maturity into account when deciding how much direction and guidance to provide. What the article doesn’t say is how long parents and other guardians can go on making decisions for a child that go against the child’s own wishes. Similarly, article 14 states that, while children have the right to freedom of thought, conscience, and religion, States Parties must respect the right of parents to direct the child in the exercise of this right “in a manner consistent with the evolving capacities of the child.” Does that mean that parents can force their child to practice a religion even when the child objects—and, if so, until when can they do this? The Convention doesn’t say.

Yet even if the Convention doesn’t explicitly give you the right to make your own decisions whenever you feel ready to do so, it does give you a lot of important rights that adults are supposed to respect. But do they have a legal obligation to do so? In Canada, the answer is no.

The Convention Is Not Law Everywhere

Although, as an international treaty, the Convention has the potential to be legally binding, ratifying the Convention does not automatically mean that it becomes part of that country’s law. In fact, the power of the Convention is limited in two important ways. First of all, many of the countries that ratified it did so with “reservations.” In other words, they indicated that they may not respect one or more of its articles or that they intend to accept only part of what an article says. While this option makes it more likely that countries will ratify the Convention, it also has the potential to weaken the power of the Convention.⁷ Second, individual countries have the right to decide whether the Convention will be legally binding. In some countries, international conventions, once ratified, must be obeyed, just like the country’s own laws. But in Canada, although lawmakers are supposed to respect such treaties, they are not legally bound to do so. This is why section 43 of the Criminal Code, which allows children to be physically punished, remains in force, even though section 19 of the Convention obliges States Parties to take appropriate measures—including legislative ones—to protect children from “all forms of physical or mental violence.” (As we will see in chapter 3, the Supreme Court has at least placed certain limits on section 43.)

In short, the Convention on the Rights of the Child is not a law in Canada but more of a moral agreement. No one, not even the government, can be legally forced to abide by any of its rules.

But this doesn’t mean that the Convention has no influence in Canada. For one thing, the United Nations has a Committee on the Rights of the Child, which monitors how well countries are complying with the Convention. Every five years, all States Parties, including Canada, send a report to the committee, in which they describe what they have done to ensure that the Convention is respected. If nothing else, this puts pressure on Canada to bring forward legislation that would give some of the rights laid out in the Convention the force of law. Moreover, in drafting new laws (or amending existing ones) and in making court decisions, our lawmakers and judges do try to take the Convention into account, even if they aren’t legally obligated to do so. Perhaps, in one way, it isn’t such a bad thing that the Convention isn’t law in Canada. As we have seen, some of the articles in the Convention appear to give parents and guardians some powers to decide when to limit a young person’s independence. If everything in the Convention were legally binding in Canada, this might actually make it more complicated to pass new laws that could give young people greater freedom to make their own decisions, as these laws would conflict with parts of the Convention.

All in all, then, what the laws of Canada say about children and youth has a much greater impact on your rights than does the Convention on the Rights of the Child. Existing laws are also your best protection in cases of neglect, abuse, or exploitation. However, knowing about the Convention gives you a useful place to start should you wish to advocate for greater rights and freedoms. For example, if you think they will listen, you can talk to the adults in your life about the Convention and the rights it recommends that young people be given. Many of them may not realize that Canada has agreed, at least in principle, to respect the rules in the Convention. Moreover, as you read through this book, you can compare the laws that currently govern your life to what the Convention says about the rights of children and young people. How well the law of the land actually respects these rights is a question well worth asking.