Appendix 1 - Review of Jurisprudence

Article 3(1): Best interests of the child

Canadian courts often mention or consider the best interests of the child with reference to the Convention on the Rights of the Child (CRC). The principle most often arises in the immigration context where the courts have noted that the best interests of the child are an important but not the only consideration. Cases where the best interests of the child have been mentioned or considered include:

• Munar v. Canada (Minister of Citizenship and Immigration), [2006] 2 F.C.R. 664 at para. 34.
• Su v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1081 at paras. 7, 10, 13.
• Bonil Acevedo v. Canada (Minister of Public Safety and Emergency Preparedness), [2007] F.C.J. No. 556 at para. 24
• Touchan v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 1616 at para. 14
• Varga v. Canada (Minister of Citizenship and Immigration), [2007] 4 F.C.R. 3 at para. 13.
• Allen v. Canada (Minister of Citizenship and Immigration), [2007] F.C.J. No. 8 at para. 17.
• Mauricette v. Canada (Minister of Public Safety and Emergency Preparedness), [2008] F.C.J. No. 512 at para. 27.
• Sandhu v. Canada (Minister of Citizenship and Immigration), [2007] F.C.J. No. 204 at para. 23.
• Sahota v. Canada (Minister of Citizenship and Immigration), [2008] F.C.J. No. 157 at para. 21 (refers to Varga, supra).
• Kisana v. Canada (Minister of Citizenship and Immigration), [2008] F.C.J. No. 429 at para. 22.
• Rimoldi v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1877 at para. 6.
• David v. Canada (Minister of Citizenship and Immigration), [2007] F.C.J. No. 740 at para. 12.
• Children's Aid Society of Toronto v. S.A.C., [2005] O.J. No. 2154 at para. 139.
• Protection de la jeunesse- 072821, [2007] Q.J. No. 14184 at para. 64.

Article 7: Right to be registered under a name, acquire nationality and to know one's parents

M.D.R. v. Ontario (Deputy Registrar General) (2006), 81 O.R. (3d) 81:  This case involved an application by several lesbian parents to include both parents on each child's Statement of Live Birth. The applicants' children were conceived through artificial insemination. The Ontario Superior Court of Justice concluded that the birth registry provisions of the Vital Statistics Act, the text of which used the terms "mother" and "father", unjustifiably infringed the applicants' equality rights under section 15 of the Canadian Charter of Rights and Freedoms (the Charter). The declaration of invalidity was delayed for one year to allow the legislature to remedy the constitutional defects.

Article 8: Right of the child to preserve his/her identity

Ontario v. Marchand (2006), 81 O.R. (3d) 172:  This case involved an applicant who was adopted at five months of age and whose adoption was finalized when she was one year old. As an adult, she began her search for her birth parents. She discovered that her mother had passed away and her father's identity remained uncertain. However, the information gathered at the time she had become a Crown ward, the process by which she became eligible for adoption, contained the name of a man identified as her father. She was denied the name by the Registrar under the Child and Family Services Act. The applicant claimed this violated her section 7 (liberty, security)and section 15 (equality) rights under the Charter. The Ontario Superior Court of Justice dismissed the application. The applicant relied on the CRC, but the Court found that the terms of the CRC did not establish a breach of the applicant's right to liberty. The Court stated that: 1) the CRC did not establish an unfettered right of access to identifying personal information of third parties who are not the legal parents of the child; 2) the CRC did not supersede the express enactments of the legislature; 3) as the Supreme Court of Canada established in Canadian Foundation for Children, Youth and the Law (discussed infra), a child's best interest was not a principle of fundamental justice,; and 4) the applicant did not have the standing to assert the rights of a child. 

H.R.C. v. S.M.H., [2003] N.S.J. No. 393:  This case involved a Consent Order that was previously granted which declared H.C. as the natural father of S.M.'s child. Thus, H.C. was to make child support payments. H.C. fell behind on his payments. At first, he had conceded that he was the child's father; however, H.C. was now asking for a DNA test to be done as he argued it was in the child's best interests to know the identity of her father. The Nova Scotia Family Court ruled that H.C.'s doubts as to paternity were genuine and a DNA test was appropriate. However, the arrears for the missed payments were not to be forgiven and the support payments were not to be suspended while the testing was being done.

Article 9: Right not to be separated from parents

Martinez v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1695:  This case involved an application for a stay of a removal order pending a determination on an application by the applicant for landing in Canada on humanitarian and compassionate (H&C) grounds. The Federal Court found that it was a child's human right to know and be cared for by his or her parents. The Court noted that immigration law must be applied consistently with the CRC. Nevertheless, nothing in the CRC prohibited Canada from separating children from their parents in situations where the parents had no legal status in Canada. Yet, in this case, until the H&C application was determined, the Court found that the balance of convenience favoured the Applicant and it stayed the removal order.

Worthington v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1879:  This case involved an application by Duane Worthington and his adoptive mother for judicial review of a decision of the Minister denying Duane's application for citizenship, which would have allowed him to serve the remainder of his 35-year sentence in British Columbia instead of an American prison. Duane was adopted in 1962 by two Canadian citizens residing in the United States. Neither of his adoptive parents ever acquired American citizenship. Although Duane's parents intended to relocate to British Columbia for several years, they had not as Duane was serving a 35-year sentence in Wisconsin. Mr. Worthington passed away, and Mrs. Worthington wished to move to British Columbia. In order for Duane to be eligible for a prison transfer to Canada where his mother wanted to move, he would have to be a Canadian citizen. However, in 2003, his application for Canadian citizenship was refused. The applicant requested an order of mandamus forcing the Minister to grant him citizenship as he claimed the Citizenship Act discriminated between adopted and natural children of Canadians. The Federal Court refused the mandamus but quashed the decision of the Minister. The matter was sent back to the Minister for redetermination. The appeal to the Federal Court of Appeal was dismissed ([2006] F.C.J. No. 112). 

Article 10: Right to reunification of parent and child

De Guzman v. Canada (Minister of Citizenship and Immigration), [2006] 3 F.C.R. 655:  In this case, the appellant argued that section 117(9)(d) of the Immigration and Refugee Protection Regulations infringed her rights under section 7 of the Charter by preventing the reunification of parent and child. This provision limited sponsorship rights in particular circumstances to deter visa applicants from misrepresenting certain facts or withholding information about their dependants, including their children. The Federal Court of Appeal found that this provision did not violate the Charter when considered with the other provisions of the Immigration and Refugee Protection Act. The appellant did not provide evidence of any special hardship or psychological stress that she was suffering as a result of the separation. The appellant was not a refugee or person in need of protection so she could reunite with her children in the Philippines should she choose to do so. The provision did not make the Act non-compliant with any international human rights instrument to which Canada was a signatory.

Articles 12 and 3(1): Right of the child to express views on matters affecting him/herself and the best interests of the child

Manitoba (Director of Child and Family Services) v. A.C. (2007), 212 Man.R. (2d) 163:  This case involved an appeal by A.C., a 14 year-old girl, and her parents from a decision allowing the Director of Child and Family Services' application for a treatment order. A.C. was a Jehovah's Witness and believed that one of God's commandments was that she not receive blood. After being contacted by the hospital, the Director decided that A.C. was a child in need of protection. The judge at first instance took into account the advance medical directive executed by A.C. earlier that year (containing her written instructions not to be given blood transfusions under any circumstances) but concluded that it was in her best interests to receive a transfusion as her life was in grave danger. The appeal was denied by the Manitoba Court of Appeal. Under the Child and Family Services Act, 16 is the presumptive age at which a minor is entitled to make decisions with regards to the medical treatment they receive. Although A.C.'s section 2(a) Charter rights (freedom of conscience and religion) were violated, the Court found this violation was justified under section 1 of the Charter. The process contemplated by the legislation was carefully crafted and ensured the flexibility to adapt itself to various situations. This legislation represented a fair balance between the rights of the individual and the State. The appeal to the Supreme Court of Canada was heard on May 20, 2008, and judgment is now reserved.

Manalang v. Canada (Minister of Public Safety and Emergency Preparedness), [2007] F.C.J. No. 1763:  This case involved an application for judicial review of a decision dismissing the applicant's appeal from exclusion orders for her and her children on the basis of inadmissibility to Canada based on misrepresentation. The applicant argued, amongst other things, that the Immigration Appeal Division did not properly consider her children's best interests and did not take the views of her children into consideration. The applicant argued that these oversights were in breach of Canada's obligations under the CRC. The Federal Court dismissed the application. The minors were represented and it was the representative's role to disclose their interests and views. Moreover, the best interests of the child are but one factor to take into consideration. 

N.S. (Litigation Guardian of) v. Yukon (Director of Family and Children's Services), [2004] Y.J. No. 40:  This case involved an appeal by the Child Advocate on behalf of N.S. from a Permanent Care and Custody Order. N.S. was a 16-year-old in the custody of the Director of Family and Children's Services as she had been diagnosed with mental disorders and suffered from substance abuse problems. No one objected to N.S. remaining in the care of the Director. However, the issue was that a full oral hearing had not been conducted and N.S. had not been given the opportunity to express her point of view. The Yukon Supreme Court ruled that the case should be returned for a full hearing to ensure N.S.' best interests would be considered. 

Nova Scotia (Minister of Community Services) v. S.C.P., [2006] N.S.J. No. 567:  The issue in these child protection proceedings was whether the child in question (12 years old) should be given the opportunity to consult and retain counsel independently. The Nova Scotia Family Court recalled that under the Children and Family Services Act, a 12-year-old is a party to the proceedings, is entitled to be directly represented or represented by a guardian, and is entitled to receive formal notice of the proceedings. If a child of 12 years of age or older is incapable of instructing counsel, a guardian ad litem may be appointed for her or for him. The CRC also provides that children have the right to participate in judicial and administrative proceedings which affect them. In this case, the Court was not prepared to sacrifice the child's right to representation (even though it was late in the proceedings) for the sake of convenience or expediency, as the potential consequences for the child were substantial. The Court directed the Minister of Community Services to immediately assist the child with arrangements to consult with independent legal counsel. If it were determined by independent counsel that the child was unable to instruct counsel and to receive advice, further directions could be sought upon notice by the Minister to this effect to the court and to the other parties.

Articles 18 and 27: Responsibilities of the parents in the development of the child and the right of the child to an adequate standard of living

R. v. R.D. (2005), 39 Alta. L.R. (4th) 187:  This case involved an accused minor, R.D., who was charged with breaking and entering as well as theft. R.D. had been kicked out of his house by his father and told he did not have permission to come into the house. R.D. was invited back inside the house several times in order to eat. However, on the day in question, R.D. entered his father's home through a window. The only items taken were groceries. The Alberta Provincial Court acquitted R.D. of the charge. As his father had not taken the steps to legally dissolve his obligations to provide R.D. with the necessities of life, R.D. had a legal right to be in the home and eat the food there. 

Article 19: Protection from violence and abuse

Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76:  In this case, the Supreme Court of Canada upheld the constitutionality of section 43 of the Criminal Code, which provides a defence for children's parents, caregivers and teachers who would otherwise be found guilty of a criminal offence for a minor use of reasonable force in correcting children's behaviour. The section was found to be consistent with Canada's obligations under the CRC. Taking into account, among other things, Canada's obligations under the Convention, the Court set out guidelines that allow only minor corrective force of a transitory and trifling nature to be used. The Supreme Court noted that without section 43, Canada's broad assault law would criminalize force falling short of what would be considered corporal punishment and would risk breaking up families in a way that would be detrimental to children.

R. v. J.W., [2007] B.C.J. No. 468:  This case involved an application by the Crown for A.W. to testify outside of the courtroom via closed circuit television in a case of alleged sexual assault against her father, J.W. J.W. argued that the judge had the initial discretion to decide which testimonial aid was used. The British Columbia Provincial Court noted that Canada's ratification of the CRC required it to protect children from all forms of sexual abuse. It was within the right of the prosecutor and/or A.W. to choose the testimonial aid that was best for her, subject to the judge's residual discretion based on the proper administration of justice.

V.S. v. Alberta (Director of Child Welfare) (2004), 38 Alta. L.R. (4th) 143:  This case involved an appeal by the parents of four children of a Permanent Guardianship Order. The family had a long history of dealings with Child Welfare. In July 2001, the Child Welfare Supervisor contacted Child Welfare due to concerns over the poor living conditions of the family home. The Children At Risk Response Team, comprised of a police officer and child welfare worker, entered the home shortly thereafter, and made an emergency apprehension of the children in light of the unsanitary environment in which they found the dwelling. Even though the search was found to be unlawful and in breach of section 8 of the Charter, the Alberta Court of Queen's Bench was sensitive to the vulnerability of children and held that their apprehension in the circumstances was not inappropriate. The protection of the children's lives and health took priority over the parents' rights to freedom from State intervention.

Articles 20 and 1: Right to alternative care when cannot be within own family and definition of "child"

J.S. v. Nunavut (Minister of Health and Social Services), [2006] Nu.J. No. 22:  This case involved an application for an order declaring a section of the Child and Family Services Act (Nunavut) as violating the right to equality in section 15 of the Charter. J.S. had been a ward of the State since the age of 7 and been in and out of youth detention centers. Upon being released from a detention center at the age of 17, the Director of Child and Family Services could not find a place for him to live as no services were available. The Nunavut Court of Justice held that the common thread of the preamble to the Youth Criminal Justice Act, the CRC, and Canada's Statement of Understanding regarding a provision of the CRC, was that youth up to the age of 18 should receive special attention, guidance and support, basic rights and freedoms, respect for language and culture, and a base standard of living. As J.S. was between 16 and 18 years of age, his language and cultural needs were important considerations. Even though the applicant had turned 18 at the time of the hearing and was therefore no longer eligible for services under this Act, the Nunavut Court of Justice decided to exercise its remedial discretion and gave reasons for a judgement. It found that the Act drew a distinction between youths under 16 and those between 16 and 18 years of age. The services available to the youths between the ages of 16 and 18 were significantly reduced compared to those provided for other age groups. Thus, this legislation was discriminatory and should be remedied. The Court suggested that the Government of Nunavut consider the appropriate legislative provisions for the care of young people between the ages of 16 and 18. If this was not done within the year, the Court offered to consider reading into the legislation the appropriate provisions.

Article 21: Obligation of states in adoptions

In the Matter of X, [2006] R.J.Q. 2513:  This case involved a motion brought by the Director of Youth Protection to declare the security and development of child X in danger, because of the adoptive mother's lifestyle and alcohol abuse. The child, of Inuit ancestry, was adopted through a private agreement (also called a traditional adoption in Inuit culture and many other Aboriginal communities). The Court of Québec (Youth Division) noted that the Director of Youth Protection does not intervene in this process of traditional adoption, contrary to international and national standards. The Director therefore does not determine whether the rights of the child were respected and whether the traditional adoption was in his or her best interest. The Court ordered the foster care of child X in a foster family for a period of 24 months. On the issue of traditional adoptions, the Court stated that the best interests of the child remained the paramount consideration no matter the process of adoption. Thus, the Court recommended that these private agreements be submitted to the Director of Youth Protection prior to their enforcement.

Article 23: Rights of a child with a mental or physical disability

R. v. D.B. (2004), 252 Sask.R. 1:  The issue in this case was the appropriate disposition under the Criminal Code for D.B., who was a young person with partial Fetal Alcohol Syndrome who had been designated unfit to stand trial by reason of mental disorder. This case was somewhat unusual as D.B. would never become fit to stand trial. D.B. was alleged to have touched a neighbour's daughter (4 years old) and was charged with sexual assault. The CRC provides for the rights and for special dispositions for children with disabilities, as appropriate to their well-being and proportionate to their particular circumstances and offences. These normative principles are relevant for the interpretation of sections 7 and 15(1) of the Charter,which the Saskatchewan Provincial Court found were breached in this case. The Crown did not present any evidence or argument on justification under section 1 of the Charter, so the Court considered remedies.D.B.'s foster family was found to be able to meet his needs and he did not pose a public risk. D.B. received an absolute discharge.

Article 30: Right of minority or indigenous children to enjoy their culture, religion and language

R.T. (Re) (2004), 259 Sask. R. 122:  This case involved a hearing for Aboriginal children under protective services. The Department of Community Resources and Employment had adopted a policy whereby Aboriginal children would only be placed for adoption with the consent of the band. The band had refused consent to the adoption of the children by non-Aboriginal families. The children had been residing with foster families for a long time. The counsel for the children argued that this policy violated sections 7 and 15(1) of the Charter and was therefore invalid. The Saskatchewan Court of Queen's Bench (Family Law Division) held that some of the children should be placed for adoption because it was in their best interests. The point of the policy was to give Aboriginal communities a "voice" in the placement of their children, but "adoption" and "the ability of children to maintain their culture" were not mutually exclusive concepts. The children would not lose their Indian status upon being adopted. Moreover, there was potential for serious harm if they continued to remain in the foster system.

Article 34: Protection from sexual abuse and exploitation

R. v. Innes, [2007] A.J. No. 964:  This case involved the sentencing of the accused after he pleaded guilty to two counts of luring a child, two counts of extortion and one count of counseling the making of child pornography. The Alberta Provincial Court considered various mitigating and aggravating factors and sentenced the accused to six years minus two weeks of imprisonment. The offences were planned and deliberate. Furthermore, the offences took place while the complainants were in their homes (via the internet) which should have been a secure environment. In its judgment, the Court noted that Parliament considered protecting children from sexual exploitation and sexual abuse an important objective when it ratified the CRC. The Alberta Court of Appeal dismissed the appeal and confirmed the sentence ([2008] A.J. No. 346).

Article 37(b): Arrest, detention and imprisonment

R. v. C.D.; R. v. C.D.K., [2005] 3 S.C.R. 668:  At issue in this case was the proper definition of the term "violent offence" under the Youth Criminal Justice Act. C.D. and C.D.K., two youths, were eligible for custodial sentences as they had been found guilty of violent offences by Alberta courts. The Supreme Court of Canada stated that "violent offence" should be given a narrow interpretation as this classification was determinative of whether one should receive a custodial sentence. In this case, the custodial sentences were quashed and both matters remitted to the youth courts so that appropriate sentences could be determined. 

R. v. B.W.P.; R. v. B.V.N., [2006] 1 S.C.R. 941:  This case involved two young persons who had committed violent crimes and had pleaded guilty, to manslaughter in one case and aggravated assault causing bodily harm in the other case. These two appeals raised the same question of statutory interpretation: whether general deterrence was a factor to be considered in sentencing a young person under the Youth Criminal Justice Act (YCJA). The Supreme Court of Canada held that under the YCJA, general and specific deterrence were not factors in determining sentences. The Court recalled that in general, the provisions of the Criminal Code for sentencing do not apply to young offenders. Accordingly, nothing prevented a court from using its discretion and imposing custody and supervision orders on a young person that were different from those for the same offences under the Criminal Code. 

R. v. J.R.L. (2007), 254 N.S.R. (2d) 344:  This case involved an appeal by the Crown from a sentence for a 17 year-old who had pleaded guilty to a series of offences related to a violent home invasion. After considering the evidence, the trial judge had concluded that despite the horrendous nature of the crime, the young offender had a high probability of being rehabilitated. The trial judge sentenced the young offender to six months of deferred custody and 18 months of probation. While this sentence was viewed as extraordinary and even exceptional, the Nova Scotia Court of Appeal decided it should stand, as the trial judge applied the appropriate principles of sentencing according to the Youth Criminal Justice Act. 

R.v. J.N.N., [2005] B.C.J. No. 1220:  This case involved an application by the accused, J.N.N. (a young person), for a stay of proceedings due to delay. The applicant alleged that this delay caused her prejudice and violated her section 7 and 11(b) Charter rights. However, the applicant did not indicate that she wanted a speedier trial in her nine court appearances. It was inferred from the applicant's inaction that she waived the post-charge delays. The British Columbia Provincial Court found there was insufficient evidence to warrant a stay of proceedings.The applicant did not establish that she suffered prejudice as a result of the delay. The application was dismissed.

R. v. X., [2006] J.Q. No. 1721:  This case involved the sentencing of a young person convicted of aggravated assault (stabbing) and of possession of a weapon. The defence had suggested six months of deferred custody and supervision based on the pre-sentence report. The Québec Court (Youth Division) sentenced X to 12 months of secure custody, six months of supervision in the community, and six months of probation. This sentence was justified because of the serious nature of the offence, the high degree of violence and lack of empathy shown by the accused. Thus, a secured placement was favoured for the protection of the youth and also of society.

Article 40(1): Accused to be treated with dignity and worth

R. v. R.C., [2005] 3 S.C.R. 99:  This case involved an appeal by a 13 year-old (R.W.C.) from imposition of a DNA order. R.W.C. assaulted his mother and pleaded guilty. Even though courts are authorized under the Criminal Code to take DNA samples for certain offences, the trial court applied one of the exceptions noted in the Code to decline to issue the DNA order against R.W.C. This ruling was then overturned by the Nova Scotia Court of Appeal. The Supreme Court of Canada found that R.W.C.'s appeal should be allowed, as the trial court's ruling was reasonable in these particular circumstances. The trial judge properly took into consideration the underlying goals of the youth criminal justice system to extend enhanced procedural protections to young persons, and to minimize interference with their personal freedom and privacy (in keeping with Canada's international obligations under the CRC). 

Articles 40(1)(i) and (vii): Right to be presumed innocent and right to privacy

R. v. D.B., [2008] 2 S.C.R. 3:  This case involved D.B., a 17-year-old, who pleaded guilty to manslaughter. This offence was a presumptive one under the Youth Criminal Justice Act,thereby placing a reverse onus on a youth to demonstrate why he or she did not deserve an adult sentence and to show why an ongoing publication ban was appropriate. The majority of the Supreme Court of Canada found that the reverse onus provisions unjustifiably violated section 7 of the Charter. The presumption of an adult sentence infringed the principle of fundamental justice protected by section 7 that young people are entitled to a presumption of diminished moral culpability.

Article 40(2)(b)(ii): Right to legal assistance

R. v. S.S., [2007] O.J. No. 2552:  In this case, the Crown was appealing a sentence from S.S.'s acquittal on charges of robbery and use of a disguise in the commission of the offence. S.S. was a young person, and the primary issue on appeal was the admissibility of his statement to the police upon arrest. The Youth Criminal Justice Act (YCJA) required the police to tell S.S. that any statement had to be taken in the presence of a lawyer or adult with whom S.S. had consulted, unless S.S. desired otherwise. Although the police had informed S.S. that he had the "right" to have a lawyer, or other specified adult with whom he consulted, present when he gave his statement, the trial judge found that this information was not in accordance with the requirements put on the police by the YCJA. The Ontario Court of Appeal confirmed the trial judge's reasoning and dismissed the appeal. There was an important distinction drawn between a "right" of a young person on the one hand and a "requirement" put on the police on the other. Protecting young people because of their lack of maturity and in light of their susceptibility to yield to authority were valid purposes recognized by the YCJA.

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