Poste - Canadian Coalition for the Rights of Children

C A N A D I A N C O A L I T I O N F O R T H E R I G H T S O F C H I L D R E N
wearing of a student uniform does not result in any
violation of freedom of expression for “to do so would
trivialize the Charter.” 49
In Peel Board of Education v. Ontario (Human Rights
Commission) (1991), 50 it was decided that a Sikh student
had the right to wear his kirpan (a ceremonial dagger
carried by religious Sikhs) to school. However, certain
safety restrictions, such as the size of the kirpan, had to
be followed. This ruling was based on the principles of
freedom of religion, not expression.
In Zylberberg v. Sudbury Board of Education(1988), 51
the majority decision of the Ontario Court of Appeal
declared regulations forcing recitation of the Lord’s
Prayer and the reading of the scriptures from the
Christian Bible did violate the Charter freedoms.
Exempting a student who did not wish to participate was
not sufficient for it would compel “students and parents
to make a religious statement.”
Two years later, the same court decided, in Canadian
Civil Liberties Association v. Ontario, 52 to strike down
regulations allowing indoctrination of pupils into the
Christian faith. It was held that section 2(a) of the
Charter prohibits religious indoctrination, but that it does
not prohibit education about religion.
In 1986, a 12-year-old Ontario girl was denied the right
to play hockey on a boy’s team, an action which was
upheld by the Ontario Human Rights Commission by
reason of section 19(2) of the Human Rights Code, which
allows athletic organizations to restrict their members to
persons of the same sex. In Re Blainey and Ontario
Hockey Association et al, 53 the Ontario Court of Appeal
found that section 19(2) of the Ontario Human Rights
Code was inconsistent with section 15(1) of the Charter
because it permitted discrimination in an athletic activity
on the basis of sex but prohibited discrimination on other
grounds such as race, colour and ethnic origin. However,
the Court did not direct the hockey association to extend
its membership because the hockey association was not
exercising a governmental function and the Charter does
not extend to private activity.
In Chamberlain et al versus Surrey School Board, 54 the
Surrey School Board said that resources by gay and
lesbian groups were not approved for use in the school
district, including three books depicting children with
same-sex parents for use in kindergarten and Grade 1.
The British Columbia Supreme Court concluded that the
Surrey board’s books resolution is contrary to the School
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Act and beyond its authority. The Court said that the
second resolution was “significantly influenced by
religious consideration” and that this was contrary to the
School Act provisions requiring schools to be conducted
on strictly secular principles.
Human Rights Commissions
Each province or territory has a human rights commission
or similar body that has jurisdiction over its respective
human rights legislation. Most commission activities
revolve around the investigation and conciliation of
complaints about discriminatory practices within the public
and private sectors. 55 Although age is a prohibited ground
in certain provinces and territories, only people between 18
and 65 years of age are protected from age discrimination.
In British Columbia and Saskatchewan, however, the
human rights commissions have petitioned the provincial
governments to change the legislation to offer protection
against age discrimination to those under 19 years of age.
The British Columbia Human Rights Commission’s
mandate does not include services to children. The Nova
Scotia Human Rights Commission does not accept
complaints from children under the age of 18 without
consent from a parent or guardian and it estimates that
fewer than 12 have been received since 1991. 56 While other
commissions allow children to file their own complaints,
most report that children’s complaints are usually filed on
their behalf by their parents. Typical complaints include
harassment in a school setting; refusal to permit a child to
participate in certain sports activities; and stores that try to
limit the number of children allowed inside at one time.
Ombudsmen
Generally, an ombudsman is an independent person
appointed to receive, investigate and resolve complaints
about the administration of public services. She or he is an
impartial investigator with the power to discover the facts
of a case and to determine an appropriate resolution. 57 The
ombudsman does not advise the minister and does not
represent a department or a complainant at the outset of an
investigation. 58
All provinces and territories, except Newfoundland, Prince
Edward Island and the Northwest Territories, have an
ombudsman. There is no national ombudsman for federal
matters.
The Nova Scotia Ombudsman’s Office reports that
children in care have brought forward concerns about their
fundamental freedoms. The concerns were investigated and