3 issues that pit Canadian parents against the state

How much say should the state have in how parents raise their children?

The debate has always existed in one form or another, and some of the most contentious issues have made their way to Canadian courts, resulting in numerous high profile rulings.

• Judge rejects application to take aboriginal girl from family for chemo
• Girl's forced blood transfusion didn't violate rights: top court

On Friday an Ontario judge decided that a Six Nations mother was within her aboriginal rights to refuse chemotherapy treatment for her 11-year-old daughter, who instead was treated at a naturopathic facility in Florida.

The case is the latest example of courts trying to determine how far the state can insert itself between parents or legal guardians and the children in their care.

Here are some other instances when the debate has come to a head in the courts.

Spanking: Tough love or assault?

In 2004, after more than five years of legal battling, the Supreme Court of Canada upheld one of the country’s most controversial laws in a 6-3 majority decision.

Known informally as ‘the spanking law,’ Section 43 of the Criminal Code “expressly offers parents and teachers a defence when they use reasonable force to discipline a child.”

• Spanking law has to go, doctors' editorial argues

First drafted in 1892, the law had previously withstood a series of parliamentary and legal challenges over several decades and a private members bill that would have seen the law overturned was tabled as recently as 2007 in the Senate. 

But supporters of Section 43 argue that its repeal would make parents liable to criminal charges each time they spanked their kids. 

The debate intensified in 1998, when the Canadian Foundation for Children, Youth and the Law brought the case forward in Ontario. The group’s lawyers argued that Section 43 sanctions multiple violations of a child’s Charter rights, particularly those that ensure the right to security and equality and protection from cruel and unusual punishment. The group lost.

The SCC ultimately upheld the section in 2004, but in her decision, Chief Justice Beverley McLachlin outlined “reasonable limits” of the law, writing that it only applies to children between the ages of 2 and 12, that parents cannot use objects or hit a child’s head, and that the action must constitute “minor corrective force of a transitory and trifling nature.”

The UN Committee on the Rights of the Child has repeatedly called for Canada to revisit the decision, pointing out that more than 40 countries worldwide have made corporal punishment at home and in schools illegal.

Medical intervention

Friday's ruling in the case of the cancer-stricken aboriginal girl, and the similar case of Makayla Sault — another 11-year-old First Nations girl who has refused chemotherapy in favour of alternative treatments — have pushed the question of the forced medical treatment of minors to the fore in recent months.

But nowhere has involuntary medical treatment for children been more controversial than among Canada’s Jehovah’s Witness communities, in which adherents to the faith are prohibited from undergoing select emergency procedures including blood transfusions.

The SCC weighed in on the issue in 2009, after a teenage Jehovah’s Witness from Manitoba was forced to undergo a court-ordered blood transfusion due to internal bleeding caused by Crohn’s disease three years earlier.

Despite a refusal from the then 14-year-old girl and her parents and a psychiatric evaluation that deemed the teen capable of making medical decisions, Manitoba’s Child and Family Services said that provincial law required the court to take over in life-threatening situations.

In the 6-1 majority decision, the SCC agreed that the order was constitutional and that Manitoba acted in the teen’s “best interests.” The ruling added that “mature minors” should be allowed the opportunity to prove they are able to make medical decisions, but that courts have authority to overrule them in certain cases.

Sex, religion in the classroom

Disagreements between parents and school boards across the country over religious and sexual education seem to constantly re-emerge in various permutations. Often the debate can be boiled down to a simple question: who ultimately controls what young people are taught in schools?

• Supreme Court to hear ethics course appeal by Quebec high school
• Supreme Court says B.C. school board wrong to ban same-sex books

The answer is rarely as simple to divine, but Canadian courts have had a say in the matter.

In 2002, the Supreme Court ruled on Chamberlain v. Surrey School District No. 36 – a case that pitted a B.C. first-grade teacher who wanted to include three books that promoted tolerance of same-sex couples against a school board who argued “the books would engender controversy in light of some parents’ religious objections to the morality of same‑sex relationships.”

In the 7-2 decision, the SCC said the school board violated B.C. provincial law, which dictates that the public school curriculum must be secular in nature.

But in Quebec, one private school recently challenged an attempt to apply a province-wide religious curriculum.

In March of this year, the SCC heard arguments from lawyers representing Loyola High School, a private Catholic boys’ secondary institution in Montreal.

The school, along with a supportive group of parents, claims the provincially-mandated ethics and religious culture curriculum — which the province says “will make it possible to offer the same education to all Quebec students while respecting the freedom of conscience and religion of parents, students and teachers” — forces its teachers to ignore the traditions of their faith.

Loyola won its case before the Quebec Superior Court in 2010, but that ruling was overturned by the Quebec Court of Appeals two years later. The SCC has yet to render a decision.

Meanwhile, an Ontario court is currently hearing a case from Steve Tourloukis, a father of two young students who wants the Hamilton-Wentworth District School Board to provide advanced warning of lessons that may clash with his religious and moral beliefs.

Tourloukis told The Hamilton Spectator in 2012 that the “heads-up” would ensure “that I have the right to direct the education of my children.”

It is not clear when a decision is expected in the case.