Challenging statutory limitations on children's education rights: a re-examination of the Canadian Supreme Court Decision in Auton

Abstract

The 2004 Supreme Court of Canada decision in Auton concerns the right of autistic children to access services held by their parents to be essential to their children's ability to participate as members of a democratic society. It is argued that the child's right to have his or her basic developmental needs met is a constitutionally protected one. Having those developmental needs met engages both education and health rights. In Auton the parents had sought funding for the service at issue from the Ministry of Health, the Ministry of Children and Families (which dealt with mental health services and other particular support programs for the families of disabled children) as well as from the Ministry of Education. The case raises central questions regarding the very nature of education and the constitutionality of a discretionary power of government to set out statutory limitations upon fundamental human rights including education rights.

Keywords:

• autism
• Canadian Charter of Rights and Freedoms
• disability
• democracy
• education rights

Notes

1. Michelle Dawson was later granted intervener status as a representative of the Autism Society of Canada

2. The SCC in Auton decided the issues on the basis that the service for which the parents were requesting funding was a health-related service. However, the service (ABA therapy) might also be viewed as an educational intervention. At present, there is a class action lawsuit being pursued through the Ontario Courts under the Ontario Education Act (1990) in which a group of parents of autistic children claim a Charter equality breach due to the failure of the Ontario provincial government to fund ABA therapy for autistic children age six and older. Ontario funds such a program for children under age six. The parents claim that the lack of such funding for the older children and the refusal to allow ABA therapists in the classroom setting denies their children effective access to public education and constitutes age discrimination.

3. An exception here might be in the case of a controversial and not adequately validated treatment or service. This may have been the situation initially with ABA therapy but was not the case, according to the Courts, by the time of trial. This is not to suggest that this author accepts the trial Court view that the benefits of ABA therapy have been adequately established.

4. It is to be acknowledged that in the years leading up to the Auton case the BC government did fund a number of programs intended to assist autistic children and their families but unfortunately the government continued to fund a number of ‘increasingly discredited treatments’ (compare SCC, 2004, Auton, para. 59).