It has been more than a decade since Justice Arbour’s dissenting judgment in Gosselin, the first and only Supreme Court of Canada judgment recognizing positive rights under section 7. The jurisprudence that has developed in the intervening years presents some challenges to pursuing such a claim today. Yet the author offers the view that because of the special vulnerability of children, their capacity for development and the state’s treatment of children in other contexts, recognition of positive rights for children is consistent with Canada’s legal/political traditions, current laws and jurisprudence. Childhood, the refore, may well be the “special circumstance” necessary to push positive section 7 rights forward under the Charter. In light of the growing disparities in wealth in Canada, and the link between poverty and the ability to meet a child’s basic needs, such an outcome is urgently needed in the interests of justice to ensure that all children eventually have an equal opportunity to be involved in society’s most important institutions, which ultimately control distribution of wealth, goods and opportunity.
Latimer, Alison M..
"A Positive Future for Section 7?: Children and Charter Change."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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