Today's decision in R. v. Katigbak, 2010 ONCA 411deals with child pornography and the existing exceptions to its prohibition. What is most interesting is the repeated comment by the Court that children's entitlement to be free of abuse is a Charter based entitlement.
This could be very significant as it seems to apply Charter rights to non-State actors and grant entitlements beyond claims against the State.
The Court writes:
[34] Although the trial judge underlined "[t]he need to preserve societal values such as the free exchange of ideas and the nurturing of artistic or creative thought" (a pressing s. 2(b) value under the Charter), she paid scant attention to society's interest in ensuring the protection of children from sexual exploitation and abuse (an equally pressing s. 7 value guaranteeing life, liberty and security of the person), as I see it.
James Morton
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3 comments:
What does the term "non state actor" mean, in other words how is this significant.
Not the government. So Charter rights -- right to freedom of religion, for example, are usually seen as limiting the government but no one else. Here, the entitlement to security of the person is seem as applying against criminals who collect child porn -- not a significant point here but applied to other situations it could have major effects.
So, are you saying that the Court is "reading in" "non-state actors" into s.32 of the Charter and Dolphin Delivery and McKinney are on their way out?
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