© 2000  Karen Selick
The Indignity of It All
An edited version of this article first appeared in the September, 2000 issue of Canadian Lawyer.  If you wish to reproduce this article, click here for copyright info.



 


The Indignity of It All


What an undignified bunch of hayseeds we Canadians must have been for the first 109 years of our countryís existence.  In all that time, the Supreme Court of Canada never saw fit to edify us in its judgments on the meaning of "human dignity," not even once.

The court finally broached the subject in 1977, then let it fall dormant again for another eight years.

Recently, theyíve begun to rectify this scandalous omission--with a vengeance.  No fewer than 67 cases have referred to human dignity since 1985.  There have been some truly banner years:  eight cases in 1999; twelve in 1995.

Despite all this judicial elucidation, I would argue that the court has diminished, rather than enhanced, our understanding of the subject.  

Two of the longest discussions occur in cases challenging the Canada Pension Plan Act.  In Law v. Canada [1999] 1 S.C.R. 497, a 30-year-old widow was denied CPP survivorís benefits because she hadnít reached age 45.  In Granovsky v. Canada [2000] S.C.J. No. 29, a disabled man was denied benefits because he hadnít paid into CPP long enough.   

In each case, the court held that the plaintiff had been treated differently from other people on grounds that were prohibited under subsection 15(1) of the Charter of Rights and Freedoms.  However, in each case, the court held that this did not constitute "discrimination" because the difference didnít violate the plaintiffís human dignity.  The statute wasnít written in a way that would make the plaintiff feel "less worthy of recognition or value".

What an utterly subjective test!  Iíll bet Mr. Granovsky did feel that the law was treating him as less worthy of recognition.  Iíll bet his lawyers and the intervener (the Council of Canadians with Disabilities) thought so too.  Otherwise they surely wouldnít have pursued the case all the way to the Supreme Court, particularly after Nancy Lawís rejection seven months earlier for insufficient feelings of unworthiness.  

What makes seven judgesí opinion on this point more reliable than a greater number of laymenís opinions?  Surely it couldnít be that judgesí viewpoints are more worthy of recognition than other peopleís?

More troubling, however, is the notion apparently held by both the court and the plaintiff that being granted the status of dependency and being permitted to sup at the public trough would somehow enhance or restore oneís dignity if it had been found to have been violated.  

This idea appears with a slight twist in M v. H [1999] 2  S.C.R.3.  A lesbian was allowed to obtain support from her former female partner because the law excluding her from the definition of "spouse" was held to violate her human dignity.  Presumably, the status of being someone elseís financial ward and receiving someone elseís money would restore her dignity. 

These are pretty funny notions of dignity, if you ask me.  Iím from the old school, having developed my ideas on this subject well before 1985.  In my view, dignity embraces traits such as independence, self-reliance, honesty and self-discipline.  It is a quality that comes from within, not something that can be bestowed from without.  It certainly demands that you respect the rights of others.

Itís hard to conceive of a burglar or mugger being dignified as he robs his victims at gunpoint.  Yet lesbian M, never having obtained Hís consent to enlist in a legal regime requiring mutual support, used the courts as a loaded gun to coerce money from her.  Thatís dignified?  And what about Hís dignityódoesnít it matter?

Similarly, the very existence of the Canada Pension Plan is an assault on the dignity of Canadians.  Its compulsory nature implies that we are either too stupid or too irresponsible to save for our own retirement.  Like children or idiots, we have to be forced into the program, supposedly for our own good.   But then it turns out to be a gigantic Ponzi scheme, actuarially unsound, that transfers money from the younger generation to the older.  Yup, receiving benefits from CPP sure is dignified.

Perhaps least dignified of all are the courtís attempts to refashion the meaning of "discrimination" beyond all recognition, and to throw a monkey wrench into the workings of the Charter of Rights and Freedoms.  

The scheme of the Charter was fairly straightforward, once upon a time.  Laws that treat people unequally on the basis of irrelevant personal characteristics are unconstitutional under subsection 15(1) unless they are an affirmative action program allowed by subsection 15(2), or unless the court decides that they can be "demonstrably justified in a free and democratic society" under section 1.  

The courtís assertion that legislative distinctions donít constitute "discrimination" unless they violate human dignity isnít supported by any of the several dictionaries I checked.  Nor, indeed, does the court cite any authority for this proposition, other than itself.  It seems to have made this up out of thin air.   

Why?  Who knows?  Maybe it wants to avoid making section 1 decisions to dodge the accusation that it is governing rather than merely interpreting.  However, the resulting obfuscation is an insult to anyone who ever dreamed the law could be objective, predictable and comprehensible to those who must obey it.
 


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Jan. 6, 2001