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“Human Dignity”, Human Rights and the End of Life: the North Wind Blowing from Canada

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“Human Dignity”, Human Rights and the End of Life: the North Wind Blowing from Canada “Human Dignity”, Human Rights and the End of Life: The North Wind Blowing from Canada David M. Brown1 Suffering and Hope, University of St. Thomas, Houston November 10-13, 2005 “On the views of human dignity held by a society, whether consciously or unconsciously, depend many other matters of basic importance.”2 I. The Issue In recent years, Canadian appellate courts have styled themselves as groundbreakers in the areas of human and constitutional rights and they tout the interest shown in their jurisprudence by Australian and South African courts. While American constitutional law traditionally has remained impervious to developments north of the border, the rapidity and eagerness with which the Massachusetts Supreme Court in the Goodridge3 decision embraced the equality reasoning of Canadian provincial appellate courts to create a right to same-sex marriage should cause American jurists and practitioners to pause and reflect on some of the conceptual developments currently underway in Canadian constitutional law. This paper describes the increasing use by Canadian courts and legal academics of the concept of “human dignity” in cases interpreting constitutional rights. In particular, the paper will look at the potential impact of the Canadian judicial concept of human dignity on end of life issues. Like the United States, Canada enjoys a Constitution that contains a Bill of Rights, known as the Canadian Charter of Rights and Freedoms (the “Charter”). Enacted only in 1982, the Charter guarantees individuals a fairly standard package of fundamental freedoms from undue interference by governmental action, including guarantees of the equal protection and benefit of the law and the right not to be deprived of liberty or security of the person except in accordance with the principles of fundamental justice.4 Unlike the American Bill of Right, the Canadian Charter expressly provides that any of 1 Partner, Stikeman Elliott LLP (Toronto). 2 Richard C. Dales, “A Medieval View of Human Dignity” (1977) 38 Journal of the History of Ideas 557 3 Goodridge v. Department of Public Health, 798 N.E. 2d 941 (Mass., 2003) 4 Section 7 of the Charter provides: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” Section 15 provides: “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.” 2 the freedoms it guarantees are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic country.”5 II. Human Dignity: The Prevailing Canadian Judicial Conception The Oxford English Dictionary defines dignity as the quality of being worthy or honourable. 6 Although the Canadian Constitution contains no explicit reference to it, from the earliest days of Charter interpretation the Canadian Supreme Court (the “Court”) has repeatedly invoked the concept of human dignity as one fundamental to any understanding of the rights guaranteed by the Charter. The Court has commented that “the values and principles essential to a free and democratic society” include “respect for the inherent dignity of the human person, commitment to social justice and equality”,7 and that “a democratic society capable of giving effect to the Charter’s guarantees is one which strives toward creating a community committed to equality, liberty and human dignity.”8 While some judges have described human dignity as a “notoriously elusive concept”9, in recent years the Court has given “human dignity” a place of central importance. Individuals “will truly live in dignity”, according to the Court, when “equality is a reality” and “fraternity and harmony” are achieved.10 In its seminal 1999 decision in the Law11 case, the Court cast human dignity as the key concept for understanding equality. The purpose of the equality guarantee, in the Court’s view, is “to prevent the violation of essential human dignity and freedom from the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration”.12 Remedying discrimination ensures human dignity.13 Eloquent and laudable language, but what constitutes the content and basis for human dignity? In Law the Court linked human dignity with “personal autonomy and self- determination”14: “Human dignity is harmed by unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities, or merits. It is enhanced by laws which are sensitive to the needs, capacities, and merits of different individuals, taking into account the context underlying their differences. 5 Canadian Charter of Rights and Freedoms, s. 1 6 The Compact Edition of the Oxford English Dictionary (356). Leon Kass points out that the central notion of dignity is that of worthiness, elevation, honor, nobility or height: “Death with Dignity and the Sanctity of Life” in Michael M. Uhlmann, ed., Last Rights? Assisted Suicide and Euthansia Debated (Grand Rapids, Mich: Eerdmans, 1998), 213 7 R. v. Oakes, [1986] 1 S.C.R. 103, at 136. 8 R. v. Zundel, [1992] 2 S.C.R. 731, at 806. 9 Egan v. Canada, [1995] 2 S.C.R. 513, per L’Heureux-Dube, J. at para. 40. 10 Vriend v. Alberta, [1998] 1 S.C.R. 493, at paras. 67 and 68 11 Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497. 12 Ibid., para. 51 13 Ibid., para. 52 14 Law, para. 53 3 Human dignity is harmed when individuals and groups are marginalized, ignored, or devalued, and is enhanced when laws recognize the full place of all individuals and groups within Canadian society. Human dignity within the meaning of the equality guarantee does not relate to the status or position of an individual in society per se, but rather concerns the manner in which a person legitimately feels when confronted with a particular law. Does the law treat him or her unfairly, taking into account all of the circumstances regarding the individuals affected and excluded by the law?”15 In cases since Law the Court has continued to regard “human dignity” as equivalent to individual autonomy and self-sufficiency. In 2002 the Court listed “self-determination, personal autonomy, self-respect, feelings of self-worth and empowerment” as “the stuff and substance of essential human dignity”.16 Violating human dignity also occurs when the law treats persons as “second-class citizens”, demeans them or treats “them as less capable for no good reason”.17 Although not all Canadian academic commentators are comfortable with the Court’s use of “human dignity” as a tool for interpreting constitutional rights, with one leading scholar dismissing the concept as vague and confusing,18 many champion the concept. Professor Lorraine Weinrib of the University of Toronto argues that rights protection crystallizes human dignity and stands as the foundation for state authority.19 Her colleague, Professor Denise Reaume, regards dignity as “the substantive concept informing equality rights”,20 and like the Court closely links human dignity with individual autonomy.21 That human rights depend in some sense on human dignity likely is an uncontroversial proposition. Jean Bethke Elshtain, for example, shares common ground with Weinrib 22 that the dignity of the person is a necessary prior assumption from which rights derive. 15 Ibid. 16 In Gosselin v. Quebec (Attorney General), [2002] 4 S.C.R. 429, per McLachlin, C.J. at para. 65. Elsewhere in her decision the Chief Justice wrote: “As a matter of common sense, if a law is designed to promote the claimant’s long- term autonomy and self-sufficiency, a reasonable person in the claimant’s position would be less likely to view it as an assault on her inherent dignity.” [para. 27] 17 See Auton (Guardian ad litem of) v. British Columbia (Attorney General), [2004] 3 S.C.R. 657, where at para. 63 McLachlin, C.J. stated: “If differential denial of a benefit provided by law on a ground enumerated in s. 15(1) or analogous thereto were established, it would still be necessary to examine whether the distinction was discriminatory in the sense of treating autistic children as second-class citizens and denying their fundamental human dignity. The failure to establish the basis for a claim for discrimination deprives us of the necessary foundation for this final inquiry.” In Egan v. Canada, [1995] 2 S.C.R. 513 L’Heureux-Dube, J. stated at para. 36: “Equality means that our society cannot tolerate legislative distinctions that treat certain people as second-class citizens, that demean them, that treat them as less capable for no good reason, or that otherwise offend fundamental human dignity”. 18 Professor Peter Hogg, “What is Equality? The Winding Course of Traditional Interpretation”, 4th Annual Charter Conference, Ontario Bar Association, September 30, 2005, at p. 14, at 338. 19 Lorraine Weinrib, “Human Dignity as a Rights-Protecting Principle” (2004), 17 National Journal of Constitutional Law 325, at 338. 20 Denise G. Reaume, “Discrimination and Dignity” (2003), 63 Louisiana Law Review 645 21 At 673 Reaume writes: “…respect for dignity includes respect for agency as a fundamental characteristic of humanity. References to the importance of self-determination or personal fulfillment recognize human beings as choosers and planners.” 22 Jean Bethke Elshtain, “The Dignity of the Human Person and the Idea of Human Rights: Four Inquiries” (1999- 2000), 14 Journal of Law and Religion 53. 4 The generality of the term ‘human dignity’ permits different commentators to agree upon the importance of the concept while harbouring significantly different views of its content.
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