Human dignity's false start in the Supreme Court of Canada: equality rights and the Canadian Charter of Rights and Freedoms

Abstract

Human dignity functions largely as a rhetorical trope in contemporary human rights jurisprudence. In 1999 the Supreme Court of Canada began a jurisprudential experiment in which the concept of dignity was elevated to the status of a legal rule in interpreting the equality rights provision of the charter. Equality rights challenges to laws and programmes were to be judged largely on the basis of the feelings of affront experienced by claimants. This dignity test proved to be highly subjective and hence judicially unmanageable. While the politics of human dignity are effective precisely because rights claims are emotionally charged, a human dignity test based on feelings of affront has operated poorly in the Canadian constitutional context. Canada serves as a cautionary tale in the maturation and institutionalisation of the human rights movement.