The Right to Dignity Rex D. Glensy - Columbia Law School

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100 COLUMBIA HUMAN RIGHTS LAW REVIEW [43:65 value of dignity in interpreting rights such as the right to equality, the right not to be punished in a cruel, inhuman or degrading way, and the right to life. Human dignity is also a constitutional value that is of central significance in the limitations analysis . . . [and] is not only a value fundamental to our Constitution, it is a justiciable and enforceable right that must be respected and protected. In many cases . . . where the value of human dignity is offended, the primary constitutional breach occasioned may be of a more specific right such as the right to bodily integrity, the right to equality or the right not to be subjected to slavery, servitude or forced labour. 163 Accordingly, the right to dignity has been invoked to strike down the death penalty, 164 to declare unconstitutional antisodomy laws, 165 and to impose on the state a mandatory duty to provide a minimum standard of living for its citizens. 166 All combined, the right to dignity in South Africa underlies all other constitutional rights, and provides both redress against unlawful state action as well as a safety net to prevent the weakest members of society from falling through the cracks. Closer to home, the Canadian system also takes into account the right to dignity, especially when the Canadian Supreme Court is tasked with interpreting its Charter of Rights and Freedoms. However, the Canadian Constitution does not reference “dignity.” The use of the idea of human dignity in the Canadian system has been characterized as unfocused and inconsistent, at times having Kantian dimensions 167 and other times appearing to be mere verbiage, without 163. Dawood v. Minister of Home Affairs 2000 (3) SA 936 (CC) at 961–62 para. 35 (S. Afr.) (emphasis omitted). 164. See South Africa v. Makwanyane 1995 (3) SA 391 (CC) at 434 para. 95 (S. Afr.) (declaring that the death penalty “annihilates human dignity.”). 165. See Nat’l Coal. for Gay and Lesbian Equal. v. Minister of Justice 1999 (1) SA 6 (CC) at 29 para. 28 (S. Afr.) (stating that criminalizing sexual expression “is a palpable invasion of . . . dignity.”). 166. See South Africa v. Grootboom 2001 (1) SA 46 (CC) at 62 para. 23 (S. Afr.) (holding that “[t]here can be no doubt that human dignity, freedom and equality, the foundational values of our society, are denied those who have no food, clothing or shelter.”). 167. See R. v. Morgentaler, [1988] 1 S.C.R. 30, 177 (Can.) (stating that “the ability of each citizen to make free and informed decisions is the absolute prerequisite for the legitimacy, acceptability, and efficacy of our system of self governance”).
2011] The Right to Dignity 101 much, if any, legal substance. 168 Indeed, the invocation of dignity rights has permeated Canadian constitutional jurisprudence and several Charter provisions, such as the protection of liberty, 169 the definition of fundamental freedoms, 170 the prohibition against cruel and unusual punishment, 171 and the fostering of equality. 172 Moreover, the Canadian Supreme Court has emphatically noted that “[t]he idea of human dignity” is reflected in every single Charter provision and thus is to be regarded as “the basic theory underlying the Charter,” 173 even though it has admitted that, as a legal test, “human dignity is an abstract and subjective notion that . . . [can be] confusing and difficult to apply.” 174 When combining these two statements by the Canadian Supreme Court, what emerges is the notion that dignity provides an underlying ground for other enumerated rights in the Canadian legal system—a sort of background norm or negative right—rather than a per se legal right standing on its own. As noted below, this reading of the right to 168. See Fyfe, supra note 5, at 8, 9, 12 (characterizing the use of dignity as “an awkward medley of quotes,” and “a hodge podge of . . . nebulous terminology.”). 169. See Reference Re Section 94(2) of the Motor Vehicles Act (B.C.), [1985] 2 S.C.R. 486, 513 (Can.) (equating dignity with the moral imperative that innocent people should not be punished—a notion “founded upon a belief in the dignity and worth of the human person . . . .”). 170. See R. v. Big M Drug Mart, [1985] 1 S.C.R. 295, 346 (Can.) (noting that fundamental freedoms are united by the centrality to individual conscience and that the relationship between the respect for that conscience “and the valuation of human dignity that motivates such unremitting protection” was easy to see); Reference Re Pub. Serv. Emp. Relations Act (Alta.), [1987] 1 S.C.R. 313, 368 (Can.) (tying dignity to “identity, selfworth, and emotional wellbeing.”). 171. See Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779, 812, 816 (Can.) (Cory, J., dissenting) (proposing that it is the concept of dignity that “lies at the heart” of the prohibition against cruel and unusual punishment and that such punishments are “indignities” that are “the ultimate attack on human dignity.”). 172. See Miron v. Trudel, [1995] 2 S.C.R. 418, 420 (Can.) (stating that “discrimination . . . touches the essential dignity and worth of the individual . . . .”); see also McKinney v. University of Guelph, [1990] 3 S.C.R. 229, 393 (Can.) (finding that there is an “element of human dignity at issue” in mandatory retirement policies on the basis of age at universities); Thibaudeau v. Canada, [1995] 2 S.C.R. 627, 722 at para. 207 (Can.) (holding that an individual’s freedom to form a family relationship of choice “touches on matters so intrinsically human, personal and relational that a distinction . . . on this [basis] must often violate a person’s dignity.”). 173. R. v. Morgentaler, [1988] 1 S.C.R. 30, 166 (Can.). 174. R. v. Kapp, [2008] 2 S.C.R. 483, 22 (Can.).
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The Right to Dignity Rex D. Glensy - Columbia Law School

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