CIAJ conference emphasizes ‘fundamental’ right of dignity in Canadian law

By Amanda Jerome

Law360 Canada (November 3, 2022, 11:35 AM EDT) -- The concept and importance of dignity in Canadian law was highlighted at the Canadian Institute for the Administration of Justice’s (CIAJ) annual conference, where panellists and the chief justice of Canada remarked on this “fundamental” and “ubiquitous” right.

Chief Justice Richard Wagner stressed in his welcoming remarks that “few rights are as fundamental to human flourishing or to our Canadian way of life as the right to dignity.”

“Indeed, it is a right that applies to each of us. It touches the essence of who we are, in all spheres of our lives,” he added.

Panellists at CIAJ conference (l-r) Lynn_Smith, Jacob_Weinrib, Wayne_Sumner_and Cheryl_Milne.

Panellists at CIAJ conference (l-r) Lynn Smith, Jacob Weinrib, Wayne Sumner and Cheryl Milne.

The conference, held in-person in Halifax and virtually from Oct. 26-28, focused on the “right to dignity in Canadian law.”

The chief justice noted that 1982 was a “turning point for Canada” and the “most significant change, at least in regards to the right to dignity, occurred with the enactment of the Charter.”

He said, “revolution came to pass” in 1982 when “Canada adopted the Charter and affirmed that ours is a country defined by the rule of law and respect for the individual.”

The chief justice stressed that the “focus on dignity” has made Canada a “leader in the global rights revolution.”

“Apex courts around the world, from the Constitutional Court of South Africa to the Supreme Court of Israel, continue to look to our Charter jurisprudence. They are interested in how Canadian courts have conceptualized and defined an individual’s rights,” he explained, noting that since 1982, “the Supreme Court has affirmed the foundational importance of dignity in many cases.”

With regards to the present day, the chief justice emphasized that “while the rights revolution of the past four decades was impressive, COVID-19 has raised new dignity issues.”

Supreme Court of Canada Chief Justice Richard Wagner

Supreme Court of Canada Chief Justice Richard Wagner

“What does dignity mean in the context of a global pandemic? How should we treat the elderly in our society? How can we ensure that all Canadians have adequate access to mental health resources within the justice system and more broadly?” he asked, noting that “COVID-19 has touched every aspect of contemporary life.”

He also stressed that “dignity is not an issue that only arises in the courts of law,” but also in “prisons around the country” as well as “on-screen and on-stage and in the context of social media.”

“It arises in the home. Dignity, then, is a matter of concern for all Canadians,” he added.

The conference’s first panel, titled “From Notion to Norm: The Many Meanings of Dignity,” was chaired by Lynn Smith, a former justice of the Supreme Court of British Columbia, and included Jacob Weinrib, an associate professor at Queen’s University Faculty of Law; Wayne Sumner, a professor emeritus at the University of Toronto; and Cheryl Milne, the executive director of the David Asper Centre for Constitutional Rights.

The panel reflected on the “meaning of dignity” and whether it has a “core meaning.”

Sumner noted that there are “frequent, if not ubiquitous, references to dignity in the Supreme Court adjudication of Charter cases.” He noted that in 2015, the Supreme Court in Carter observed “our system of justice, which is founded on a belief in the dignity and worth of every human person.”

The “basic idea” that Sumner took away from the “notion of the worth of the human person is that persons matter in their own right, and not merely as members of collectivities, and they deserve protection against being used for the pursuit of collective goals.”

Dignity is an “inherent value or theme in equality rights cases,” Milne explained, noting that if “you do a search for ‘dignity’ and ‘case law,’ you come up with thousands of hits.”

She said that while “ubiquitous” in “terms of its use as a word,” few decisions “affirm dignity’s importance” and they are “often very short on definition.”

“Some of the different conceptions of dignity in law,” she said, include “the inherent worth of each individual,” the “concept of autonomy and control,” and “in relation to recognition and respect.”

Milne also noted that dignity can be used as an “absolute prohibition,” noting, as an example, that “dignity is often the theme in absolute prohibitions against torture.”

Another use, she found, was “enabling.” Which she described as the “positive use to empower people and promote conditions for an autonomous life,” such as “control over your personal privacy.”

The final use, she noted, was “compensatory.”

“In private law, dignity often functions as a measuring device in terms of damages or what has actually happened to the individual. The problem is the malleability of the concept is demonstrated by the different definitions that our Supreme Court has utilized depending on the case, and sometimes within the same case, written in the same reasons written by the one judge,” she added.

Milne also noted that “in law, human dignity means that an individual or group feels self-respect or self-worth. It is concerned with physical and psychological integrity and empowerment.”

Therefore, “human dignity is harmed by unfair treatment premised upon personal traits or circumstances which do not relate to the individual needs, capacities or merits.”

“So, what are the problems then of the concept of dignity as a foundational value?” she asked, noting “most of the problems stem from its lack of definition” and “judicial subjectivity.”

Weinrib described “human dignity” as the “most abstract idea about the relationship between the individual and the state.”

“As a matter of its structure, it’s a kind of basic moral status that is inherent, as opposed to what? As opposed to acquired. That’s universal, as opposed to what? As opposed to selective in its reach. And equal, as opposed to variable and its extent. That’s its structure as a content. Human dignity is protective of the individual’s right to choose his, or her, or their own ends,” he explained.

He stressed that “respecting and protecting human dignity is the duty of all state authority.”

“If we take these ideas about structure, content and the relationship of human dignity together, we arrive at, I think, a fundamental dichotomy that distinguishes the situation of persons and the public authorities to which they are subject. Persons find themselves free to determine their own ends. Public authorities, in contrast, have a mandatory end. They have an obligatory end of respecting and protecting the dignity of each person subject to their authority,” he added.

Weinrib noted that the “basic question” for lawyers is “whether we will perfect these doctrines and thereby create a legal order that lives up to dignity’s demands. Or whether we’ll dilute or dissolve these doctrines and ultimately return to a form of legal ordering in which public authority is not subject to the demands of dignity. The dignity is instead subject, the various vicissitudes of public authority.”

The conference was sponsored by LexisNexis, publisher of The Lawyer’s Daily.

Photos courtesy of the CIAJ

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