In Pursuit of Equality: Bringing Human Dignity to the Forefront of Section 15

Abstract

While it is clear that section 15 of the Charter of Rights and Freedoms should be read as prohibiting only of those violations of equality that amount to discrimination, it remains unclear how to determine what it means for a state to treat its citizens as equals, and more specifically, what constitutes discrimination. Thus, the idea of human dignity in section 15 the Charter has been, in many ways, groundbreaking in its recognition of the far-reaching impact of unequal treatment. There remains, however much scholarly dissension surrounding the concept’s meaning and use within section 15 equality jurisprudence. As a result, many have argued that the concept suffers from ambiguity and indeterminacy, thus creating an additional burden on equality claimants. This work advances the thesis that the concept of human dignity, understood in the objective sense as autonomy and self-determination, explains the nature and scope of the government’s obligation to show equal concern and respect, and offers us valuable guidance as to why certain types of unequal treatment are unfair and illegitimate. The concept can, I believe, help to delineate how equality is to be conceived, specified and realised under section 15 of the Charter. To make my case, I reject and show as flawed the Supreme Court of Canada’s interpretation and use of dignity in section 15(1) jurisprudence. Finally, in an attempt to demonstrate that the concept of dignity is relevant and necessary to an analysis of discrimination, I show that such a concept is in fact grounded in Sophia Moreau’s own illuminating account of the wrongs of unequal treatment.