What an undignified bunch of hayseeds we Canadians must have been for the first 109 years of our country’s existence.  In all that time, the Supreme Court of Canada never saw fit to edify us in its judgments on the meaning of "human dignity," not even once.

The court finally broached the subject in 1977, then let it fall dormant again for another eight years.

Recently, they’ve begun to rectify this scandalous omission--with a vengeance.  No fewer than 67 cases have referred to human dignity since 1985.  There have been some truly banner years:  eight cases in 1999; twelve in 1995.

Despite all this judicial elucidation, I would argue that the court has diminished, rather than enhanced, our understanding of the subject.  

Two of the longest discussions occur in cases challenging the Canada Pension Plan Act.  In Law v. Canada [1999] 1 S.C.R. 497, a 30-year-old widow was denied CPP survivor’s benefits because she hadn’t reached age 45.  In Granovsky v. Canada [2000] S.C.J. No. 29, a disabled man was denied benefits because he hadn’t paid into CPP long enough.   

In each case, the court held that the plaintiff had been treated differently from other people on grounds that were prohibited under subsection 15(1) of the Charter of Rights and Freedoms.  However, in each case, the court held that this did not constitute "discrimination" because the difference didn’t violate the plaintiff’s human dignity.  The statute wasn’t written in a way that would make the plaintiff feel "less worthy of recognition or value".

What an utterly subjective test!  I’ll bet Mr. Granovsky did feel that the law was treating him as less worthy of recognition.  I’ll bet his lawyers and the intervener (the Council of Canadians with Disabilities) thought so too.  Otherwise they surely wouldn’t have pursued the case all the way to the Supreme Court, particularly after Nancy Law’s rejection seven months earlier for insufficient feelings of unworthiness.  

What makes seven judges’ opinion on this point more reliable than a greater number of laymen’s opinions?  Surely it couldn’t be that judges’ viewpoints are more worthy of recognition than other people’s?

More troubling, however, is the notion apparently held by both the court and the plaintiff that being granted the status of dependency and being permitted to sup at the public trough would somehow enhance or restore one’s dignity if it had been found to have been violated.  

This idea appears with a slight twist in M v. H [1999] 2  S.C.R.3.  A lesbian was allowed to obtain support from her former female partner because the law excluding her from the definition of "spouse" was held to violate her human dignity.  Presumably, the status of being someone else’s financial ward and receiving someone else’s money would restore her dignity. 

These are pretty funny notions of dignity, if you ask me.  I’m from the old school, having developed my ideas on this subject well before 1985.  In my view, dignity embraces traits such as independence, self-reliance, honesty and self-discipline.  It is a quality that comes from within, not something that can be bestowed from without.  It certainly demands that you respect the rights of others.

It’s hard to conceive of a burglar or mugger being dignified as he robs his victims at gunpoint.  Yet lesbian M, never having obtained H’s consent to enlist in a legal regime requiring mutual support, used the courts as a loaded gun to coerce money from her.  That’s dignified?  And what about H’s dignity—doesn’t it matter?

Similarly, the very existence of the Canada Pension Plan is an assault on the dignity of Canadians.  Its compulsory nature implies that we are either too stupid or too irresponsible to save for our own retirement.  Like children or idiots, we have to be forced into the program, supposedly for our own good.   But then it turns out to be a gigantic Ponzi scheme, actuarially unsound, that transfers money from the younger generation to the older.  Yup, receiving benefits from CPP sure is dignified.

Perhaps least dignified of all are the court’s attempts to refashion the meaning of "discrimination" beyond all recognition, and to throw a monkey wrench into the workings of the Charter of Rights and Freedoms.  

The scheme of the Charter was fairly straightforward, once upon a time.  Laws that treat people unequally on the basis of irrelevant personal characteristics are unconstitutional under subsection 15(1) unless they are an affirmative action program allowed by subsection 15(2), or unless the court decides that they can be "demonstrably justified in a free and democratic society" under section 1.  

The court’s assertion that legislative distinctions don’t constitute "discrimination" unless they violate human dignity isn’t supported by any of the several dictionaries I checked.  Nor, indeed, does the court cite any authority for this proposition, other than itself.  It seems to have made this up out of thin air.   

Why?  Who knows?  Maybe it wants to avoid making section 1 decisions to dodge the accusation that it is governing rather than merely interpreting.  However, the resulting obfuscation is an insult to anyone who ever dreamed the law could be objective, predictable and comprehensible to those who must obey it.