Dignity, Equality, and Second Generation Rights

Abstract

The process of naming dignity as the touchstone of equality analysis in Canadian s. 15 jurisprudence has been laborious. Although human dignity has long been a value in our political culture, it has not enjoyed as much attention as some of the other “big” concepts that structure constitutional thinking. This concept must not only be more fully fleshed out, it must be brought to bear more perspicaciously on the analysis of equality claims. To that end, I offer a new interpretation of the Law test, reconfiguring it around three forms of indignity implicitly recognized by the case law as violations of equality rights. Most of the case law relies on two of these: basing legislation or state policy in prejudice, or in stereotype. There are, however, hints of a third form: denial of benefits and forms of participation in social life so important they can be said to (partly) constitute a life with dignity. The idea of dignity-constituting benefits extends the reach of equality law by focusing on the social institutions, practices, opportunities, and realms of participation that are integral to a life with dignity in our society. These sorts of benefits help to define social citizenship for us by singling out practices participation in which marks full membership in society. This analysis provides a language and conceptual framework for thinking through claims to social programs, including those designed to alleviate or eliminate poverty – those generally grouped under the heading of “second generation rights.” Building on the analysis in Eldridge and extending it to criticize the decision in Gosselin, I illustrate how s. 15 can be interpreted to protect access to such dignity-constituting benefits.

Keywords: Equality Rights, Dignity, Socio-economic Rights