February 1, 2004 ConstitutionalSince the Supreme Court of Canada decided Gosselin v. Quebec (Attorney General) in December 2002, 1 much ink has been spilled pouring over the rather voluminous decision. Earlier this year, I contributed to this discussion by penning an article in Fraser Forum examining the impact Gosselin may have on potential future section 7 Charter litigation involving welfare schemes, especially in Ontario and British Columbia where recipients of a range of ages may be denied welfare for failing to participate in a welfare program or because of a benefit time limit.2 Although the crux of that article and Gosselin concerned s. 7, the “human dignity” component of the equality rights analysis under s.l5(1) ofthe Charter also warrants attention, especially in light of recent academic commentary.
In Law v. Canada (Minister of Employment and fmmigration) ;1 the Supreme Court unanimously rearticulated the equality test under s. 15, situating “human dignity” as the central element of equality. Thus, the Court found that in order for an impugned government action to constitute an infringement of s. 15 equality rights, the action must be held to deleteriously impact a claimant’s human dignity by “perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society.”• The Court went on to define human dignity as “the realization of personal autonomy and self-determination. Human dignity means that an individual or group feels self-respect and self-worth…Human dignity is harmed when individuals and groups are marginalized, ignored or devalued.
In Gosselin, in a close 5–f decision, the Supreme Court held that s. 15 of the Charter was not violated by a now-defunct Quebec welfare regulation that reduced welfare payments in the late 1980s from $434 to $163 per month for able-bodied adult recipients under 30, unless they participated in job training, community work, or schooling. In their human dignity analysis, the majority found that the work participation incentive for those under 30 worked towards the realization of goals that go to the heart of the equality guarantee: self-determination, personal autonomy, self-respect, feelings of self-worth, and empowerment,” which are”[t]he stuffand substance… essential [to] human dignity,”-such that “a reasonable person in the claimant’s position would be less likely to view.. . a law designed to promote the claimant’s long-term independence and self-sufficiency “as an assault on her inherent human dignity.”
However, according to recent commentary from the law faculty of Osgoode Hall, human dignity analysis has been steadfastly moving backwards since the first equality decision in Andrews v. Law Socie~J’ of Britisb Columbia, 10 up until and including Gosselin. In recent presentations, Professor Cameron and L1wrence have expressed concern that human dignity will be employed in a classical liberal tradition to serve ends deemed undesirable to them, by placing an emphasis on equal individual rights away from a focus on group.based historical disadvantage. 11 Nevertheless, given the undeniable malleability of human dignity as a concept, it is not clear why human dignity should be understood to serve only as a bulwark against a plethora of welfare reforms aimed at transitioning recipients off of welfare and into employment, unless of course these academics have other jurisprudential ends in mind.
Human dignity is not a one-sided coin. To mint human dignity as such would assume that we all define human dignity in identical ways, and seek its articulation in an identical manner across a broad range of public policies. However, this is not the case. While the pursuit of human dignity has manifested itself in the pursuit of substantive equality, it has also manifested itself in the pursuit of individual liberty, as is especially the case in the United States. To suggest that ··equality should necessarily trump liberty is to dismiss too quickly a rich legacy of American and liberal democratic political thought.”
The tension boils down to those who. like Cameron and Lawrence, assume that the recognition of human dignity must emanate from the state, via bigger government and related expenditures.
However, as Gibbins points out, If we assume that equal human dignity is best addressed through civil society and personal relationships, and/or through enlarging the space for individual liberty and freedom,” then recognizing human dignity does not entail increases in the size and scope of government, but more freedom through less government.
This is essentially what the majority in Gosselin was getting at when it held that Quebec’s work-related welfare regulation promoted human dignity by fostering independence rather than dependence, and feelings of self-worth rather than self-loathing on the part of recipients. In other words, a welfare law aimed at the promotion of human dignity is or at least ought to be measured by the degree to which it engenders freedom from dependence, freedom of self-determination, and the ability to effect changes in one’s life. Using these yardsticks to measure the success ofwelfare reforms in the United States under the 1996 Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), yields findings of decreasing rates of dependency and accompanying dramatic improvements in the lives of former welfare recipients, evidenced by employment gains, earnings increases, declining poverty rates, and improved child outcomes.
In Canada, these results are mirrored in recent Statistics Canada findings. In the end, the majority of.Justices on the Supreme Court have affirmed in Gosselin that the human dignity coin at play in equality jurisprudence does indeed have two sides, despite the grumbling of a cadre of legal academics. As such, even those with a predisposed preference for greater individual liberty over substantive equality, must heed the possibility that the human dignity via independence arguments at play in Gosselin may not pan out the same in other cases, such as the upcoming Supreme Court appeal in Falkiner u. Ontario (Jlinisti:J’ of Community and Social Seruices), 1″ or other possible future cases dealing with the total removal of welfare benefits from recipients of a wide range of ages for reasons of a benefit time limit or failure to participate in a workfare-type program. Thus, despite the less than encouraging developments in Gosselin as outlined in my aforementioned earlier article, the s. I ’5 analysis in this case provides reasons for continued optimism in Charter jurisprudence at the nation’s highest court.