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Human Dignity, Human Rights and the End of Life: The North Wind Blowing from Canada David

M. Brown1 Suffering and Hope, University of St. Thomas, Houston November 10-13, 2005 On the views of human dignity held by a society, whether consciously or unconsciously, depend many other matters of basic importance.2 I. The Issue In recent years, Canadian appellate courts have styled themselves as groundbreakers in the areas of human and constitutional rights and they tout the interest shown in their jurisprudence by Australian and South African courts. While American constitutional law traditionally has remained impervious to developments north of the border, the rapidity and eagerness with which the Massachusetts Supreme Court in the Goodridge3 decision embraced the equality reasoning of Canadian provincial appellate courts to create a right to same-sex marriage should cause American jurists and practitioners to pause and reflect on some of the conceptual developments currently underway in Canadian constitutional law. This paper describes the increasing use by Canadian courts and legal academics of the concept of human dignity in cases interpreting constitutional rights. In particular, the paper will look at the potential impact of the Canadian judicial concept of human dignity on end of life issues. Like the United States, Canada enjoys a Constitution that contains a Bill of Rights, known as the Canadian Charter of Rights and Freedoms (the Charter). Enacted only in 1982, the Charter guarantees individuals a fairly standard package of fundamental freedoms from undue interference by governmental action, including guarantees of the equal protection and benefit of the law and the right not to be deprived of liberty or security of the person except in accordance with the principles of fundamental justice.4 Unlike the American Bill of Right, the Canadian Charter expressly provides that any of

Partner, Stikeman Elliott LLP (Toronto). Richard C. Dales, A Medieval View of Human Dignity (1977) 38 Journal of the History of Ideas 557 3 Goodridge v. Department of Public Health, 798 N.E. 2d 941 (Mass., 2003) 4 Section 7 of the Charter provides: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. Section 15 provides: Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
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2 the freedoms it guarantees are subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic country.5 II. Human Dignity: The Prevailing Canadian Judicial Conception The Oxford English Dictionary defines dignity as the quality of being worthy or honourable. 6 Although the Canadian Constitution contains no explicit reference to it, from the earliest days of Charter interpretation the Canadian Supreme Court (the Court) has repeatedly invoked the concept of human dignity as one fundamental to any understanding of the rights guaranteed by the Charter. The Court has commented that the values and principles essential to a free and democratic society include respect for the inherent dignity of the human person, commitment to social justice and equality,7 and that a democratic society capable of giving effect to the Charters guarantees is one which strives toward creating a community committed to equality, liberty and human dignity.8 While some judges have described human dignity as a notoriously elusive concept9, in recent years the Court has given human dignity a place of central importance. Individuals will truly live in dignity, according to the Court, when equality is a reality and fraternity and harmony are achieved.10 In its seminal 1999 decision in the Law11 case, the Court cast human dignity as the key concept for understanding equality. The purpose of the equality guarantee, in the Courts view, is to prevent the violation of essential human dignity and freedom from the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration.12 Remedying discrimination ensures human dignity.13 Eloquent and laudable language, but what constitutes the content and basis for human dignity? In Law the Court linked human dignity with personal autonomy and selfdetermination14: Human dignity is harmed by unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities, or merits. It is enhanced by laws which are sensitive to the needs, capacities, and merits of different individuals, taking into account the context underlying their differences.

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Canadian Charter of Rights and Freedoms, s. 1 The Compact Edition of the Oxford English Dictionary (356). Leon Kass points out that the central notion of dignity is that of worthiness, elevation, honor, nobility or height: Death with Dignity and the Sanctity of Life in Michael M. Uhlmann, ed., Last Rights? Assisted Suicide and Euthansia Debated (Grand Rapids, Mich: Eerdmans, 1998), 213 7 R. v. Oakes, [1986] 1 S.C.R. 103, at 136. 8 R. v. Zundel, [1992] 2 S.C.R. 731, at 806. 9 Egan v. Canada, [1995] 2 S.C.R. 513, per LHeureux-Dube, J. at para. 40. 10 Vriend v. Alberta, [1998] 1 S.C.R. 493, at paras. 67 and 68 11 Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497. 12 Ibid., para. 51 13 Ibid., para. 52 14 Law, para. 53

3 Human dignity is harmed when individuals and groups are marginalized, ignored, or devalued, and is enhanced when laws recognize the full place of all individuals and groups within Canadian society. Human dignity within the meaning of the equality guarantee does not relate to the status or position of an individual in society per se, but rather concerns the manner in which a person legitimately feels when confronted with a particular law. Does the law treat him or her unfairly, taking into account all of the circumstances regarding the individuals affected and excluded by the law?15 In cases since Law the Court has continued to regard human dignity as equivalent to individual autonomy and self-sufficiency. In 2002 the Court listed self-determination, personal autonomy, self-respect, feelings of self-worth and empowerment as the stuff and substance of essential human dignity.16 Violating human dignity also occurs when the law treats persons as second-class citizens, demeans them or treats them as less capable for no good reason.17 Although not all Canadian academic commentators are comfortable with the Courts use of human dignity as a tool for interpreting constitutional rights, with one leading scholar dismissing the concept as vague and confusing,18 many champion the concept. Professor Lorraine Weinrib of the University of Toronto argues that rights protection crystallizes human dignity and stands as the foundation for state authority.19 Her colleague, Professor Denise Reaume, regards dignity as the substantive concept informing equality rights,20 and like the Court closely links human dignity with individual autonomy.21 That human rights depend in some sense on human dignity likely is an uncontroversial proposition. Jean Bethke Elshtain, for example, shares common ground with Weinrib that the dignity of the person is a necessary prior assumption from which rights derive.22
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Ibid. In Gosselin v. Quebec (Attorney General), [2002] 4 S.C.R. 429, per McLachlin, C.J. at para. 65. Elsewhere in her decision the Chief Justice wrote: As a matter of common sense, if a law is designed to promote the claimants longterm autonomy and self-sufficiency, a reasonable person in the claimants position would be less likely to view it as an assault on her inherent dignity. [para. 27] 17 See Auton (Guardian ad litem of) v. British Columbia (Attorney General), [2004] 3 S.C.R. 657, where at para. 63 McLachlin, C.J. stated: If differential denial of a benefit provided by law on a ground enumerated in s. 15(1) or analogous thereto were established, it would still be necessary to examine whether the distinction was discriminatory in the sense of treating autistic children as second-class citizens and denying their fundamental human dignity. The failure to establish the basis for a claim for discrimination deprives us of the necessary foundation for this final inquiry. In Egan v. Canada, [1995] 2 S.C.R. 513 LHeureux-Dube, J. stated at para. 36: Equality means that our society cannot tolerate legislative distinctions that treat certain people as second-class citizens, that demean them, that treat them as less capable for no good reason, or that otherwise offend fundamental human dignity. 18 Professor Peter Hogg, What is Equality? The Winding Course of Traditional Interpretation, 4th Annual Charter Conference, Ontario Bar Association, September 30, 2005, at p. 14, at 338. 19 Lorraine Weinrib, Human Dignity as a Rights-Protecting Principle (2004), 17 National Journal of Constitutional Law 325, at 338. 20 Denise G. Reaume, Discrimination and Dignity (2003), 63 Louisiana Law Review 645 21 At 673 Reaume writes: respect for dignity includes respect for agency as a fundamental characteristic of humanity. References to the importance of self-determination or personal fulfillment recognize human beings as choosers and planners. 22 Jean Bethke Elshtain, The Dignity of the Human Person and the Idea of Human Rights: Four Inquiries (19992000), 14 Journal of Law and Religion 53.

4 The generality of the term human dignity permits different commentators to agree upon the importance of the concept while harbouring significantly different views of its content. Weinrib, for example, struggles to define human dignity, and draws heavily on the jurisprudence under the German Basic Law23 to proffer some understanding of the legal meaning of the term. For her human dignity only finds meaning in the context of a factual setting, but includes (i) a social order that recognizes the equality of humankind; (ii) respect of physical identity and integrity; (iii) respect of intellectual and spiritual identity and integrity; (iv) limitation of official power; and (v) the guarantee of individual and social existence.24 Reaume regards dignity as encompassing a range of characteristics having to do with composure, self-control, invulnerability and self-assuredness.25 She recognizes that not all possess these characteristics, and acknowledges that another view of dignity as a moral-matter ascribes dignity to human beings in a way that is not contingent on being useful, or attractive, or pleasant, or otherwise serving the ends of others.26 Reaume attempts to reconcile these two views of human dignity by painting non-contingent dignity as a goal towards which to strive,27 while urging law-makers to pay attention to ensuring a subjective sense of self-worth.28 In the end, Reaumes conception of human dignity remains very much one of the conscious, decision-making autonomous individual who is capable of having a conception of the self.29 Elshtain parts company with such a focus on autonomy, when she argues that much contemporary rights talk is knowingly disentangled from any substantive, normative view of persons, and instead contends that our dignity involves enjoying and making use of a responsible freedom, not driven by coercion but motivated by a sense of duty.30

III. Human Dignity: A Broader Perspective Dignity is not a modern concept and disputes over its meaning are not new. According to one writer, [t]he ancients simply assumed the special position and worth of our species while the ancient Hebrews saw human beings as supreme among Gods creation.31

Article 1 of the German Basic Law provides that human dignity shall be inviolable (Weinrib, 337) Weinrib, 339-340 25 Reaume, 674 26 Reaume, 675 27 David Feldman also argues that human dignity is a desirable state, an aspiration, which some people might manage to achieve some of the time, rather than a right. Nevertheless, human rights, when adequately protected, can improve the chances of realising the aspiration. (682) 28 Ibid., 676. 29 Ibid., 677. 30 Jean Bethke Elshtain, The Dignity of the Human Person and the Idea of Human Rights: Four Inquiries (19992000), 14 Journal of Law and Religion 53, at 53-54. Michael Novak, in Human Dignity, Human Rights 1999 First Things (November 1999), 39, writes, at 41: Dignity inheres in [persons] because they are destined to be free to reflect and to choose, and thus to be provident over the course of their own lives, responsible for their own actions. 31 Willard Gaylin, In Defense of the Dignity of Being Human, The Hastings Centre Report, August 1984, 18..
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5 Most agree that the bases for medieval views on human dignity were mans creation in the image and likeness of God and his dominions over other creatures,32 with the Reformation producing a change in the medieval notion of dignity by extending it to encompass not just the species, but each individual member of the species.33 Kant, however, is the figure most frequently pointed to as the author of the regnant modern conception of dignity. For Kant, the dignity or worth of the human being was not based on his special reasoning powers, but on freedom and autonomy. As he wrote in The Doctrine of Virtue: Man in the system of nature is a being of slight importance ... But man regarded as a person that is, as the subject of morally practical reason is exalted above any price. ... He possesses a dignity (an absolute inner worth) by which he exacts respect for himself from all other rational beings in the world: He can measure himself with every other being of this kind and value himself on a footing of equality with themAutonomy then is the basis of dignity of human and of every rational nature.34 Gaylin contends that the Kantian view of dignity was eroded by 19th century psychology which attacked the concept of human autonomy and argued that behaviour is not free, but a product of built-in experiences, prejudices and determinants.35 Others acknowledge that freedom is an important element of human dignity, but in a different way than Kant. Freedom, they argue, must also take into account the ends it pursues and the social context, or community, in which it is exercised. In Dignitatis Humanae, the Second Vatican Council described humans as dignified in the sense that they are beings endowed with reason and free will and therefore privileged to bear personal responsibility. Building on this, Jean Bethke Elshtain argues that the dignity of self cannot be dehistoricized and disembodied as separate from the experiences of human beings as creatures essentially, not contingently, related to others.36 Or, as put by Michael Novak, Persons come to fulfillment only in community, and communities have as their end and purpose the raising of persons worthy of their inherent dignity.37 A number of commentators who advocate the notion of human dignity as individual autonomy nonetheless sense that dignity as autonomy cannot stand on its own, but requires support from a more innate sense of human dignity. In the Canadian context, Daryl Pullman38, writing in the wake of the Supreme Court of Canadas Rodriguez

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Dales, 557 Gaylin, 18 34 Quoted in Gaylin, supra., at 19 35 Gaylin, supra. at 19. He also argues that there are a number of human aspects beyond autonomy that dignity and elevate the human species: conceptual thought, the capacity for technology, the range of human emotions, freedom from instinctual fixation. (20) Elshtain, supra., at 57. Michael Novak, Human Dignity, Human Rights (1997), First Things, Vol. 97, 39 38 Daryl Pullman, Dying with Dignity and the Death of Dignity (1996), 4 Health Law Journal 197. David Feldman , in Human Dignity as a Legal Value Part I, [1999] Public Law 682, echoes some of Pullmans argument.
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6 decision narrowly upholding the criminal prohibition against assisted suicide, commented that the concept of human dignity has shifted from a species-referenced conception that resides in the uniqueness of human beings qua their humanity to a dignity that focuses on the individuals ability to make autonomous choices.39 The former he terms basic dignity the ascription of a non-contingent, unique moral worth to human beings qua their humanity40 and the latter personal dignity, or an individually-referenced conception of dignity, "dignity as self possession".41 While favouring an individualcentred notion of dignity as better suited for dealing with the practical contingencies of life42 , Pullman recognizes the limits of such a notion: Of more immediate concern is a practical limitation, namely that dignity as selfpossession gives us less than we require. Insofar as it attaches the dignity of persons to individually referenced capacities, human beings who fail to exhibit or otherwise exercise the requisite capacities are in danger of expulsion from the moral community. To equate human dignity with individually referenced capacities reduces dignity to a shorthand form for rational autonomy, selfdetermination, self-control, and the like.43 The danger of applying a concept of human dignity as autonomy in the medical context is obvious to Pullman: .it is precisely those who suffer the loss of those capacities deemed necessary for dignity who are the subjects of our most immediate concern. Unlike the species-referenced conception that guarantees the dignity of each human being irrespective of the presence or absence of contingent features, personal dignity is enjoyed by only those with certain capacities.44 Pullmans solution? While personal dignity will allow us to reach specific decisions on particular moral problems, basic dignity (whatever its source may be)45 will constrain from the outset the kinds of choices and decisions possible.46 Basic dignity acts not merely as a safety check on autonomous choices, but provides, according to Pullman, justification for personal dignity: In the absence of belief in the inherent dignity of all humanity, the justification for each individual's right to personal dignity is tenuous at best, and in danger of slipping into a moral void.47 Pullman wants to keep

Pullman, supra., Quicklaw versions, paras. 5 and 6. Ibid., para, 12 41 Ibid., para. 14. 42 Ibid., para. 15 43 Ibid., para. 18 44 Ibid., para. 19 45 In Pullmans words, Whether basic dignity is assumed at the outset to be the product of a particular metaphysical perspective (as it is in various theistic moralities), or established as the happy result of some less tendentious process (perhaps as part of an overlapping consensus at which rational agents would arrive), the idea that all human beings have prima facie moral standing must be manifest in any moral theory that hopes to pass muster as an acceptable thesis to guide our moral discourse. [28] 46 Ibid., para. 33 47 Ibid., para. 62
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7 basic dignity in the collective back-pocket to ensure that individual autonomy does not leave some behind in an undignified state. In broad terms, then, human dignity has been seen, on the one hand, as an inherent property of all human beings reflecting their distinctive worth in comparison with other creatures, and on the other as a function of individual autonomy and the ability to choose. In the following review of the Canadian cases on human dignity involving questions of life and its protection, it will be seen that Canadian courts have tended to focus on the centrality of individual autonomy while shying away from any notion of a non-contingent moral worth of human beings. IV. Human Dignity and Human Life: The North Wind Blowing (a) Dignity and Liberty: Mortgentaler

In these ironic times, it should come as no surprise that one of the first cases under the Canadian Charter to consider the meaning of human dignity, R. v. Morgentaler,48 involved a (successful) challenge to the federal Criminal Code provisions regulating (not prohibiting) abortions. While most of the judges constituting the majority focused their attention on measuring the administrative burdens of the regulatory regime, one judge, Justice Bertha Wilson, described the type of human protected by the Charter a sort of portrait of the Charter man and the dignity that accrues to such an individual. Painting the Charter not so much as a manifesto for restrained government, but as a guarantee of a protected enclave to which an individual may retreat, Wilson, J. wrote: The Charter is predicated on a particular conception of the place of the individual in society. An individual is not a totally independent entity disconnected from the society in which he or she lives. Neither, however, is the individual a mere cog in an impersonal machine in which his or her values, goals and aspirations are subordinated to those of the collectivity. The individual is a bit of both.49 Accordingly, Charter-guaranteed rights erect around each individual an invisible fence over which the state will not be allowed to trespass with the courts mapping out piece by piece, the parameters of the fence. 50 In Wilsons view, the Charters guarantee of individual liberty is inextricably tied to the concept of human dignity51, and at the heart of human dignity lies the freedom to choose:52

[1998] 1 S.C.R. 30 Ibid., para. 226 50 Ibid. 51 Ibid., para. 227 52 Wilson, J. quotes with approval Professor Neil MacCormick, who in Legal Right and Social Democracy: Essays in Legal and Political Philosophy (1982), wrote, at 41, : To be able to decide what to do and how to do it, to carry out
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8 The idea of human dignity finds expression in almost every right and freedom guaranteed in the Charter. Individuals are afforded the right to choose their own religion and their own philosophy of life, the right to choose with whom they will associate and how they will express themselves, the right to choose where they will live and what occupation they will pursue. These are all examples of the basic theory underlying the Charter, namely that the state will respect choices made by individuals and, to the greatest extent possible, will avoid subordinating these choices to any one conception of the good life. Thus, an aspect of the respect for human dignity on which the Charter is founded is the right to make fundamental personal decisions without interference from the state.53 Consequently, Justice Wilson found that a regulatory regime that interfered with a womans capacity to reproduce affronted her human dignity because it asserted that the womans capacity to reproduce is not to be subject to her own control.54 While Justice Wilson may regard an individual as not a totally independent entity disconnected from the society in which he or she lives, her conception of human dignity rooted in the ability to choose without interference inclines heavily towards such a disconnectedness. This view of dignity tends to remove a person from the larger community in which she lives and to assess the persons dignity without considering her interaction with others. Such a conception of human dignity raises important questions about end-of-life issues: if dignity consists of the ability to choose and to act on those choices, on what basis can dignity be called upon to justify physician-assisted suicide in which the individual chooses to cease to be a choosing being?55 if a person lacks the capacity to choose, either because of young age or mental infirmity, does that persons inability to formulate some sense of selfrespect disqualify him or her from the capacity to be treated with dignity? does dignity stand independent of the result of ones choice and reside merely in the ability to make a choice? Or does the dignity of ones choice

one's own decisions and accept their consequences, seems to me essential to one's self-respect as a [page165] human being, and essential to the possibility of that contentment. Such self-respect and contentment are in my judgment fundamental goods for human beings, the worth of life itself being on condition of having or striving for them. If a person were deliberately denied the opportunity of self-respect and that contentment, he would suffer deprivation of his essential humanity. 53 Ibid., paras. 229 to 230 54 Ibid., para. 239 55 Kass, supra., at 201.

9 depend upon the ends chosen and the possibilities the choice holds out for realizing human excellence?56 The first issue was engaged in the Rodriguez case, the Supreme Courts decision on a claim for physician-assisted suicide; the second was raised, but avoided, in Latimer, a case involving a fathers murder of his disabled daughter.

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The Indignity of Suffering? Rodriguez57

The Criminal Code of Canada makes it an offence to counsel, aid or abet a person to commit suicide.58 Sue Rodriguez, who in her 40s suffered from ALS, challenged the law as infringing her rights to liberty and equality under the Charter. A bare majority of the Supreme Court upheld the prohibition on assisted suicide, notwithstanding which Rodriguez enlisted the assistance of a doctor and committed suicide. The Rodriguez case ignited a national debate over physician-assisted suicide which continues to this day: a private members bill seeking to amend the Criminal Code to permit physician-assisted suicide and euthanasia (styled the right to die with dignity amendment) is currently before the federal Parliament.59 Although unlikely to pass in its present form, the bill has prompted the Minister of Justice to announce his intention to consider legalizing assistedsuicide.60 In the Rodriguez case the Court wrote four opinions: the majority, and three dissenting judgments. While each took a different approach to the legal issues61, each, in its own way, considered and relied on the concept of human dignity in reaching its conclusion. This contrasts sharply with the two decisions issued to date by the United States Supreme Court on assisted suicide Glucksberg62 and Quill63 - neither of which refers to, or uses, the concept of human dignity in the course of the many opinions. Both the majority and the minority opinions in Rodriguez shared the view that human dignity is linked in some legally important way to individual autonomy and the ability to make choices. The majority put it this way: There is no question, then, that personal autonomy, at least with respect to the right to make choices concerning one's own body, control over ones physical and
Kass, supra., at 213. Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519 58 Criminal Code, s. 241 59 Bill C-407, An Act to amend the Criminal Code (right to die with dignity, First Session, Thirty- eighth Parliament 60 Cotler envisions law legalizing assisted suicide, National Post, November 3, 2005, p. A.5. 61 The majority concluded that while s. 241 of the Criminal Code violated Rodriguezs right to security of the person under s. 7 of the Charter, it did not do so in a way that contravened the principles of fundamental justice because the prohibition protects the vulnerable. LHeureux-Dube and McLachlin, JJ, found that the Criminal Code provision violated Rodriguezs security of the person in an arbitrary way that could not be justified, a view basically shared by Cory, J. Chief Justice Lamer, in his dissent, determined that the section violated Rodriguezs equality rights because it did not make available to the disabled an option available to the able-bodied ie. suicide. 62 Washington v. Glucksberg, 117 S.Ct. 2258 (1997) 63 Vacco, Attorney General of New York v. Quill, 117 S.Ct. 2293 (1997)
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10 psychological integrity, and basic human dignity are encompassed within security of the person, at least to the extent of freedom from criminal prohibitions which interfere with these.64 From this starting the point the majority accepted two propositions: (i) Rodriguezs illness stripped her of her dignity; and (ii) the prohibition against assisted suicide limited her ability to make autonomous choices thereby infringing her security of the person.65 What is of interest about the first point is how the majority accepted Rodriguezs claims that her illness, and the suffering and dependence accompanying it, affronted her human dignity: [Rodriguez] fears that she will be required to live until the deterioration from her disease is such that she will die as a result of choking, suffocation or pneumonia caused by aspiration of food or secretions. She will be totally dependent upon machines to perform her bodily functions and completely dependent upon others. Throughout this time, she will remain mentally competent and able to appreciate all that is happening to her. Although palliative care may be available to ease the pain and other physical discomfort which she will experience, the appellant fears the sedating effects of such drugs and argues, in any event, that they will not prevent the psychological and emotional distress which will result from being in a situation of utter dependence and loss of dignity.66 Up to this point, the minority found little to quarrel with in the majoritys analysis. All judges seemed to equate dignity with the autonomy to choose. For example, McLachlin, J., in her dissent regarded the right to security of the person as encompassing a notion of dignity67 flowing from the autonomy of the person: Security of the person has an element of personal autonomy, protecting the dignity and privacy of individuals with respect to decisions concerning their own body. It is part of the persona and dignity of the human being that he or she have the autonomy to decide what is best for his or her body.68 Two of the three dissenters also joined the majority in viewing Rodriguezs illness as undignified. Cory, J. forcefully contended that the pain associated with human illness offends human dignity: State prohibitions that would force a dreadful, painful death on a rational but incapacitated terminally ill patient are an affront to human dignity. 69

Rodriguez, supra., para. 136 Since the common law had long recognized the right to choose how one's body will be dealt with, even in the context of beneficial medical treatment to impose medical treatment on one who refuses it constitutes battery, with the result that the prohibition of the Criminal Code deprives [Rodriguez] of autonomy over her person and causes her physical pain and psychological stress in a manner which impinges on the security of her person. Rodriguez, at 137. 66 Rodriguez, supra., para. 137. 67 Rodriguez, para. 197 68 Ibid., para. 200 69 Ibid., para. 231. See also McLachlin, J. at para. 211.
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11 Where the majority and the dissenters parted company was over the question whether, in the eyes of the law, any value could countervail against individual autonomy, cast as the ability to choose. The majority found such a value in the sanctity of life. Although [r]espect for human dignity underlies many of the rights and freedoms in the Charter70, and is one of the underlying principles upon which our society is based71, the majority was not prepared to accede to Rodriguezs assertion that respect for human dignity and the autonomy of individuals were principles of fundamental justice.72 For them, a principle of fundamental justice must enjoy general acceptance among reasonable people73 and the majority was unable to discern anything approaching unanimity with respect to the issue before us. 74 Instead, the majority viewed the principle of sanctity of life as enjoying a greater consensus within Canadian law. Stressing that its view of human life as sacred or inviolable emanated ( la Dworkin)75 from non-religious sources, the majority saw the principle of human autonomy and dignity standing in opposition to the sanctity of life as can been seen in the following two passages from its judgment: the principle of sanctity of life is no longer seen to require that all human life be preserved at all costs. Rather, it has come to be understood, at least by some, as encompassing quality of life considerations, and to be subject to certain limitations and qualifications reflective of personal autonomy and dignity.76 What the preceding review demonstrates is that Canada and other Western democracies recognize and apply the principle of the sanctity of life as a general principle which is subject to limited and narrow exceptions in situations in which notions of personal autonomy and dignity must prevail.77 In Rodriguez, notions of personal autonomy and dignity did not prevail over the sanctity of life because of any concern by the majority for an innate, species-referenced sense of worth that might be violated, but because of prudential, public policy concerns that no law permitting assisted suicide could build-in adequate safeguards to prevent misuse.78

Rodriguez, per Sopinka, J. at para. 144. Ibid., para. 145 72 That respect for human dignity is one of the underlying principles upon which our society is based is unquestioned. I have difficulty, however, in characterizing this in itself as a principle of fundamental justice within the meaning of s. 7. While respect for human dignity is the genesis for many principles of fundamental justice, not every law that fails to accord such respect runs afoul of these principles. Rodriguez, per Sopinka, J. at para. 145 73 Ibid., para. 173. 74 Ibid. 75 I find more merit in the argument that security of the person, by its nature, cannot encompass a right to take action that will end ones life as security of the person is intrinsically concerned with the well-being of the living person. This argument focuses on the generally held and deeply rooted belief in our society that human life is sacred or inviolable (which terms I use in the non-religious sense described by Dworkin (Lifes Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom (1993)) to mean that human life is seen to have a deep intrinsic value of its own. Rodriguez, per Sopinka, J. at para. 129. 76 Rodriguez, para. 150. 77 168 78 In upholding the respect for life, it may discourage those who consider that life is unbearable at a particular moment, or who perceive themselves to be a burden upon others, from committing suicide. To permit a physician to
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12 So while the majority perhaps could countenance the strong taking their own lives to preserve against the indignities of pain and dependence, the vulnerable who might be swayed to take their lives, presumably at the wrong time, required protection. Weinrib is scathing in her critique of the majority judgment, essentially arguing that having bought into the principle of dignity as autonomy, the majority pulled their punch at the last moment. And there is a logic to Weinribs argument, albeit a chilling one. Equating the abandonment of laws proscribing suicide to a social revolution built upon respect for the dignity of the body and for equal individual autonomy,79 Weinrib argues that the emphasis in the majority judgment on the societal consensus supposedly reflected in the Criminal Code undercuts consideration of the primacy of individual autonomy and human dignity80 otherwise acknowledged by the majority. For the majority to subordinate the dignity of autonomy to the value of the sanctity of life represents, in Weinribs view, allowing the remnants of religious belief to influence impermissibly the interpretation of constitutional rights.81 By so doing, Weinrib contends the majority abandoned the suffering and the vulnerable, such as Rodriguez, in favour of privileging abstract values.82 By positioning the sanctity of life as standing in conflict against human dignity, and by accepting the view of dignity as autonomy, the majority fashioned a judgment replete with internal contradictions that Weinrib clinically exposes. Dignity as autonomous choice was presented most starkly by McLachlin, J. in her dissenting judgment in Rodriguez when she posed the question: [W]hat value is there, in life without the choice to do what one wants with one's life ..."?83 Such an absolute conception of autonomy contains its own dangers. By rooting dignity absolutely in autonomy, arguably one leaves little basis for protecting life.84 To focus exclusively on individual autonomy and the ability to make and act upon individual choices as the core of human dignity runs the risk of severely limiting the work the concept of human dignity may perform in support of human rights. If one lacks control over the major determinants of ones life, say because of a physical or mental disability, does such lack of control detract from ones dignity, or the meaning and value of ones existence? Do those who possess self-control enjoy human dignity, while those who lack it do not? To so contend would open up the possibility that a person would need to have additional characteristics other than simply being a person in order to be respected or regarded as possessing dignity.85 As Pullman argues, in the absence of some common understanding

lawfully participate in taking life would send a signal that there are circumstances in which the state approves of suicide. [174] 79 Lorraine Eisenstat Weinrib, The Body and the Body Politic: Assisted Suicide under the Canadian Charter of Rights and Freedoms (1994), 39 McGill Law Journal 618, 619. 80 Ibid., 620. 81 Ibid., 631-2 82 Weinrib, supra., 640 83 Rodriguez, para. 211. 84 Pullman, That is, might an overly zealous concern to protect the individual's moral right to aesthetic expression--a right that is itself rooted in the basic dignity of all humanity--have the paradoxical consequence of undermining the moral basis upon which that very right is predicated? Supra, para. 53. 85 Margaret A. Sommerville, Death Talk in Canada: The Rodriguez Case (1994), 39 McGill Law Journal 602, at 616.

13 that each life has dignity irrespective of the kind of life the individual is living, paying increased attention to the dignity expressed in the individual's life will only serve to undermine further the claims of the dignity of all human beings.86 If only a life filled with choices and their realization can have value, then most of us must lead lives with diminished value for we all labour under constraints, financial and otherwise.87 And for those in our midst who lack the ability or capacity to make choices and who depend on the choices and support of others to survive, do their lives lack value and dignity lives not worthy of living? While Sue Rodriguez may have been a competent 40-year old, Tracy Latimer, to whose case we now turn, was a severely disabled teenager whose dependence on others was total. (c) The Tragedy of Disability: Latimer

Tracy Latimer, twelve years old at the time of her death, suffered from a severe form of cerebral palsy that rendered her immobile. While under a serious disability, Tracy was not terminally ill. Her parents cared for her at home, but a permanent placement of Tracy in a local group home was readily available. Upon learning that Tracys doctors recommended further surgery to relieve pain associated with her dislocated hip, Tracys father, Robert Latimer, a farmer, decided to kill her. One Sunday, while the rest of the family was at church, Robert Latimer took Tracy to his pickup truck, seated her in the cab, and inserted a hose from the trucks exhaust pipe into the cab. She died from the carbon dioxide.88 The father initially told the police that Tracy had died in her sleep. When an autopsy showed otherwise, Robert Latimer was charged and convicted of second-degree murder. Under the provisions of the Criminal Code, a person convicted of second-degree murder is not eligible for parole for a minimum of ten years. Robert Latimer appealed both his conviction and sentence. Releasing its decision seven years after that in the Rodriguez case, a unanimous Supreme Court rejected Latimers argument that the defence of necessity was available in the circumstances to relieve him of any criminal liability as lacking any air of reality stating: Killing a person in order to relieve the suffering produced by a medically manageable physical or mental condition is not a proportionate response to the harm represented by the non-life threatening suffering resulting from that condition.89 This language, however, leaves open the door to the defence of necessity in cases where the pain-producing condition cannot be medically managed. It was in the context of considering Mr. Latimers defence of necessity the Court made its sole reference to the concept of human dignity: In considering the defence of necessity, we must remain aware of the need to respect the life, dignity and equality of all the individuals affected by the act in question. The fact that the victim in this case was disabled rather than able-

86 87

Pullman, supra,. para. 54. Pullman, 52 88 R. v. Latimer, [2001] 1 S.C.R. 3, para. 15. 89 Ibid., para. 41.

14 bodied does not affect our conclusion that the three requirements for the defence of necessity had no air of reality here.90 Latimer presented the Court with an opportunity to explain the meaning of human dignity in the circumstances of a severely disabled young teenager. While the Court ensured that the protection of the criminal law extended equally to the disabled, the Courts failure to develop the concept of the dignity of the disabled and the Courts lack of outrage about what Robert Latimer did to his daughter remain singular features of the judgment. In fact there are hints in the judgment that the Courts sympathies ultimately lay with Mr. Latimer. The Court described Tracy Latimers death as a tragedy91 and, in an unusual move, concluded its judgment by strongly hinting to the Executive that it consider exercising the royal prerogative of mercy: But the prerogative is a matter for the executive, not the courts. The executive will undoubtedly, if it chooses to consider the matter, examine all of the underlying circumstances surrounding the tragedy of Tracy Latimer that took place on October 24, 1993, some seven years ago. Since that time Mr. Latimer has undergone two trials and two appeals to the Court of Appeal of Saskatchewan and this Court, with attendant publicity and consequential agony for him and his family.92 Did the Court give with one hand and take back with the other? Some advocacy groups for the disabled thought so. As put by H. Archibald Kaiser, Although, some passages of the Latimer decision do have a strong resonance for disabled people, other parts actually permit an erosion of some of the limited hortatory value of the decision. The closing comments on the suitability of an application for executive clemency are particularly noteworthy for their retreatist tone and effects.93

Conclusion So what lessons may one draw from the use of the concept of human dignity by the Supreme Court of Canada? I would like to suggest five. First, the Court has forged a strong link between the interpretation of constitutional rights and the dignity of the human person, but the scope of the protection afforded by such rights depends upon the view of dignity held by a court - i.e. what is it about the human person that commands respect or consideration as worth? Which takes us to the second lesson to be drawn: to date the Supreme Court of Canada has employed a thin view of human dignity. With its emphasis on dignity as personal autonomy, the Court appears to regard dignity as
90 91

Ibid., para. 42 Ibid., para. 90 92 Ibid. 93 H. Archibald Kaiser, Latimer: Something Ominous is Happening in the World of Disabled People (2001), 39 Osgoode Hall Law Journal 555, at 558.

15 requiring something more than ones simple existence as a human being. Respect becomes more a function of what one can do, than simply the fact that one exists regardless of ones condition or abilities. While such a conception of dignity may work well in the case of the healthy and financially secure, an autonomy-centred conception of human dignity raises questions about the extent to which the very young, the very old and the infirm can gain the respect of their fellow humans and the resulting protection of constitutional rights. A thin notion of human dignity can create gaps in the protection offered by constitutional rights. If, as Weinrib argues, rights protection crystallizes human dignity, then a thin notion of dignity will result in those who lack the capacity to choose falling outside the protection of human rights. While Professor Weinrib may decry as macabre the judicial mindset of the Rodriguez majority for failing to respect informed, rational decisions to seek a comparatively painless death, instead of the particular death that nature offers, one can legitimately ask what protection human dignity founded on autonomy truly offers those who depend on others or who are suffering pain. Third, Canadian law currently regards the pain and suffering accompanying an illness as an affront to, or a violation of, human dignity. In his paper Professor Christopher Martin argued that the metaphor of a person bearing an illness more accurately captures the courage of a patient than does the metaphor of battling an illness. Canadian jurisprudence appears closed to the idea that bearing the pain and suffering of an illness can enhance ones dignity. Next, the Court has characterized as undignified the dependence of a patient during the course of an illness.94 Such a view places a low value on the role of family and friends during an illness. By contrast, Dr. Bruera stressed the centrality of the patients family to successful palliative care, and Dr. Sommers demonstrated how a patient can turn his dependence during an illness into a gift to those caring from him. Both Drs. Bruera and Sommers highlight the need to consider the social context in which a patient finds herself during a terminal illness, but Canadian law, by contrast, stresses the disconnectedness of the patient by its focus on autonomycentred dignity. Finally, unless dignity is viewed as present in a person regardless of his ability to choose or manifest choice and irrespective of his dependence on others, then the concept of human dignity may create temptations to diminish the legal protections offered to the dependent and the suffering. Instead of supporting rights to protect such persons, a thin concept of human dignity may prompt others to relieve such unfortunates of their undignified states by ushering them to an accelerated end. Canadian law has not yet reached that stage, but the Supreme Courts use of an autonomy-centred concept of human dignity offers a very shaky foundation on which to protect the vulnerable towards the ends of their lives.

94 It is worth noting that Judith A. Keene has criticized the link drawn between dignity and independence because it militates against claims to secure the extension of government benefits to the disadvantaged: Judith A. Keene, Developments in the Section 15 test, Sept 30/05, Ontario Bar Association 4th Annual Charter Conference, p. 27

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