Dignity and Equality: Law's Reasonable Claimant and Human Dignity under Section 15.

摘要

The concept of human dignity is an essential and inextricable element of equality rights. In Law v. Canada the Supreme Court united around the concept of dignity to determine section 15(1) cases. This test was abandoned in R v. Kapp, deciding that dignity was too abstract and subjective. This paper argues that the problems with the Law test did not come from the concept of dignity itself, but rather from the reasonable claimant test which focused on subjective feelings and legislative intentions. This paper presents an alternative conception of human dignity, which proposes that substantive equality should be a matter of equal concern based on two principles of human dignity: the principle of equal intrinsic value and the principle of personal responsibility. The analysis must be truly contextual, focused on the objective consequences of discrimination and the circumstances that create and foster inequality.