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12 - Human dignity in Canadian constitutional law

Published online by Cambridge University Press:  05 February 2015

Aharon Barak
Aharon Barak
Affiliation:
Interdisciplinary Center Herzliya
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Summary

The lack of an independent right to human dignity

The term “human dignity” is not expressly mentioned in the Canadian Charter of Rights and Freedoms or in any other part of the constitution. The preamble to the Charter states:

Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law.

The preamble does not expand on this, nor does it determine anything regarding human dignity. Thus human dignity does not constitute an independent, freestanding right.

Rejection of human dignity as a derived (daughter) constitutional right

Does the Canadian Charter recognize human dignity as a constitutional right derived from one of the independent rights it has enshrined within? Is human dignity recognized as a daughter-right of the mother (framework)-right set out in section 7 of the Canadian Charter? That right determines:

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.

Should a daughter-right to human dignity not be derived from the right to life, liberty or security of the person? As we shall see, human dignity is a central constitutional value in the Canadian Charter. Should it not be said that fulfillment of that value in the framework of the constitutional right to life, liberty or security of the person establishes a daughter-right to human dignity?

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Chapter
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Human Dignity
The Constitutional Value and the Constitutional Right
 , pp. 209 - 224
Publisher: Cambridge University Press
Print publication year: 2015

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References

Sossin, Lorne, ‘The “Supremacy of God”, Human Dignity and the Charter of Rights and Freedoms’ (2003) 52 University of New Brunswick Law Journal227Google Scholar
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O’Connell, Rory, ‘The Role of Dignity in Equality Law: Lessons from Canada and South Africa’ (2008) 6 International Journal of Constitutional Law267CrossRefGoogle Scholar
Barak, Aharon, Proportionality: Constitutional Rights and their Limitations, Doron Kalir trans. (Cambridge University Press, 2012) 161CrossRefGoogle Scholar

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