In this issue:
discrimination on the grounds of physical disability; Charter of Rights and Freedoms, s.15(1); subjectivity and objectivity in the test for discrimination; the meaning of "human dignity"
The appellant Granovsky suffered a back injury in a work-related accident in 1980. At the time, he was assessed as being temporarily totally disabled and was expected to recover fully. He returned to the work force and thereafter was employed intermittently. He later claimed his back condition to be degenerative, and that since 1993 he had been suffering from a permanent disability. When he applied to the Canada Pension Plan (hereafter, CPP) for a disability pension he was refused on the basis that he had not contributed to the CPP over a sufficient number of years to qualify. He acknowledged that he had not contributed to the CPP in the requisite number of years, having only contributed one year out of the 10-year contribution period, but explained that he had been prevented from both working and contributing to the plan because of his degenerative back condition.
The CPP makes an exception for individuals, who, because of severe and permanent disabilities, are unable to make contributions to the plan for the number of years required to qualify for a disability pension. Granovsky was judged by the Pension Appeals Board not to have suffered from a permanent disability, and therefore could not take advantage of the workforce "drop-out" contribution exemption made available to individuals suffering from permanent disability. The CPP tribunal refused Granovsky's application in part because he had an insufficient "recent attachment" to the workforce. Granovsky challenged that ruling on the grounds that the CPP, by failing to take into account that people with temporary disabilities may be unable to make contributions for the minimum required period, denies equal treatment to people with temporary disabilities, contrary to s.15(1) of the Charter. Granovsky's appeal failed at both the Pension Appeals Board and the Federal Court of Appeal. He then appealed to the Supreme Court of Canada.
What does it mean to assess discrimination from the claimant's perspective? What constitutes the violation of "essential human dignity" within the test for discriminatory treatment under s.15(1) of the Charter?
The appeal is dismissed. The CPP does not infringe s.15(1) of the Charter.
Justice Binnie, writing for the unanimous Court, distinguishes between three aspects of disability: (1) an individual's physical or mental impairment (e.g. blindness); (2) an individual's functional limitations (i.e. the specific physical or mental functions which the individual in unable to perform because of the impairment); and (3) the "socially constructed handicap", which is the social hindrance to disabled individuals which results from their inability to carry out those tasks which, given the way social life has been organized, have become necessary for participating in everyday life. Were other arrangements made, the socially constructed handicap might not exist. This third aspect focuses not so much on the disability, but on the government's response to it—whether it makes too much or too little of functional limitations.
Not every physical impairment will ultimately result in functional limitations; the Court gives the example of short-sighted individuals who use corrective eyeglasses. Sometimes the difficulties faced by persons with disabilities are not the inevitable result of the physical impairment or functional limitation, but rather are caused by policies which misconceive the significance of the functional limitations and either make too much or too little of a person's inabilities. An example of such "socially constructed handicaps" is drawn from the Grismer Esate case (1999), in which the claimant, whose eyesight was impaired as a result of a stroke, was assumed by the Superintendent of Motor Vehicles to have a functional limitation which ought to disqualify him from a driver's license. The Court held that the claimant was entitled to an individual test to determine whether in fact the assumed functional limitation existed.
The focus of s.15(1) equality analysis into the treatment of persons with disabilities is on the this third aspect of disability—the legislative or administrative response of the state to persons with disabilities. The equality test set out by the Court in Law v. Canada (see LexView 28.0), provides for s.15(1) analysis to proceed on the basis of "three broad inquiries". The Court must first ask whether the impugned law either draws a distinction between the claimant and others on the basis of some personal characteristic or fails to take into account the claimant's already disadvantaged position within society, resulting in substantively different treatment between the claimant and others. Secondly, the Court must ask whether this differential treatment is based on one or more of the grounds of discrimination enumerated in s.15(1) or the grounds analogous to them. Finally, the Court must ask whether the differential treatment discriminates in a way which brings into play the purpose of s.15(1), i.e. remedying prejudice, stereotype, and historical disadvantage.
Applying the three-step approach from Law v. Canada to the facts of this case, Justice Binnie concluded first of all that Granovsky had established a denial of equal benefit of the law. The CPP did not recognize the barrier to the pension benefit which was caused by his temporary disability; it did not accommodate his inability to work and contribute to the Plan in the same manner as it did for those individuals who suffered from equally severe disabilities which were judged to be permanent rather than temporary. Secondly, Justice Binnie concluded that the basis of the differential treatment between Granovsky and permanently disabled workers is disability, which is an enumerated ground of discrimination.
The bulk of the Court's analysis was devoted to the third branch of inquiry—the inquiry into whether the disadvantage suffered by the claimant amounts to discrimination under the Charter. It is possible that distinctions drawn on enumerated or analogous grounds will be non-discriminatory. To establish s.15(1) discrimination, the claimant must show that the context surrounding the legislative distinction in question attracts the purpose of s.15(1)—namely to counteract prejudice, stereotype, and historical disadvantage. It is unlikely, the Court said, that differential treatment will constitute discrimination unless that treatment violates human dignity by promoting the view that persons with disabilities are "less worthy of recognition or value as human beings or as members of Canadian society."
To determine whether this third stage of the s.15(1) analysis is satisfied, the Court will consider background contextual factors, such as whether the claimant suffers from stereotyping, some pre-existing disadvantage, or vulnerability. None of these factors were found to be operative in Granovsky's case; in particular, the CPP did not stereotype him by ignoring his actual abilities. Neither can it be said that people with temporary disabilities constitute a disadvantaged group similar to those other groups which have received s.15 protection.
The Court repeated the injunction it formulated in Law v. Canada that courts must consider the effect of differential treatment from the perspective of the claimant: "(t)he focus must always remain upon the central question of whether, viewed from the perspective of the claimant, the differential treatment imposed by the legislation has the effect of violating essential human dignity." But, Binnie J. carried on to explain that in considering discriminatory impact form the "perspective of the claimant", judges are not to use a purely subjective test. The claimant wishing to bring himself or herself within the protection of s.15(1) must establish that "from the perspective of the hypothetical 'reasonable' individual who shares the appellant's attributes and who is dispassionate and fully apprised of the relevant circumstances—his dignity or legitimate aspirations to human self-fulfilment have been engaged."
The Court concluded that the government policy to benefit the permanently-disabled but not the comparatively advantaged temporarily-disabled, could not be discriminatory because a reasonable person in Granovsky's shoes would not think that the government in so acting had demeaned his sense of worth or dignity as a human being.
This case presents the Court with its first opportunity to apply the Law test for discrimination in the context of disability (a summary of Law v. Canada [Minister of Employment and Immigration] and our analysis of that decision can be found in LexView 28.0). The Court uses this opportunity to further explain what it means by "human dignity" and to clarify the degree of subjectivity and objectivity in the process of establishing whether the government has acted in a way which demeans a person's dignity.
In Law v. Canada, the foundation of the Charter right to equality is located in "essential human dignity". Granovsky reaffirms that respect for human dignity is central to the interpretation of s.15(1). Broadly speaking, this is a sound approach to understanding equality. In the face of the many obvious ways in which individuals are unequal (e.g. physical and mental abilities, social status, wealth), equality must rest on something common to all which is not contingent on widely differing abilities and traits; in the words of a writer quoted approvingly by Justice Binnie, equality has to do with the "similarities that transcend" the many differences among persons. The transcendent similarity that grounds equality is the common human dignity born of a common human nature. Human dignity is a fact about persons. Universal and inalienable, it is not a status that can be granted, removed, or otherwise impaired.
Of course, some deny that all persons are equal in human dignity, without regard to their potential or presently realized mental or physical abilities. The philosopher Peter Singer, now of Princeton University, is a prominent contemporary example of those who would ascribe equal dignity only to a limited class of individuals who pass some (necessarily arbitrary) standard of mental or physical ability. This non-universal, "select" conception of human dignity excludes from common concern and protection those judged to have insufficient powers of reasoning (whether by reason of infancy or organic malfunction, be it by trauma, disease, or simple decline). Canadian law opposes any "means tested" conception of human dignity. This is evident not only in the case law interpreting the Charter, but also (for example) in the criminal prohibitions against murder, assault, and theft (to give a few examples), which are intended to protect all, regardless of their abilities. Law and legal authority are instituted for the service of all persons equally, and thus it is appropriate that our laws are permeated by this basic fact of equal human dignity.
Certain statements made by the Court in Law v. Canada unfortunately confuse the rational, unalterable status of human dignity with the emotional response—the indignity—of receiving unfair treatment. These two concepts, one a rational basis for justice, the other an emotional response which may or may not be justified in the circumstances, must be kept distinct. When Iacobucci J. states that "(h)uman dignity is harmed by unfair treatment .", it would have been more accurate to say that persons are harmed by unfair treatment, e.g. when they are treated as though they are of less value than others—treated as though they lack this common human dignity.
More seriously misleading are the statements that: "[h]uman dignity means that an individual or group feels self-respect and self-worth"; and "[h]uman dignity—concerns the manner in which a person legitimately feels when confronted with a particular law". Such statements confuse the status of inalienable human dignity with the feeling of offence (which may or may not be present) at not being given one's due. The mere feeling that one's dignity has been disregarded does not, of course, mean that it has been. The judgment, read as a whole, does not propose anything so crude. The ultimate purpose of the enquiry is not to determine which feelings or emotions are present, but whether it is truly the case (determined through the exercise of reason) that a person has not received the treatment that he or she is due according to justice.
It would thus be inaccurate to describe the test in Law v. Canada as entirely subjective, much less radically subjective. A radically subjectivist account of human dignity (i.e. one defined wholly in terms of an individual's feelings of self-worth) would require the state to show equal respect uncritically for every self-perception and plan for self-fulfilment in order to avoid injuring individuals' (possibly unreasonable) feelings of self-respect. Such an account would, of course, severely limit a government's ability to make laws and policies for the common good. It would require the government to respect almost any chosen way of life, no matter how degrading, provided that the self-understanding could be brought within the enumerated or analogous grounds of discrimination under s.15(1).
But the test is, as the Court rightly insisted, subjective and objective. Unfortunately, it is easy to overstate the significance of the subjective aspect of the test, given the misleading figurative speech used to describe human dignity, and the generous amount of text exploring the subjective component—disproportionate to the actual work that the subjective component does in the discrimination test. The many paragraphs explaining the significance of the "claimant's perspective" distract from the important qualification that that perspective must be "reasonable".
Granovsky v. Canada, while not setting out any new test for discrimination, makes an effort to remove the subjectivist distraction with the result that the reasoning required by the test is brought more clearly into view. Justice Binnie makes clear that while the courts must use the claimant's perspective in determining whether the differential treatment in question "violates" human dignity (i.e. treats the claimant as though he or she is of less importance than others), this is an analytical device to assist the judge in determining whether the treatment received by the claimant truly treats the claimant as an equal in dignity. Assessing whether a person's human dignity has been disregarded, or "legitimate aspirations to human self-fulfilment" have been impaired, is to be settled by reason rather than feelings. And it requires that the courts employ some reasoned understanding of the plausible range of human fulfilment—the truly worthwhile. The claimant is required to show that "from the perspective of a hypothetical 'reasonable' individual who shares the [claimant's] attributes and who is dispassionate and fully apprised of the relevant circumstances—his dignity or legitimate aspirations to human self-fulfilment have been engaged."
We would argue that part of the "relevant circumstances" of which the Court expects the hypothetical reasonable individual to be aware, are the principles of political morality that there are legitimate and illegitimate aspirations to self-fulfilment, and that it is not incumbent on a government to accept all self-understandings uncritically. Granovsky v. Canada does not assist the individual who, for example, wishes to argue that the long-standing criminal prohibition against assisting suicide violates a governmental obligation to respect the self-fulfilment sought through exercising suicidal choices. This is so regardless of the claimant's feelings about the criminal prohibition and the value of his or her life. Similarly, the pedophile should not be able to draw on Granovsky to support a claim that the criminalization of the possession of child pornography violates s.15(1) by frustrating his aspirations to self-fulfilment on the grounds of sexual orientation. A government can disagree with the paths chosen by individuals—even to the extent of criminalizing some of their desired actions—without treating them as though they lack human dignity. In fact, it is precisely because of the belief that they do have this human dignity common to all that the state sees fit to discourage and sometimes prohibit choices that are incompatible with any sound vision of a good life.
Our concern with Law v. Canada was that a concern for the psychological self-acceptance of claimants could lead the Court to develop its equality jurisprudence in a way which would prevent (or discourage) governments from acting with a view to promoting the good and discouraging corrosive and valueless choices. In Granovsky v. Canada, the Court has gone some distance to allaying these concerns by reaching (though imperfectly) towards a more solid grounding for human dignity. What remains is for the Court to articulate specifically what it has stated implicitly or partially on other occasions: that s.15(1) of the Charter does not prohibit governments from making laws and enacting policies which are not neutral about the good. Rather, government remains entitled to act on the basis of a reasoned conclusion about what is truly good, and thus promote some significant choices and commitments as objectively good, discourage (and sometimes prohibit completely) other choices as truly worthless and damaging.
This issue of LexView was researched and written by:
Iain T. Benson, B.A. (Hons.), M.A. (Cantab.), LL.B. of the British Columbia Bar
Brad Miller, B.Comm., LL.B, LL.M. (magna cum laude) of the British Columbia Bar.
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Copyright © 2010 Iain Benson and Brad Miller
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