Human dignity and economic integrity for persons with disabilities : a commentary on the Supreme Court's decisions in Granovsky and Martin

Over 20 years ago, disability activists vigorously advocated for the inclusion of mental and physical disability as protected grounds of discrimination in section 15 of the Canadian Charter of Rights and Freedoms. They believed that, by constitutionally guaranteeing a right to equality for persons with disabilities, the Charter could be used to radically and positively transform Canadian society for persons with disabilities. Now, more than 20 years later, disability advocates have reason to question these early assumptions about the effectiveness of Charter challenges in disability cases because of the intensifying hold of the “essential human dignity” test in equality rights jurisprudence. In 1999, the Supreme Court of Canada rendered an important decision on the interpretation of the equality rights guarantee in section 15(1) of the Charter. In Law v. Canada (Minister of Employment and Immigration), the Supreme Court unanimously adopted a three-pronged test for determining whether the section 15(1) right to equality has been infringed. Integral to this test is an evaluation of whether the alleged discriminatory treatment was detrimental to the claimant's “essential human dignity”. The following year, the Supreme Court applied this new Law test in a disability case: Granovsky v. Canada (Minister of Employment and Immigration). Regrettably, in Granovsky, the Supreme Court arrived at a restrictive interpretation of “essential human dignity” with respect to persons with disabilities, which hinged, in part, on an “economic model” of understanding disability. This paper begins by explaining the “economic model” as a theoretical conception of disability. The paper then outlines the section 15 methodology advanced in the Law decision and examines how the new “essential human dignity” criterion is used by the Supreme Court in assessing whether discrimination has occurred. The paper goes on to analyze the application and impact of the Law framework, in particular the problematic “essential human dignity” analysis, in two important disability discrimination cases: Granovsky and Martin. The paper argues that the Granovsky and Martin decisions are clear examples of how the “essential human dignity” test, as reflected in this current Charter jurisprudence, embodies an economic understanding of disability and hence perpetuates the economic inequality of persons with disabilities. The paper urges that greater attention must be accorded to protecting the economic integrity of persons with disabilities in equality rights litigation.