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In April 2012, the OHRC launched its Policy on competing human rights. This policy outlines steps that sectors, organizations and individuals can take to address everyday situations of competing rights and help to avoid the need for legal action. The policy may also give guidance to the HRTO and the courts to address cases where litigation cannot be avoided.
We are seeing many cases where rights protected by the Human Rights Code (the Code) or the Charter of Rights conflict. As our society changes, tensions can appear. Old ways brush up against new ones. Thankfully, more people are aware of their rights and are willing to protect and exercise those rights. But how do we do the balancing act?
The OHRC’s Policy on competing human rights offers a way forward. The starting point is the understanding, reinforced by courts and tribunals, that no right automatically trumps another. Context is critical. Are these real rights? What are the limits? Will adjusting the limits end the conflict? Is the impact substantial or trivial? There are many questions to ask, but the answers can guide us towards effective solutions where everybody’s rights are respected as much as possible.
At the heart of all of this analysis is something just as important as the legal language – respect. Recognizing differences and finding common ground are the best routes to resolving conflicts that will continue to happen.
In 2012, the media was full of stories about a Toronto woman who asked for a “businessman’s” haircut and was told the barbers could not serve her because of their religion. This case went to the HRTO where the parties reached a settlement after, as the owner of the shop said, “we got together and we had a good talk.”
The Supreme Court of Canada made another decision about rights in conflict in the Whatcott case. This case involved rights to religious freedom and freedom of expression competing with the rights of people to be free from discrimination and harassment because of sexual orientation (see more details below).
In human rights cases, there isn’t a “one size fits all” solution. When rights conflict, resolution may come though a process of respectful and open-minded dialogue. The OHRC’s new policy is a tool to help get the conversation started.
We thank our launch partners
With the help of several partners, we presented sessions on the new policy across Ontario. We thank the following organizations that worked with us:
- City of Ottawa
- Multicultural Council of Windsor and Essex County
- York University, Toronto
- Thunder Bay Multicultural Centre
Creed, trial rights:
R. v. N.S., 2012 SCC 72
The OHRC intervened in a case involving a Muslim woman who was asking the Supreme Court of Canada to confirm her right to wear a niqab (face veil) while testifying against two family members accused of sexually assaulting her as a child. The case engaged competing religious and gender equality rights on the one hand, and the right to make full answer and defence in a criminal trial on the other. The OHRC urged the Court to adopt a clear process for reconciling rights based on earlier case law and the new OHRC policy.
In its December 2012 majority decision, the Court set out a framework to be applied on a case-by-case basis. Applying this framework involves answering four questions:
- Would requiring the witness to remove the niqab while testifying interfere with her religious freedom?
- Would permitting the witness to wear the niqab while testifying create a serious risk to trial fairness?
- Is there a way to accommodate both rights and avoid the conflict between them?
- If no accommodation is possible, do the salutary effects of requiring the witness to remove the niqab outweigh the deleterious effects of doing so?
The Court’s framework is consistent with the OHRC’s Policy on competing human rights, which emphasizes the importance of considering competing rights on a case-by-case basis and calls for:
- Evaluating each set of apparently competing rights
- Searching for measures to allow the enjoyment of each set of rights
- If this is not possible, making a decision that considers the impact on each set of rights.
Religion, expression, sexual orientation:
Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11
The OHRC also intervened in this case at the Supreme Court of Canada, which involved balancing the right to freedom of expression and religion with equality rights. This case began at the Saskatchewan Human Rights Tribunal, which decided flyers Mr. Whatcott produced targeting gays and lesbians were hate speech and discriminatory.
The Supreme Court recognized that all rights are subject to reasonable limitations and that context is important when balancing competing rights. The decision also reinforced that there is no “hierarchy” of human rights grounds. The Court rejected a lower court’s finding that there should be a different analysis or threshold for hate speech involving sexual behaviours linked to sexual orientation as compared to hate speech aimed at race or religion.
In its unanimous decision, the Court found that the section of the Saskatchewan Human Rights Code that prohibits hate speech is constitutional, as long as it is only applied to expression of an unusual and extreme nature. This filters out expression which, while repugnant and offensive, does not incite the level of hatred that risks causing discrimination or other harmful effects. Two of Mr. Whatcott’s flyers were found to promote hatred based on sexual orientation, while two others were found not to meet the test.
The OHRC was pleased to see our approach to reconciling rights adopted in the decision. The Ontario Code does not have a hate speech provision like Saskatchewan’s. However, many of the points made by the Court apply to other types of competing rights situations.
So you know, one of my more surprising sub-specialties is I have done a lot of religious freedom cases. And I have come to have a deep regard and a deep respect for people who live their lives by religious or spiritual tenets, even when I don’t agree with them. And some of them actually live their lives by religious tenets that would probably condemn me for living as a lesbian…
And I think that kind of bridging between worlds is vital. It’s profound. It’s probably the most important thing we can do in this time because religion is both a great comfort to people and a great divider of people.
- Susan Ursel, Partner, Ursel Phillips Fellows Hopkinson LLP
Bridging between worlds is vital, profound