As people better understand their rights and wish to exercise them, some of those rights may come into conflict with the rights of others. Depending on the circumstances, for example, the right to be free from discrimination based on creed or sexual orientation or gender may be at odds with each other or with other rights, laws and practices. Can a religious employer require an employee to sign a “morality pledge” not to engage in certain sexual activity? Can an accuser testify at the criminal trial of her accused wearing a niqab? How do you resolve a situation where a professor’s guide dog causes a severe allergic reaction in a student?
The Canadian Charter of Rights and Freedoms, provincial human rights legislation and the courts recognize that no rights are absolute and no one right is more important than another right. Our laws guarantee rights such as freedom of expression as well as protection against discrimination and harassment based on gender, creed (sincerely held religious beliefs as well as atheism or agnosticism), sexual orientation and disability, among other grounds. They require we give all rights equal consideration. The law also recognizes that rights have limits in some situations where they substantially interfere with the rights of others.
The courts have said we must go through a process on a case-by-case basis to search for solutions to reconcile competing rights and accommodate individuals and groups if possible. This search can be challenging, controversial, and sometimes dissatisfying to one side or the other. But it is a shared responsibility and made easier when we better understand the nature of one another’s rights and obligations and demonstrate mutual respect for the dignity and worth of all involved. Finding the best solution for maximizing enjoyment of rights takes dialogue and even debate.
The OHRC has been taking steps over the last number of years to advance understanding of how best to address competing rights.
- In 2005, we began the dialogue by releasing a research paper, Balancing Conflicting Rights: Towards an Analytical Framework
- In 2007-08, we conducted an extensive literature and case law review as well as one-on-one interviews with various stakeholders
- In March 2010, we partnered with York University’s Centre for Public Policy and the Law to hold a policy dialogue on competing human rights. The Association of Canadian Studies and the University of British Columbia Press both published research papers from the Policy Dialogue
- In December 2010, the OHRC tested its Process for addressing competing rights at a two-day workshop with representatives from Ontario’s education sector and others
- We are intervening in relevant cases proposing our framework to help the courts examine competing rights questions, for example:
- N.S. v. M---D. S. & M---L. S. considering whether allowing a woman to wear a “niqab” veil as religious accommodation while testifying against the men alleged to have sexually assaulted her interferes with their right to full answer and defence, and
- Saskatchewan Human Rights Commission v. Whatcott considering whether freedom of expression and religion include the right to distribute pamphlets alleged to contain hate speech targeting gays and lesbians
We are continuing our dialogue with various groups and receiving positive feedback on our framework proposal from all sides.
The framework will be the basis for a new OHRC policy anticipated for release next year. The policy will help various sectors, organizations and individuals deal with everyday situations of competing rights and avoid litigation. When necessary, the policy will also give guidance to the Human Rights Tribunal of Ontario and higher courts for addressing cases that are more difficult.
The policy will set out a process with a number of goals for dealing with competing rights claims:
- Dignity and respect for one another
- Mutual recognition of interests, rights and obligations
- Understanding the scope of rights and obligations
- Reducing stigma and power imbalances giving marginalized individuals and groups a voice
- Encouraging a spirit of cooperation and shared responsibility for finding agreeable solutions that maximize enjoyment of rights
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