Competing human rights:
a daily reality in Canada
A growing challenge
Over the past few years, the OHRC heard from many individuals and organizations that were increasingly confronted by one person's human rights coming up against another's. This confirmed what we were seeing in our work.
Whenever people's basic human rights are in play, situations can be emotional, and can lead to tension and conflict within or between communities and groups. So our goal at the OHRC was to find a consistent and respectful way to resolve these issues.
We started this work knowing that we were not dealing with hypothetical questions, but real issues that were coming up in Ontario every day.
Even barbershops grapple with competing rights
Recent headlines tell us that competing rights are happening regularly, in all parts of our society. For example, a few weeks ago, “competing rights” was on the front page of the Toronto Star. The topic was a woman asked to get her hair cut in a “men’s” barbershop. The barbers said they could not cut her hair – that their religion said they could not.
In an instant, it seemed, everyone was talking about competing rights – and almost everyone had an opinion. Did religious rights trump the right for a woman to get a publicly offered service? Was this a big deal or a minor misunderstanding?
This case went to the Human Rights Tribunal of Ontario, and the parties resolved the situation in a mediated settlement in late February. Although the settlement details remain confidential, this case helped point out the growing need for a respectful way to look at and reconcile competing rights.
There are many more examples
There are many other current examples in Ontario, and across Canada. For instance, there is a lot of controversy about setting up Gay Straight Alliances in Ontario Catholic schools, when the school board believes this is contrary to Catholic teaching. And we have seen other creed-based issues such some groups being allowed to use secular public school space for religious events such as prayer.
We regularly see cases where rights based on creed, or religion, seem to conflict with rights based on sexual orientation, ranging from taking a same-sex date to the high school prom to a person losing her job. This happened in the Christian Horizons case, where a woman's sexual orientation went against the morality statement all employees had to sign.
There are even cases where accommodation needs based on the same Human Rights Code ground come into conflict. What do we do when a college professor's guide dog is affecting one of her students, who has a severe allergy to dogs? Both have the right to accommodation based on the ground of disability.
We know that often people sit down and work these things out themselves. In fact, most people and organizations are able to resolve their differences without having to go to a tribunal or the courts. But when that doesn't happen we are left with the question, "What do we do?"
A policy to help find the answers
The OHRC's new Policy on competing human rights is designed to help answer that question. It sets out a framework for dealing with competing rights in a way that both respects the people and respects the rights.
The OHRC has spent the past several years developing and then testing this framework. We have interviewed key stakeholders, done an extensive legal review, and invited people from many different perspectives to share their experiences and their ideas.
And once we designed a framework for balancing competing rights, we tested it with a cross-section of people ranging from educators to religious leaders. The final framework is a key element of the Policy on competing human rights.
What the policy does
This new policy is a tool that all organizations can use. It has been designed to help individuals and organizations deal with everyday competing rights situations. It sets out a step-by-step process for finding out if rights really are competing, and where they are, for dealing with them.
The goal is to provide a template to guide a respectful dialogue to resolve competing rights claims so we don't need to go to courts or Tribunals. But if it cannot be resolved by those involved, the policy will also serve as a resource for tribunals and the courts.
Taking the policy to the courts
OHRC has already used the framework in two interventions at the Supreme Court of Canada. In both cases, the OHRC recommended the Court use our framework.
In the first case, R. v. N.S., the Supreme Court was asked to consider a woman’s right to testify wearing a niqab vs. the accuseds’ right to “full answer and defence” – which in the accuseds’ view included being able to see their accuser’s face. The Court ruled that lower courts had to consider the individual circumstances of each case, and to follow a process that has many of the same steps outlined in our framework.
The second case, between William Whatcott and the Saskatchewan Human Rights Commission, involved a person’s right, based on freedom of expression and religion, to publish posters that allegedly promote hatred based on sexual orientation.
This week saw the resolution of the long-running case, at the Supreme Court. Although the case began in Saskatchewan, the Ontario Human Rights Commission intervened. Our hope was that, as in the niqab case, the Court would see value in a process for balancing rights.
It’s another good decision, a clear example of how to find that sometimes elusive balance of rights. The Court said the section of the Saskatchewan Human Rights Code banning language that “ridicules, belittles or otherwise affronts the dignity of any person or class of persons” is too broad. The message was – you don’t have the right to be protected from offensive language. But, said the Court, prohibiting “hate speech” is still legitimate. [The rules are different across Canada; in Ontario hate speech is only covered by criminal law.]
Searching for solutions can be challenging, controversial and sometimes unsatisfying to one side or the other. Issues can be resolved fairly quickly, like the barbershop case, or can take months or even years, like the Whatcott case.
Tribunals, courts and communities all face difficult decisions when navigating the rights that may come into conflict in today’s society. But even though the work may be hard, we all share the responsibility to try to get past our differences. This is much easier to do when we understand our own rights and obligations AND those of others – and when we talk about them.
The Policy on competing human rights offers a way to begin the dialogue, and to keep the doors open in today’s ever-changing world.
Video clip: Bridging between worlds is vital, profound
Susan Ursel, a partner with Ursel Phillips Fellows Hopkinson LLP, has played a prominent role in many leading cases involving sexual orientation and gender identity. She has also worked as an advocate for several religious organizations. In this video, she offers a personal account of the need to balance human rights based on sexual orientation and creed.
This video is part of the Living Rights Project. This virtual living library, designed to add a human face to human rights, was created to help celebrate the 50th anniversary of Ontario's Human Rights Code in 2012.