EXERCISES IN COMPETING HUMAN RIGHTS
WHAT ARE HUMAN RIGHTS [?] è
[ONE DEFINITION] RIGHTS TO WHICH PEOPLE ARE ENTITLED SIMPLY BECAUSE THEY ARE
HUMAN BEINGS, REGARDLESS OF THEIR NATIONALITY, RACE, ETHNICITY, GENDER, OR
RELIGION.
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ALL DEFINITIONS IMPLY è
THE RECOGNITION OF THE DIGNITY AND WORTH OF EVERY PERSON è
THIS
ALSO AXIOMATICALLY IMPLIES THE ABILITY OF PEOPLE TO CONTRIBUTE TO THEIR COMMUNITY
DEVELOPMENT AND WELL BEING è THIS FURTHER IMPLIES
[FOR ONE THING] THAT ALL INDIVIDUAL CLAIMS TO RIGHTS HAVE TO BE IN A
RELATION TO COMMUNITY WELL-BEING
SINCE SIGNING THE UNIVERSAL
DECLARATION OF HUMAN RIGHTS IN 1948, THE CANADIAN GOVERNMENT HAS ATTEMPTED TO
MAKE UNIVERSAL HUMAN RIGHTS A PART OF CANADIAN LAW. THERE ARE CURRENTLY FOUR
KEY MECHANISMS IN
PREAMBLE [GO
TO] AND IN THE ESTABLISHED STATUTORY INTERPRETIVE FRAMEWORK – EMBODIES THE
VALUES UNDERLYING THE CODE AND HUMAN RIGHTS LEGISLATION IN GENERAL. THESE
VALUES MAKE UP THE GENERAL FRAMEWORK IN WHICH BALANCING OCCURS. FOUR KEY
PRINCIPLES EMERGE FROM THE PREAMBLE:
1. RECOGNITION OF THE DIGNITY AND WORTH OF EVERY
PERSON;
2. PROVISION OF EQUAL RIGHTS AND OPPORTUNITIES
WITHOUT DISCRIMINATION THAT IS CONTRARY TO LAW;
3. CREATION OF A CLIMATE OF UNDERSTANDING AND
MUTUAL RESPECT, SO THAT;
4.EACH PERSON FEELS A PART OF THE
COMMUNITY
“INHERENT IN THESE VALUES IS A BALANCING
OF INDIVIDUAL AND GROUP RIGHTS. THE PREAMBLE PUTS FORTH A VISION OF RELATIONAL
RIGHTS IN WHICH THE EQUALITY OF EACH PERSON EXISTS ALONGSIDE COMMUNITY
DEVELOPMENT AND WELL-BEING è PRINCIPLE: BALANCING CONFLICTING RIGHTS
I) BREASTFEEDING IN
PUBLIC
[A CONFLICT BETWEEN FREEDOM OF EXPRESSION AND FREEDOM
FROM DISCRIMINATION BASED ON SEX.]
PREAMBLE:
At first
glance, then, there appears to be a conflict between freedom of expression and
freedom from discrimination based on sex. But a careful consideration of
whether or not the rights claims are appropriately characterized tells a
different story. Court and Tribunal decisions have clearly established a
woman’s right to breastfeed in public4. Importantly, these decisions have
concluded that actions which prevent a woman from breastfeeding in public are
discriminatory. These precedents mean that in the absence of a compelling,
equally valid discrimination claim, a woman has an unqualified right to
breastfeed in public. The freedom of expression claim is not a valid
counter-claim because there is no established positive legal right to
individual preference. That is, you may air your personal preferences about
a woman breastfeeding in public, but you may not use those preferences to
compel a woman to stop an activity that is already recognized as an established
equality right. In this instance, what amounts to a community standards test
for discrimination masquerades as freedom of expression claim.5 Once this guise is exposed and the actual driving force of
the complaint is revealed, there is no need to engage in the task of balancing.
II) SEXUAL ORIENTATION
è DOES A PUBLISHER HAVE
THE RIGHT TO DENY THE PUBLICATION OF “GAY LITERATURE” ON RELIGIOUS GROUNDS?
[A CONFLICT BETWEEN THE RIGHT OF
RELIGIOUS FREEDOM AND FREEDOM FROM DISCRIMINATION ON THE GROUND OF SEXUAL
ORIENTATION]
BRILLINGER V. BROCKIE (2002)
è
RAY BRILLINGER, IN HIS CAPACITY AS PRESIDENT OF THE CANADIAN LESBIAN AND GAY
ARCHIVES, ATTENDED THE OFFICES OF IMAGING EXCELLENCE INC, A
COMMERCIAL PRINTING COMPANY OWNED AND OPERATED BY SCOTT BROCKIE, TO ASK IMAGING
TO PRINT BLANK LETTERHEAD AND ENVELOPES FOR ARCHIVES’ GENERAL CORRESPONDENCE
AND SOME BUSINESS CARDS FOR ITS OFFICERS.
QUESTIONS FOR GROUP DISCUSSION
1. WHAT RIGHTS ARE INVOLVED IN THIS CASE?
WHOSE RIGHTS, IF ANY, DO YOU THINK SHOULD TAKE PRECEDENCE?
2. IF YOU PICK ONE, HOW DO YOU THINK THAT
THE RIGHTS OF THE OTHER SHOULD BE PROTECTED?
3. WHAT WILL HAPPEN TO THE PURPOSE OF THE
CODE IF RIGHTS CLAIMED BY CERTAIN GROUPS RESULTS IN VIOLATIONS OF THE RIGHTS OF
OTHERS?
Ray was the President of an
organization called the Canadian Lesbian and Gay Archives (CLGA). The Archives
is a corporation whose mandate is to acquire, preserve, organize and give
public access to information, records and artifacts by and about lesbians and
gay men in
As the President of COLA, Ray
approached Scott, who was the President and chief salesperson of a printing
company, to obtain a quote for printing business cards, letterhead and
envelopes for CLGA.
At first, Scott was willing to
provide the quote and carry out the service until he learned that Ray was
requesting it on behalf of a lesbian and gay organization. Scott then refused.
He told Ray that he was a religious person and that he had the deeply held
conviction that homosexuality is wrong and he would not work with an
organization that promoted the issues of gays and lesbians. He gave Ray the
names and numbers of several other printers in the same town that he could try
to get the work done. As a result of this refusal to do this job, CLGA was
required to spend extra time trying to find another printer and it took a lot
longer to complete the work.
Ray made a complaint against Scott
and his printing company to the Ontario Human Rights Commission on behalf of
himself and CLGA. This complaint was in the area of services and on the ground
of sexual orientation. The case is based on one known as Brillinger v. Brockie.
This situation illustrates a
particularly difficult problem that can come up when dealing with human rights.
In cases like this, the rights of one person appear to be in conflict with
the rights of another. The Charter of Rights and Freedoms guarantees all
Canadians the right to freedom of religion and freedom of thought, belief,
opinion and expression. But, in Section 1, it places a limit on the exercise of
such freedoms making it “subject only to such reasonable limits prescribed by
law as can be demonstrably justified in a free and democratic society.” The
It is important to analyze
situations like this very carefully. At first glance, it would seem that
Scott’s rights to his Charter freedoms are being overridden and he is being
denied the right to practice his religion as he sees fit. In its
consideration of the complaint, the Board of Inquiry chose to look separately
at whether Scott had actually discriminated against Ray and CLGA and at what
the remedy should be, if any In its first decision, the Board said that Scott
had discriminated against Ray and CLGA as the service was denied because of the
ground of sexual orientation.
The Board then turned its attention
to the issue of what the remedy should be. Keep in mind that the object of
the Code is to provide a remedy in order to compensate for the discrimination,
not to punish the discriminator. The respondents argued that imposing a
remedy under the Human Rights Code would breach Scott’s constitutional right to
freedom of conscience and religion. At the hearing, Scott testified that he
tried to live his life according to his religious principles, one of which was
against homosexuality. Providing printing services to a lesbian and gay
organization would, therefore, be in direct opposition to his beliefs.
The Ontario Human Rights Commission
and the complainants agreed that imposing a remedial order requiring Scott to
do business with CLGA would infringe Scott’s right to freedom of religion. But
the Commission said that this infringement was justifiable as a reasonable
limit on that right under Section 1 of the Canadian Charter of Rights and
Freedoms. It then became necessary to balance the competing rights of Ray and
the Archives to be free from discrimination based on sexual orientation, with
Scott’s freedom of conscience and religion as guaranteed by the Charter.
The printing company, operating as a business in
While it may be
difficult to see any “balance” in an imposition of a penalty against [Scott]
and [the printing company], in fact nothing ... will prevent [Scott] from
continuing to hold, and practise, his religious
beliefs. [Scott] remains free to hold his religious beliefs and to practise them in his home, and in his [religious]
community. He is free to espouse those beliefs and to educate others as to
them. He remains free to try to persuade elected representatives, through his
involvement in the democratic process, that the Code protections currently
granted to the lesbian and gay community, are wrong.
What he is not free to do, when he enters the public marketplace and
offers services to the public in
The
Board of Inquiry ordered Scott and the printing company to provide the printing
services that they offer to the general public to lesbians, gay men and their
organizations. The Board of Inquiry also ordered the respondents to pay $5,000
to the complainants for the damage to dignity and self-respect caused by the
discrimination.
III) FREEDOM OF RELIGION
è DOES A COLLEGE OF
TEACHERS HAVE THE RIGHT TO DE-CERTIFY A
Trinity Western (2001) è
TWU applied to the
Meiorin
è
(1) Rational, (2) Good-Faith, (3) Legitimate Work Related Purpose
[
IDENTIFYING WHEN THERE IS NO CONFLICT
OF RIGHTS
MANY DISPUTES IN WHICH THERE APPEARS TO BE
A CONFLICT OF RIGHTS WILL BE REVEALED, UPON CLOSER EXAMINATION, TO BE
SITUATIONS IN WHICH THE RESOLUTION OF THE DISPUTE IS NOT CONTINGENT UPON THE
COMPLEX PROCESS OF BALANCING. GIVEN THE DIFFICULTIES ASSOCIATED WITH THE
BALANCING PROCESS, IT IS IMPERATIVE THAT ONLY ACTUAL CONFLICTS OF RIGHTS ARE
APPROACHED AS BALANCING TASKS. THIS SECTION OF THE PAPER WILL BRIEFLY OUTLINE
FACTORS FOR ASSESSING THE EXTENT TO WHICH COMPETING RIGHTS ARE THE REAL ISSUE
AT STAKE. IN PARTICULAR, BEFORE PROCEEDING TO THE TASK OF BALANCING, CAREFUL
CONSIDERATION MUST BE GIVEN TO THREE KEY QUESTIONS:
1. ARE THE RIGHTS CLAIMS CHARACTERIZED
APPROPRIATELY?
2. ARE
VALID, LEGALLY RECOGNIZED RIGHTS AT STAKE?
3. ARE THE NEEDS OF BOTH PARTIES TRULY IN
CONFLICT? [IF 1 & 2 THEN EXPLORE SOLUTIONS FOR ACCOMMODATING BOTH]
THE SIXTEEN PROHIBITED GROUNDS FOR DISCRIMINATION
•
• ANCESTRY—FAMILY DESCENT
• PLACE OF ORIGIN—COUNTRY OR
REGION
• COLOUR—ASSOCIATED WITH
• ETHNIC
ORIGIN—SOCIAL, CULTURAL OR RELIGIOUS PRACTICES DRAWN FROM A COMMON PAST
• CITIZENSHIP—~MEMBERSHIP IN A
STATE OR NATION
• CREED—RELIGION OR FAITH
• SEX—DISCRIMINATION
CAN BE SEXUAL IN NATURE, OR BECAUSE OF GENDER OR PREGNANCY. THIS ALSO
INCLUDES THE RIGHT TO BREASTFEED
IN PUBLIC AREAS OR IN THE WORKPLACE. SEX ALSO INCLUDES THE NOTION OF GENDER
IDENTITY
• SEXUAL
ORIENTATION—INCLUDES LESBIAN, GAY, BISEXUAL OR HETEROSEXUAL
• HANDICAP—
{BROAD CATEGORY} PHYSICAL DISABILITY OR DISFIGUREMENT CAUSED BY INJURY,
ILLNESS OR BIRTH DEFECT (INCLUDES DIABETES, EPILEPSY, PARALYSIS,
AMPUTATION, LACK OF PHYSICAL COORDINATION, BLINDNESS OR VISUAL IMPAIRMENT,
DEAFNESS OR HEARING IMPAIRMENT, MUTENESS OR SPEECH IMPAIR
•
• MARITAL
STATUS—INCLUDING COHABITATION, WIDOWHOOD, SEPARATION
• FAMILY STATUS—THE PARENT/CHILD
RELATIONSHIP
• SAME
SEX PARTNERSHIP STATUS—THE STATUS OF LIVING WITH A PERSON OF THE SAME
SEX IN A CONJUGAL RELATIONSHIP OUTSIDE
MARRIAGE.
• RECORD
OF OFFENCES—PROVINCIAL OFFENCES OR PARDONED FEDERAL OFFENCES (IN
EMPLOYMENT)
• RECEIPT OF PUBLIC ASSISTANCE—IN
HOUSING ONLY
EXCEPTIONS TO THE PROHIBITED GROUNDS{?}
THERE
• AN ORGANIZATION
THAT SERVES A GROUP PROTECTED BY THE CODE, SUCH AS RELIGIOUS,
EDUCATIONAL OR SOCIAL INSTITUTIONS SERVING ETHNIC GROUPS, PEOPLE WITH
DISABILITIES, RELIGIOUS GROUPS,
• AN EMPLOYER
• AN EMPLOYER