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The right to balanced rights

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February 28, 2013

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Opinion Editorial 
Globe and Mail

A recent decision by the Supreme Court of Canada was very, well, Canadian.

A young Muslim woman wanted to testify in court while wearing her niqab, saying her religious beliefs required it – and that she had the right to do so. The accused objected, claiming their right to a fair trial would be affected if they could not see the face of the witness. Which right trumps the other?

The Court was split. One judge suggested barring niqabs would effectively bar some women from the justice system. Two other judges felt niqabs should simply be banned in court.

But the majority said, in the best Canadian tradition, find a balance: “..clashes between rights should be approached by reconciling the rights through accommodation if possible, and in the end, if a conflict cannot be avoided, by case-by-case balancing.”

Finding the balance between competing rights is not the easy way. People tend to like clear-cut answers, especially when that answer is “I’m right and you’re wrong.”

At the Ontario Human Rights Commission we’ve seen more and more cases where rights protected by the Human Rights Code or the Charter of Rights conflict. It’s hardly surprising. 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 to do the balancing act?

We developed a way to help balance conflicting rights. The starting point was the understanding, reinforced by courts and tribunals, that no right automatically trumps another.

Context is (almost) everything. Are these real rights? What are the limits? Will adjusting the limits end the conflict? Is the impact substantial or trivial? Lots of questions, but the answers guide the process.

At the heart of all of this analysis is something just as important as the legal language – respect. Recognizing and celebrating differences and finding common ground are the best routes to resolution.

Last week we heard that the “barbershop case” in Toronto settled. A woman asked for a “businessman’s” haircut and was told the barbers could not serve her because of their religion. The case went to the Human Rights Tribunal where the parties agreed to a settlement after, as the owner of the shop said, “we got together and we had a good talk.”

Not every case is resolved by a good talk, but a process for addressing conflicting rights can work in the courts too. This week saw the resolution of the long-running Whatcott 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 under criminal law).

In human rights cases, there isn’t a “one size fits all” solution. When rights conflict resolution will come more easily though cooperation and a process of respectful and open-minded dialogue.

Barbara Hall, Chief Commissioner
Ontario Human Rights Commission