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Appendix B: Policy development process

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Over the past several years, the OHRC has taken many steps to advance understanding of how best to address competing rights. In 2005, the OHRC began the dialogue by releasing a research paper entitled, Balancing Conflicting Rights: Towards an Analytical Framework.[97] The paper provided the public with preliminary information that would promote discussion and further research without taking any firm policy positions.                                          

In 2007-08, the OHRC conducted a detailed literature review scanning relevant articles from the fields of law, philosophy, conflict resolution, and political science. This review revealed a wealth of information on how competing rights claims have been and might be looked at from a variety of perspectives. At the same time, case law in Canada and the United States has continued to develop and some preliminary analysis has been conducted. Very recently, the OHRC developed a competing rights case law review and made it available to the public.[98]

In many cases, the OHRC has also been actively involved in developing this case law. For example, the OHRC litigated Ontario (Human Rights Commission) and Heintz v. Christian Horizons[99], a case that dealt with religious rights of an organization and the rights of a lesbian employee. The OHRC has also intervened in relevant legal cases that examine competing rights questions. For example, the OHRC intervened before the Ontario Superior Court, the Ontario Court of Appeal and the Supreme Court of Canada in R. v. N.S.,[100] a case considering whether a woman wearing a niqab while testifying against the men alleged to have sexually assaulted her interferes with their right to make full answer and defence. The OHRC also intervened before the Supreme Court of Canada in Saskatchewan Human Rights Commission v. Whatcott[101], a case considering whether freedom of expression and religion include the right to distribute pamphlets alleged to contain hate speech targeting gays and lesbians.

The OHRC has also conducted one-on-one interviews with a number of individuals who were known to be very familiar with situations of competing rights claims from a variety of stakeholder, legal and academic perspectives. These interviews represented initial efforts to identify issues and concerns emerging from the perspectives of groups associated with the Code grounds of gender, creed, sexual orientation, and disability, while also helping to identify individuals and groups who could take part in future public consultation activity to ensure a complete discussion.

In March 2010, the OHRC partnered with York University’s Centre for Public Policy and the Law to hold a policy dialogue on competing human rights. Academics and researchers were recruited to develop articles within set parameters and to present these at the policy dialogue. These people represented different stakeholder groups and social and institutional perspectives. The Association of Canadian Studies and the University of British Columbia Press both published research papers from the policy dialogue.[102]

After this dialogue, OHRC staff developed a draft policy framework for reconciling competing human rights that aimed to address the issues raised by its preliminary consultation and research. In December 2010, the OHRC tested its draft framework at a two-day workshop with representatives from Ontario’s education sector and others. Over the past year, the OHRC has continued its dialogue with various groups and received positive feedback and constructive comment on its framework proposal. The framework represents the OHRC’s recommended approach to addressing competing rights situations and provides the foundation for this policy. The OHRC has also used this approach in its interventions before the courts in high-profile competing rights cases.[103]

[97] Supra, note 48.

[98] Supra, note 7.

[99] Christian Horizons, supra, note 15.

[100] Supra, note 21.

[101] Supra, note 79.

[102] The Association of Canadian Studies, Canadian Diversity, Vol. 8:3, Summer 2010. The UBC publication is forthcoming.

[103] Supra, notes 21 and 79.


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