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Competing rights: setting the stage for respectful dialogue

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We live in an increasingly diverse and complex society in which all citizens enjoy a variety of rights, freedoms and corresponding obligations. It is inevitable that conflicts between rights will arise.

The Canadian Charter of Rights and Freedoms, provincial human rights legislation and the courts recognize that rights have limits if they interfere in a significant way with other people’s rights. We know that no right is absolute, and we all have a shared obligation to search for solutions to reconcile competing rights on a case-by-case basis. The goal is to maximize enjoyment of rights on both sides. This starts with respectful dialogue, and sometimes requires legal steps as well.

It is often difficult to strike a balance between different rights – which is why we have supported public discussion and provided policy guidance. Our final goal was to create a Policy on competing human rights, which we launched in April 2012.

This policy outlines a series of steps that various sectors, organizations and individuals can take to deal with everyday situations of competing rights and avoid legal action. The policy may also give guidance to the Human Rights Tribunal of Ontario and the courts for addressing cases where litigation cannot be avoided.

The policy is the result of almost seven years of work that included consultation and discussion with key groups that tended to experience or litigate competing rights issues. Highlights of our background work included:

  • Releasing a research paper, “Balancing competing rights: towards an analytical framework” in 2005
  • Making a submission to the Canadian Human Rights Commission on section 13 of the Canadian Human Rights Act and the regulation of hate speech on the Internet in January 2009
  • Working with York University for Public Policy and the Law to hold a policy dialogue on competing human rights in March 2010
  • Publishing research papers from the policy dialogue in a special edition of Canadian Diversity in July 2010, and co-publishing an expanded volume of the papers in the coming months
  • Designing a draft framework for addressing competing rights, and testing it at a two-day workshop with representatives from Ontario’s education sector along with a cross section of rights holders in December 2010
  • Releasing a legal research paper, “The shadow of the law: surveying the case law dealing with competing rights claims” in early 2012.

The policy and the framework it contains are already being lauded as an important tool to help individuals, organizations and decision-makers effectively deal with some of the most challenging rights issues affecting Ontarians.

Applying the framework in the courts

The OHRC has intervened in relevant cases proposing its framework to help the courts examine competing rights questions. In N.S. v. M---D. S. & M---L. S. the courts are considering whether allowing a woman to wear a “niqab” veil as religious accommodation while testifying against the men alleged to have sexually assaulted her would interfere with their Charter right to full answer and defence. The Ontario courts’ decisions reflected the OHRC’s framework in their analysis. The issue is now before the Supreme Court of Canada.

We also intervened in Saskatchewan Human Rights Commission v. Whatcott at the Supreme Court of Canada. The issue here is whether freedom of expression and religion include the right to distribute pamphlets alleged to contain hate speech targeting gays and lesbians.

Decisions are expected later this year for both cases.

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