Competing Human Rights eLearning Module 4
Hello and welcome to module 4.
As you’ve seen, every competing rights issue is different. We have to be able to analyze each situation to know what to do next, and the key legal principles will help us do that.
We’ll use a scenario as we go through the Key Legal Principles, to help with the analysis process.
Here’s the scenario:
Matt is a gay 17-year-old student attending a publicly funded Catholic high school. He wishes to go to the prom with a same-sex date. The prom is being held at a rental hall off school property.
The school principal and the School Board have said no, on the grounds that this would be endorsing conduct contrary to the Catholic Church’s teachings.
Matt believes that this is a violation of his human rights. He is considering seeking a court injunction because the prom is only weeks away.
As you go through this module, think about each key legal principle and how it might affect the outcome for Matt and the School Board in the scenario. When you’ve gone through the key legal principles, select the “Scenario Outcome” button below to see if your analysis matches the real-life outcome of a similar case.
Start by selecting each key legal principle for more information about it.
Number 1. No rights are absolute
The courts have consistently upheld the principle that no legal right is absolute. Everyone’s legal rights are limited by the rights and freedoms of others.
For example, the right to freedom of expression does not mean that someone has the right to make child pornography.
In our scenario, should Matt’s right to be free from discrimination on the ground of sexual orientation be limited by the religious rights of the Catholic School Board?
Should the Catholic School Board’s religious rights be limited by Matt’s rights?
Number 2. There is no hierarchy of rights
The Supreme Court of Canada has also been clear that there is no hierarchy of rights. All rights are equally deserving and no right is inherently superior to another right.
In the case of Matt and the School Board, do you think one right is more important than the other?
Number three. Rights may not extend as far as claimed.
When faced with a competing rights scenario, organizations must assess whether the rights extend as far as the parties claim. This means finding out if the right that is claimed is actually a legal right.
You need to ask two questions to find this out:
- Does the claim engage a genuine legal right? And
- When the evidence is examined, can the individual with the claim bring himself or herself within the asserted right?
For example, under human rights legislation “customer preference” or “business or economic interests” are not valid competing rights in cases involving discrimination.
If it is not clear that there is a legal basis to a claim, evidence may be needed to prove that the claim falls within the parameters of the right.
Do you think Matt’s right to be free from discrimination on the ground of sexual orientation is a legal right? Is the Catholic School Board’s religious right also a genuine legal right? Do both claims fall within the asserted rights?
Number four. Consider the full context, facts and constitutional values at stake
Once the competing issues are identified and described, it is critical to look at the rights in the full context. The courts have repeatedly held that human rights do not exist in a vacuum and must be examined in context to settle conflicts between them.
Constitutional and societal values must also be considered. The Charter, the Code and international treaties contain underlying constitutional and societal values. In some cases, what a person views as a violation of their rights may not be consistent with a society’s underlying values, and the claim will not be successful.
Consider the context of the case of Matt and the School Board. What are the important facts for each side’s claim? What constitutional and societal values could apply?
Number five. Look at the extent of interference
When rights appear to be in conflict, we must determine whether each right actually interferes with the other, and to what extent. If the interference is minor or trivial, the right is not likely to receive much protection, if any. Unless there is a substantial impact on the rights, there is no need to go further in the resolution process.
Also – speculation that a rights violation may happen is not enough – there must be evidence that the enjoyment of one right will have a harmful effect on another.
Do Matt’s rights significantly interfere with the rights of the Catholic School Board?
Do the rights of the School Board significantly interfere with Matt’s rights?
Is there any speculation involved, that one party’s rights may interfere with the rights of the other?
6. The core of a right is more protected than its periphery
A right is more likely to be restricted when exercising it would affect the “core” of another person’s rights.
Consider the example of a printing company that refused to print letterhead for a same-sex organization because of the owner’s religious beliefs. It was found that printing these materials for a same-sex organization did not affect the core of the printer’s rights because he was engaging in a business activity. However, being refused services would significantly affect the core of the same-sex organization’s rights.
If Matt cannot go to the prom with his same-sex date, will it affect the core of his right?
Would Matt and his boyfriend’s attendance at the prom impact the core of the School Board’s religious rights?
7. Respect the importance of both sets of rights
Where rights appear to be in conflict, both rights need to be respected as much as possible. Part of the reconciliation process may be to search for compromises to minimize the potential harm to each set of rights.
Still, there may be times where it is not possible to reconcile the rights in question. As a result, one right may be forced to give way to another.
Do you think one right should give way to another? If you do, then which one? Why? Is there anything that can be done to lessen the impact on the right that has to give way?
8. Defences found in legislation may restrict rights
Sometimes rights are restricted because of a defence to discrimination found in human rights legislation. These defences may reflect the competing rights of others. For example, one of these exceptions allows certain organizations that serve the interests of a particular group protected under the Code, to limit their membership to people who belong to that group. An example is a club that only allows older Italians to participate.
The scenario we used in this module was based on the 2002 Hall v. Powers case.
In Hall v. Powers, the Ontario Superior Court granted an injunction restraining the Durham Catholic District School Board from preventing Marc Hall’s attendance at his high school prom with his boyfriend. The Court was called on to balance Hall’s s.15 Charter right to be free from discrimination based on his sexual orientation with the right to freedom of religion in s. 2(a) of the Charter and the protection of denominational school rights in s. 93(1) of the Constitution Act, 1867. The Court noted a diversity of opinion within the Catholic community about how to approach homosexuality, and found that bringing a same-sex date to a prom doesn’t affect the essential nature of a Catholic school. The serious restrictions imposed on Mr. Hall’s rights were not defensible under section 1 of the Charter.
Marc Hall attended the prom with his boyfriend.
In the decision, the judge stated:
The evidence in this record clearly demonstrates the impact of stigmatization on gay men in terms of denial of self, personal rejection, discrimination and exposure to violence. In Ontario, this stigma has been ameliorated by the inclusion of sexual orientation in the Ontario Human Rights Code, as a prohibited ground. The cultural and social significance of a high school prom is well established. Being excluded from it constitutes a serious and irreparable injury to Mr. Hall as well as a serious affront to his dignity.
It seems to me that the effect of an injunction on the defendants and on other members of the Catholic faith community will be far less severe than the effect on Mr. Hall and on lesbian and gay students generally if an injunction is not granted. An injunction will not compel or restrain teachings within the school and will not restrain or compel any change or alteration to Roman Catholic beliefs. It seeks to restrain conduct and not beliefs. As such, it does not impair the defendants’ freedom of religion. Neither the defendants nor any other Canadian need adjust their beliefs regarding lesbian women and/or gay men as a consequence of the order sought.
Did you come to the same conclusions? To see the full Hall v. Powers decision, select the link on your screen.
I hope that the key legal principles in this module help you in the analysis and decision-making processes for competing rights issues.
Congratulations! You have now completed Module 4!
Competing Human Rights eLearning
Transcript at http://ohrc.on.ca/en/learning/elearning/competing-human-rights/part-4