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 CANADA TO PROTECT HUMAN RIGHTS: 1)THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS, 2) THE CANADIAN HUMAN RIGHTS ACT, 3) THE CANADIAN HUMAN RIGHTS COMMISSION, AND 4) PROVINCIAL HUMAN RIGHTS LAWS AND LEGISLATION.

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 AND ABLE TO CONTRIBUTE FULLY TO THE DEVELOPMENT AND WELL-BEING OF THE COMMUNITY AND THE PROVINCE.

“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.]

1. WHO AGREES WITH BREASTFEEDING IN PUBLIC AND WHY?
2. WHO DOESN’T AGREE WITH BREASTFEEDING IN PUBLIC AND WHY?
3. WHAT ARE THE CONFLICTING RIGHTS HERE, IF ANY?
4. WHAT SOLUTION COULD BE DETERMINED BY SOCIETY TO RESOLVE THIS CONFLICT?

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 Canada. The purpose of CLGA is to celebrate the lives of lesbians and gay men and to ensure that theft records and histories are not lost or willfully erased. CLGA helps lesbians and gay men live “free, proud and positive lives”.

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 Ontario Human Rights Code guarantees all of us freedom from discrimination based on our religion (creed) and our sexual orientation.

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 Ontario, has a responsibility to abide by the Code. It therefore carries a public responsibility to protect its customers and potential customers against discrimination based on sexual orientation and all the other grounds when it offers its services. Writing about the apparent conflict of rights in the case, the Board Chair made the following conclusions:

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 Ontario, is to practise those beliefs in a manner that discriminates against lesbians and gays by denying them a service available to everyone else. He must respect the publicly-arrived-at community standards embodied in the Code. My order does not restrict [Scott’s] right to believe as he does, just the manner in which he may practise those beliefs.

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 CHRISTIAN TEACHERS COLLEGE BECAUSE IT BANDS GAY STUDENTS?

1. WHO AGREES THAT TEACHER COLLEGE HAS A RIGHT TO DECERTIFY A RELIGIOUS INSTITUTION THAT BANDS GAY STUDENTS AND WHY?
2. WHO DOESN’T AGREE THAT THERE IS A RIGHT TO DECERTIFY A RELIGIOUS INSTITUTION THAT BANDS GAY STUDENTS AND WHY?
3. WHAT ARE THE CONFLICTING RIGHTS HERE, IF ANY?
4. WHAT SOLUTION COULD BE DETERMINED BY SOCIETY TO RESOLVE THIS CONFLICT?

Trinity Western (2001) è TWU applied to the B.C. College of Teachers (“BCCT”) for permission to assume full responsibility for a teacher education program. TWU offers education within a ‘Christian context’ and requires students to sign a document outlining ‘Community Standards’ containing a prohibition on homosexual behaviour. The BCCT refused to approve the application because it was contrary to the public interest for BCCT to approve a teacher education program offered by a private institution that appears to follow discriminatory practices è erroneous conclusion that equality of rights on the basis of sexual orientation trump freedom of religion and association. They do not.

Meiorin è (1) Rational, (2) Good-Faith, (3) Legitimate Work Related Purpose

[British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union (B.C.G.S.E.U.) (Meiorin Grievance) [1999] 3 S.C.R. 3.]

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

• RACE—COMMON DESCENT OR EXTERNAL FEATURES SUCH AS SKIN COLOUR, HAIR TEXTURE, FACIAL CHARACTERISTICS

• ANCESTRY—FAMILY DESCENT

• PLACE OF ORIGIN—COUNTRY OR REGION

• COLOUR—ASSOCIATED WITH RACE

• 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 IMPAIRMENT AND RELIANCE ON A GUIDE DOG, WHEELCHAIR OR OTHER REMEDIAL DEVICE); LEARNING DISABILITY OR ANY DYSFUNCTION IN THE ABILITY TO UNDERSTAND OR USE SYMBOLS OR SPEECH, DEVELOPMENTAL DISABILITY, PSYCHIATRIC DISABILITY OR AN INJURY OR DISABILITY FOR WHICH BENEFITS WERE CLAIMED OR RECEIVED UNDER THE WORKPLACE SAFETY AND INSURANCE ACT, 1997

• AGE—L 8-65 YEARS (EMPLOYMENT); 16+ YEARS (ACCOMMODATION); 18+ YEARS (ALL OTHER AREAS)

• 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 ARE SOME EXCEPTIONS TO THESE PROHIBITED GROUNDS IN THE AREA OF EMPLOYMENT, SUCH AS:

• 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, ETC, MAY CHOOSE TO EMPLOY ONLY MEMBERS OF THAT GROUP;

• AN EMPLOYER MAY CHOOSE TO HIRE OR NOT HIRE, OR TO PROMOTE OR NOT PROMOTE HIS OR HER OWN SPOUSE, CHILD OR PARENT OR THE SPOUSE, CHILD OR PARENT OF AN EMPLOYEE,

• AN EMPLOYER MAY DISCRIMINATE ON THE BASIS OF AGE, SEX, RECORD OF OFFENCES OR MARITAL STATUS IF THESE ARE GENUINE REQUIREMENTS OF THE JOB. FOR EXAMPLE, A SHELTER FOR BATTERED WOMEN MAY CHOOSE TO HIRE ONLY WOMEN AS COUNSELLORS; A CLUB MAY ONLY HIRE MALE ATTENDANTS TO WORK IN THE MEN’S LOCKER ROOM; OR A CHILD CARE FACILITY MAY REFUSE TO HIRE SOMEONE CONVICTED OF CHILD MOLESTING ON THE GROUND THAT THE HIRING WOULD POSE A SAFETY RISK TO THE CHILDREN. IN SUCH INSTANCES, THE EMPLOYER MUST CONSIDER WHETHER ANY ACCOMMODATION CAN BE MADE TO ENABLE THAT PERSON TO WORK IN THE POSITION.