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Follow us on Twitter2012 has been a big year for the concept of competing human rights.
In May, the Ontario Human Rights Commission published a long-awaited Policy on Competing Human Rights. Earlier this fall, the media reported widely the case of the woman who was denied a haircut by a barber because his religion does not allow him to touch a woman. And today the Supreme Court of Canada ruled on the complex N.S. case: a case that pitted the right of the key witness in a sexual assault trial – the victim – to wear her religious face covering, against the rights of two accused men – her uncle and cousin – to have fair trials.
As stated by Madam Justice McLachlan, the Chief Justice, in the majority on this decision: “The answer lies in a just and proportionate balance between freedom of religion and trial fairness, based on the particular case before the court.” [emphasis added]
There are no clear answers in this or in any other competing rights case.
Every day our clients face competing rights situation. The consequences might not be as severe – there may be no criminal conviction at stake – but boards of directors of non-profits and co-ops struggle with doing the right thing for both parties and to fulfil their legal obligations as directors. Like the Supreme Court justices, they must consider what makes sense in the context of the case before them. If one employee has a right to a service animal at work and another employee has an allergy to dogs; if one tenant has a right to use medical marijuana and a neighbouring tenant has a sensitivity to the smoke — the goal is the achieve the “just and proportionate balance” to which the Supreme Court refers.
The Policy on Competing Human Rights provides a framework to determine the best course of action when two sets of human rights collide. Use it and document its use carefully. It may provide a solution that satisfies the needs of all parties and it’s the best defence later to any complaint that you have not fulfilled your legal obligations to either party.
These are complicated cases that challenge us all to approach problems from others’ perspectives and to generate creative solutions that reflect the diverse nature of our communities.
