Policy on Competing Human Rights Ontario Human Rights Commission (2012)

The Court must be guided by the values and principles essential to a free and democratic society which I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society.

 A competing human rights situation exists when legally protected rights are present in both claims, and at least one of the claims connects to human rights law.  Based on this definition, allegations of competing human rights scenarios might include:

 Code Right v. Code Right  Code Right v. Code Legal Defense  Code Right v. other legislated Right  Code Right v. Charter Right  Code Right v. Common Law Right  International Treaty Right v. Code/Charter Defence  Charter Right v. Charter Right

 No rights are absolute  There is no hierarchy of rights  Rights may not extend as far as claimed  The full context, facts and constitutional values at stake must be considered  Must look at extend of interference (only actual burdens on rights trigger conflicts)  The core of a right is more protected than its periphery  Aim to respect the importance of both sets of rights  Statutory defences may restrict rights of one group and give rights to another

 Context and facts:  The courts have repeatedly held that Charter Rights and Human Rights do not exist in a vacuum and must be examined in context to settle conflicts between them.  Underlying constitutional and societal values:  As part as understanding the context, the constitutional and societal values at stake must be appreciated and understood. This scoping of rights allows some rights conflicts to be resolved.

 There have been cases where a person’s objections to what they see as a violation of their rights have not been successful because their views are not consistent with society’s underlying values on human rights and equality. (p.24)

 Decision-makers should apply a contextual analysis that considers constitutional values and social interests including equality rights of women, negative stereotyping of minorities, access to justice and public confidence in the justice system. (p. 24).

 Example:  This case involved a challenge to a school board’s decision not to approve three books showing same-sex parented families as supplementary resources for use in teaching the family life curriculum. (p. 24)  While religious concerns of some parent could be considered, they could not be used to deny equal recognition and respect to other members of the community. It was emphasized that if a school is to function ina n atmosphere of tolerance and respect, these views could not become the basis of school policy (p. 24).

For one Right to prevail over another, the impact on the core of the Right must be shown to be real and significant in the circumstances. Yet, even where this is found to be the case, there is still a duty to accommodate the yielding right as much as possible. (p. 27)

 Educators have the ultimate responsibility for maintaining an inclusive environment that is free from discrimination and harassment, and where everyone’s human rights are respected.  Organizations and institutions operating in Ontario have a legal duty to take steps to prevent and respond to situations involving competing rights.