Sarah Boesveld, National Post, November 30, 2012
She may not have felt it in the moment — the day she called the Muslim barber a sexist for denying her a haircut due to the rules of his faith, turned on her heel and filed a complaint with the Ontario Human Rights Tribunal.
But now, after the ensuing media storm about her case two weeks ago, Faith McGregor is frank about how Omar Mahrouk’s right to religious freedom and her right to be free from gender discrimination coexist.
“They are equally important — they definitely are equally important,” the Toronto resident said in an interview this week. “They’re both steeped in history in their own right with regards to freedom of religion and what that means for the owner and the history of religion, [and] freedom of a woman to be able to be treated with respect and not be treated as something that’s subordinate to a man.”
Yet she also sees these rights as “diametrically opposed” — on contrary sides of the rights spectrum, hurtling towards one another in a crash of willful identity, in which each personal right feels too vital to concede. Human rights in gridlock with one another.
It’s the same kind of case Bill Whatcott and gay rights activists in Saskatchewan have been waiting almost 18 months for the Supreme Court of Canada to decide — whether his right to freedom of expression for distributing flyers about his views towards gay people trumps their right not to be discriminated against based on their sexuality. And it’s reminiscent of another case also before Canada’s highest court — whether a Muslim woman should be allowed to wear a niqab during testimony at a sexual assault trial; a matter that pits religious rights against the right of defendants.
When then-Quebec premier Jean Charest argued in 2007 that when women’s rights conflict with other rights, women’s rights should prevail, he highlighted the fact that there are necessarily choices to be made when it comes to balancing human rights in a Canada that is more diverse than ever — welcoming more new immigrants, feeling the social effects of same-sex marriage, and seeing women’s continued ascent in the workplace. Inevitably that results in drawing lines between which rights Canadians consider to be legitimate rights, and therefore, inviolable, and things we have come to call “rights,” but may be something less.
And in a far more diverse Canada, we’ll continue to see more and more clashes between the two. A new policy from the Ontario Human Rights Commission released this year suggests that stand-offs between rights are only going to proliferate. The OHRC is the first Canadian human rights body to release a framework for how to consider cases that arise when unexpected tensions fuelled by social changes collide. It followed up on that policy this week with the release of Balancing Competing Human Rights Claims in a Diverse Society — a wonkish book of articles on how tribunals, judges, lawyers and regular citizens can better broach the near impossible task of ironing these struggles out.
But as the Ontario Human Rights Commission fashions itself as a leader on this issue — having intervened on both the Whatcott and niqab Supreme Court cases with its “framework” on competing rights — critics are skeptical of whether these rights can actually be balanced; whether rights like freedom of religion, freedom of expression and freedom of contract carry a different kind of weight than rights under the Human Rights Code, like freedom from discrimination.
“The problem is that you’ve got an irreconcilable contradiction between the classical liberal rights which impose virtually no obligations on others, versus the new ‘human rights’ which do impose obligations on others,” said John Carpay, the president of the Justice Centre for Constitutional Freedoms in Calgary. “There’s no way to bridge that difference. Those two sets of rights are inherently contradictory… It’s like asking for cool sunshine or dry water.”
Karen Selick has a stronger word for human rights granted under the code: “phony.”
“When we in Canada talk about human rights in foreign countries, we’re talking about rights like the right you have for the government not to kill you — that is a genuine right,” said the litigation director of the Calgary-based Canadian Constitution Foundation. “When we talk about rights in Canada we talk about rights [that require] someone to do things for you. I don’t see that as a right at all.”
It’s misguided to try to balance these competing rights — which, she says, should have been anticipated when human rights codes were created in the 1960s — because “genuine rights don’t conflict,” she said.
“It undermines the meaning of the word ‘right’ because if they say this woman has the right to force the barber to cut her hair, essentially they’re saying he doesn’t have the right to practice his religion.”
Market pressures should prove enough of a deterrent from discrimination, she said. Ms. McGregor has a right to express her disgust with being turned away, she can boycott the barber, which may drive male business away. But to ask Mr. Mahrouk to hire another person who is not Muslim and will be able to cut a female client’s hair (he and his colleagues follow the Muslim teaching that a man should not touch a woman who is outside his family) would be an unreasonable burden.
Societal changes — some more noticeable than others — tend to spark these competing rights clashes, said Bruce Ryder, a professor at York University’s Osgoode Hall Law School who studies equality rights and freedom of expression. For example, the legalization of same-sex marriage highlighted the expectation that people not be discriminated against because of their sexuality — a religious-rights-versus-sexuality-rights issue faced by Ontario Catholic Schools as they meet requirements laid out in the province’s new anti-bullying legislation.
“They seem new as values and social realities shift over time, giving rise to new forms of conflict or new understandings of rights, and accordingly, the legal balance drawn between different rights shifts too,” Mr. Ryder wrote in an email to the Post. For example, he said, property rights and contract rights used to prevail over equality rights until the civil rights movement drastically shifted public opinion.
“Many of the current clashes involve religious rights competing with rights to sexual and gender equality. I don’t think it is helpful to think of them as clashes between new and old human rights, at least not in the Canadian context where they are all of the same vintage. We have some difficulty around the margins, but I think we generally have a clear understanding of which rights prevail in which context.”
If judges, tribunals and the people involved in these claims pay more attention to context, how much the competing rights interfere with one another and make sure the core of the right is more protected than “its periphery,” this will help balance these competing claims, said Barbara Hall, the chief commissioner of the Ontario Human Rights Commission.
“You can see how courts have come up with different solutions depending on the context,” she said. “If you’re a priest or an imam, you are not required, can’t be required to marry people contrary to your faith. But the courts have found that if your job is as a civic marriage commissioner and you’re hired to do that, that your religious rights are different in that situation and the difference is context.”
While critics argue these rights can’t be balanced, “the law is not good at compromise” and will be forced to pick a winner or loser should mediation not be pursued or fails, said Lindsay Lyster, a former member of the B.C. Human Rights Tribunal, and current president of the British Columbia Civil Liberties Association.
People can and should try to work out these problems without someone else deciding for them, and 80% of cases that come to the B.C. tribunal are resolved in early mediation, she said.
“I think you clearly can [balance rights]. That’s what tribunals applying human rights codes do, that’s what judges applying the Charter of Rights do because it’s inevitable that there will be rights that come into competition and will have to have a means of managing that clash,” she said. “Sometimes one’s going to win out. In that sense it may be impossible to balance in a given case — it may be that one is going to win out.”
But rights can’t be balanced if people regard their own as absolute, Ms. Hall says — and because people are very passionate about their rights, that does tend to be the mindset when people file human rights complaints and are forced to respond to them, fuelled by stubborn emotion and the strident belief they shouldn’t have to bend to the demands of others.
“If people want to only think of their [right] and for it to be absolute, then they misunderstand rights in Canada and how courts and the law have responded to them going back generations,” she said, adding she believes there is no hierarchy of rights in Canada either.
Bill Whatcott believes his rights are indeed absolute. Back in 2005, the social conservative activist was ordered to pay $17,500 by the Saskatchewan Human Rights Tribunal for distributing literature the human rights body deemed hateful — a ruling the Saskatoon Court of Appeal overturned five years later.
“Freedom of religion, freedom of speech, freedom to own property, the right to life with due process. These are fundamental rights and that’s what they’ve been historically called,” he said, adding that these rights have been “trampled” in cases where they clash with “equality rights.” He can tell the Supreme Court is struggling with his case, he says — while a typical case takes around six to nine months to sort out, his has taken twice as long.
Trying to balance competing human rights gets tricky when individual rights clash, like in the barbershop case, since the system is set up to deal with claims of institutional discrimination — such as in the workplace, said Shauna Van Praagh, a professor of law at McGill University, who points out that Quebec’s human rights laws recognize that a person cannot “harm” another person while trying to uphold their own right — that their freedom is limited in that regard.
In the rest of Canada, however, human rights tribunals are often weighing the unique rights of individuals against each other.
“The state can’t discriminate against its citizens — the state has to be impartial,”said Ms. Selick of the Canadian Constitution Foundation. “But I don’t see why an individual has to have the same obligations. There’s an interesting lack of parallelism.”
Mr. Mahrouk, the barber, and his lawyer David Kolinsky declined comment as they await mediation before the Ontario tribunal in February. And at that meeting, Ms. McGregor hopes they can come to a mutually agreeable decision.
“I think in this particular situation, we have to be accommodating,” she said. “I believe that he’s going to have to accommodate in some capacity in order to meet requirements as a business-owner and provider of a service within this province and in this country, or he runs the risk of running into this time and again.”