In today’s increasingly complex society, more and more people are becoming aware of, and fighting for their human rights. This has lead to increasingly complex situations where two people’s rights seem to clash, often this is called competing rights. The most commonly addressed source of competing rights is the constant issue of trying to balance the right to freedom of expression and the right to be free from discrimination. Some other examples are; what happens when a student is allergic to dogs and another classmate relies on a guide dog? or if a woman is testifying at the trial and is required to wear a facial covering in her religion does that interfere with the right to see one’s accuser?
In Ontario a legal guideline has been laid out for cases involving competing right and, there are 7 key legal frameworks for these cases.
- No rights are absolute
A consistent principle in case law is that no legal right is absolute. Legal rights are inherently limited by the rights and freedoms of others
- There is no hierarchy of rights
All rights are equally deserving of respect. An approach that would place some rights over others must be avoided. No right is inherently superior to another right.
- Rights may not extend as far as claimed
When faced with a competing right scenario, organizations must assess whether the rights extend as far as the parties claim. This validation process has two main components: i) does the claim engage a genuine legal right; and ii) when the evidence is examined, can the individual with the claim bring himself or herself within the asserted right?
- The full context, facts and constitutional values at stake must be considered
Rights must be defined in relation to one another by looking at the context in which the apparent conflict arises. Human rights do not exist in a vacuum and must be examined in context to settle conflicts between them. The constitutional and societal values at stake must be appreciated and understood
- Must look at extent of interference (only actual burdens on rights trigger conflicts)
When rights appear to be in conflict, one must determine whether there is an actual intrusion of one right on the other, and the extent of the interference. If the interference with a particular right is minor or trivial, that right is not likely to receive much, if any, protection.
- The core of a right is more protected than its periphery
If there is a substantial interference with the rights in question, the rights must be weighed or balanced; one right will give way to the other or both rights will be compromised.
- Aim to respect the importance of both sets of rights
The process of looking for options to reconcile competing human rights resembles the analysis under section 1 of the Charter of Rights and Freedoms (the “Charter”) as well as the process that must be followed as part of the duty to accommodate under human rights law