Why constitutional rights should have priority over human rights
Jessica Yaniv has started human rights complaints against 15 or more female beauticians that have refused to provide their waxing services on the basis that Yaniv has male genitalia.
In these cases, human rights are conflicting with constitutional rights. On Yaniv’s side, there is the human right to be free from discrimination on the basis of gender identity, protected in the BC Human Rights Code.
For these women, various constitutional rights are engaged. At least one of the women has made it explicit that she objects to waxing Yaniv’s genitalia on religious grounds.
This woman is Sikh, and she has stated that her religion forbids intimate touching with anyone other than her own husband. This engages her freedom of religion protected in the Charter of Rights and Freedoms.
Of course, religion is not the exclusive source of sexual ethical codes, and so at least some of the other women likely object to handling male genitalia based on their own moral code, whether that be religious in origin or not. These latter cases would engage the constitutional right to freedom of conscience and the right to liberty.
Assuming all of these rights should exist, which one should take precedence in this situation? What principles can we articulate to guide our choice not only in this
I will argue that constitutional rights should be given a strong, but not absolute, priority over human rights in situations where they come into conflict.
The legal hierarchy
The first reason that constitutional rights should be given priority over human rights is the respective places of these two types of rights in the legal hierarchy.
The constitution is explicitly recognized as the “supreme law of Canada” in section 52 of the Constitution Act, 1982. Any law that is inconsistent with it is supposed to be of no force or effect.
Our rights found in the constitution cannot be easily changed without substantial agreement between the provinces and
These rights are entrenched and made so difficult to change because they are so important. It would be unwise to have these rights merely in a regular law that was subject to change at the whim of any single government.
If that was the case, one government could get elected and decide that it wasn’t fond of something like freedom of the press, or the constitutional prohibition on cruel and unusual punishment. Nazi Germany showed us that even the most terrible parties can get the support of the people from time to time. When that happens, we want our rights to be safe.
On the other hand, human rights are created by an ordinary provincial law passed by a majority of provincial representatives. They are subject to change at the whim of a provincial government with the support of the legislature. The general purpose of these rights is to prohibit discrimination by individuals against other individuals in various spheres of public life.
One would think that the constitutionally guaranteed, nearly unchangeable rights that are recognized as the “supreme law” would be granted a substantial priority over these rights passed by the province and subject to change at the whim of a provincial government. This is not the case.
The Supreme Court of Canada has stated that human rights tribunals may engage in a “balancing” of our constitutional rights with human rights. As long as the balance reached by the tribunal is not “unreasonable,” the decision of a human rights tribunal will be upheld by the higher courts.
This does not make any sense. The provincial and federal governments cannot directly weaken our constitutional rights, but they can do it indirectly by just passing human rights codes that will come into conflict with the constitution. Human rights tribunals can then impede the constitutional right to a great extent when the two conflict.
Therefore, constitutional rights should be given priority simply to follow the hierarchy of laws that we find in most liberal democracies. Canada has put constitutional rights in the category of the most important laws of the land, and we protect that from changing by having the rigorous amendment requirements. It is illogical for us to permit provincial governments to outsource violations of these rights to a human rights tribunal.
Who the right is enforced against
The next reason that constitutional rights should be prioritized over human rights is that constitutional rights protect you from the government, whereas human rights protect you from other individuals.
As I explained in an earlier article, constitutional rights are enforced against the government and only the government. They typically prohibit the government from doing something, like restricting criticism of the government, or discriminating against people on the basis of several characteristics.
In contrast, human rights are rights that individuals enforce against each other, and they often create a positive obligation on another person to act in a certain way. For instance, Yaniv has the human right to be free from discrimination by other people on the basis of gender identity, but the flipside of this is that these women are forced to take the positive action of waxing Yaniv’s genitalia.
Why is this important? For two reasons.
Firstly, the infringement of liberty when forcing a person to take a positive step is very high. When the government is restricted from taking a certain action, we as individuals are still at liberty to take any action we want.
In contrast, when one enforces a human right against another individual using the human rights tribunal, one is using the powerful arm of the state to force another individual to do something against their will.
This is significant in a liberal society, which is founded on the idea that each individual is best suited to decide how to live their life. Behind every state-action is the threat of violent force to enforce the action, which people are obviously powerless to resist.
Using the state to enforce a human right strips all liberty and agency from a person and puts the state in charge of their actions. The threat of force bends the will of the individual. It is a massive infringement of liberty.
The second reason that having a right enforced against the government is important is that government is far more powerful than a private entity.
Consider the effect that a rights violation will have in a basic case of discrimination. The government’s monopoly on many services, including essential ones like policing and healthcare, could result in discriminatory action barring someone entirely from a service. Furthermore, the government’s ability to enforce its decisions through force will result in the discrimination being profound and effective.
In contrast, if a private individual, like a restaurant owner, chooses to discriminate against me for an unchangeable characteristic, I am at liberty to not associate with that individual/corporation. I could boycott their services and spread the word about their discriminatory practice in the hopes that other people will boycott their services. And unlike the government, that individual is not able to use the coercive force of the state to retaliate against me.
Applying these principles to the Yaniv litigation
How do these principles play out in practice, particularly in the Yaniv litigation?
If we choose not to prioritize Yaniv’s human rights, Yaniv will face the prospect of being denied service on the basis of gender identity, which undoubtedly causes some inconvenience in attempting to find another service provider. Furthermore, it likely affects Yaniv’s sense of dignity and self-worth. This is not trivial, because liberal societies presume the equal worth and dignity of every individual, and less than equal treatment impairs that equality.
But at the same time, Yaniv retains the option of seeking out other service providers. There are undoubtedly many service providers in BC that will wax male genitalia.
If Yaniv finds another service provider, which is effectively choosing to boycott the women’s services, Yaniv can be reasonably certain that there will not be retaliatory action from those women.
Arguably, the consequences of not prioritizing women’s constitutional rights are much more serious. The violation of liberty, as described above, is severe.
By choosing to enforce Yaniv’s human rights, the strong arm of the state is reaching down into the personal lives of these women and forcing them to do a very intimate act against their own personal convictions. Such a scenario is the antithesis of a free society.
The enormous power of the state is closely tied to this. These women will be powerless to resist the order of the state. They will be liable to massive fines enforceable by court order, and potentially an order requiring them to provide the waxing service to Yaniv.
In short, when applying the principles to the Yaniv case, the damage done to the liberal ideals of freedom and individualism that underlie our society is greater when preferring human rights over constitutional rights. What should we do about this?
Direct the tribunal to give priority to constitutional rights
We should ensure that we are giving primary weight to constitutional rights when the two types of rights conflict. This could be accomplished by directing human rights tribunals, in each provincial human rights code, to give primary weight to constitutional rights when the two types of rights conflict.
This does not need to be a direction that constitutional rights will always trump human rights without any discretion. The constitution explicitly states that rights are subject to reasonable limits, and I leave open the possibility that a constitutional right should yield to a human right in circumstances that are clearly justified.
A good example might be a landlord claiming that providing an essential service, like tenancy, to a gay couple would violate his religious beliefs. In such a situation, the basic human need for shelter may justifiably outweigh the landlord’s right to express his religious beliefs.
However, the direction should be clear enough to remove discretion from the tribunal in cases
The Philadelphia Flyers’ beloved mascot Gritty is being investigated by police after a father claimed that the big orange furry monster punched his 13-year-old son in the back.
Chris Greenwell took his son Brandon to the Wells Fargo Center for a November meet and greet photoshoot with the beloved, google-eyed mascot.
According to the Philadelphia Inquirer, Greenwell claims that “Brandon playfully patted the mascot on the head after the photo was taken. As Brandon walked away, Gritty got out of his chair, ‘took a running start,’ and ‘punched my son as hard as he could,’ Greenwell said Wednesday.”
“We took Mr. Greenwell’s allegations seriously and conducted a thorough investigation that found nothing to support this claim,” said a spokesperson for the Philidelphia Flyers.
A police spokesperson has described the alleged incident as a possible “physical assault” that occurred “during a photoshoot with 13-year-old white male and Flyers mascot Gritty. The investigation is active and on-going.”
The hashtag #FreeGritty is now trending on Twitter.
The Ontario teachers’ strikes are proving to be more acrimonious than anyone expected. Elementary teachers have now opted out of writing report cards and have already begun to engage in rotating strikes.
The Ontario government, on the other hand, have offered up to $60 per day for parents who are feeling the fiscal consequences of the strike, and rumours of back to work legislation is being floated around the corridors of Queen’s Park.
The teachers’ strikes are deeply consequential and have affected the day-to-day lives of 13 million Ontarians who live in the most populace province in Canada. Due to the vast impact this strike, and the mainstream media’s lack of balance in the coverage (often siding with the unions and tecahers), The Post Millennial has compiled a list of things you need to know about the Ontario teachers’ strikes.
1. Ontario’s teachers are among the highest paid in the country
Ontario’s teachers are among the best paid in the country. In the Greater Toronto Area, for instance, top teachers can expect to get paid up to $96,000 a year. The average salary for a teachers in Ontario is $89,300 for elementary teachers and $92,900 for high school teachers. In contrast, the average Ontarian earns $55,000 per year.
2. Ontario teachers are taking more and more sick days
A 2017 study found that teachers have been taking more and more sick days over the past five years. On average, sick days have increased by over 30 percent. In 2020, another report revealed even starker results with teachers taking 70 percent more sick days than over a decade ago.
3. Teachers get a whole lot of time off
Ontario’s teacher’s have a pretty great job. Not only do they get paid a wage that is far higher than the average Ontarian, they also get a lot of time off. Due to breaks in the school year, teachers are allowed three whole months off, on top of the aforementioned sick days.
4. Teachers’ Unions are spending big bucks to win the PR war
So far, the OSSTF has spent $336,389 on Facebook ads alone. These ads usually attack the Ford government and have been running since June. In one week alone, they spent over $40,000. They’re also waging a war of words against Ontario Education Minister Stephen Lecce through the mainstream press.
5. The Ontario government has already made concessions, but unions won’t meet in the middle
Premier Doug Ford has offered numerous concessions to the teachers’ unions from the government’s initial demands. Ford, for example, offered to meet the teachers half-way on classroom size. This, however, was not good enough for the teachers, and they walked away from the negotiation table. They’re also refusing to do report cards and help out in after school activities, despite claiming the strikes are primarily for the students, not their pay cheques.
6. Ontario’s students are flunking math tests
If you’re going to teach mathematics to a new generation of students, you should probably have to prove that you have some basic ability to do so. This hardly unreasonable request, however, created some tension with the teachers’ unions. Despite EQAO tests showing all-time lows, the unions were upset that teachers had to score at least 70 percent in a math test.
7. Ontario’s debt is astronomically high
After a decade of Liberal government, Ontario’s debt stands at over $350,000,000,000. This figure constitutes one of the highest sub-national debts in the world. Due to this, the Ford government is trying to cut back public sector salaries, which means slowing down the rate at which teachers are paid. Teachers in Ontario also have what many experts consider to be a great pension package.
Shawn Lewis, city councillor for London, brought forth a motion to move the annual London Santa Claus Parade at Tuesday’s Community and Protective Services Committee meeting. The idea for the move is due to its proximity to the Remembrance Day Parade according to CBC.
The motion Lewis introduced was to restrict any parade permits on public streets between Nov. 1-11, the idea being so that the public doesn’t lose focus on the veterans and the sacrifices they’ve made. Lewis serves as chair on the committee.
“As a member of the Royal Canadian Legion myself, I think it is important that Remembrance Day and the lead up to it have a public focus on our veterans and the sacrifices they have made for us,” Lewis wrote in a letter.
The London Santa Claus Parade has taken place on the second Saturday of November in the past, a date that often falls just before Remembrance Day, leaving many veterans feeling unappreciated.
The organizers of the Santa Claus parade agreed to move the date in the future but Lewis wanted to ensure that this didn’t become an issue down the line.
“As time goes on, people retire from organizing events, other people take over, councils change, mayors change, and I think it’s just a good idea to formalize it in our procedures and policies with respect for our veterans,” he told the committee.
Much to Lewis’ delight, the motion passed 4-1.
Ward 3 Coun. Mo Salih voted against the decision however stating, “Me personally, I’m supportive [of the motion], … but I’m struggling on restricting people from choosing to make their own decisions,”
He went on to add, “Many of those people who have served, served to ensure people can make whichever decisions they want to make and do what they want to do on certain days, but I recognize where this is coming from,”
“It seems like a simple solution,” said Ward 1 Coun. Michael Van Holst, who voted in favour of the motion. “[It’s] surprising that someone hasn’t thought of it before.”
Lewis stressed the importance of dealing with this procedurally, saying it’s the only way to address the issue but the decision will still require approval from city council.
The former intermin Conservative Party leader Rona Ambrose has officially announced that she will not be running in the Conservative leadership contest.
Ambrose, who was encouraged to run by Brad Wall and Jason Kenney, is a highly respected figure within the party with particularly deep roots in Western Canada.
In a statement published to Facebook, Ambrose stated that it was “humbling to be considered” for CPC leadership. “I love our party, I love the people in it and I love our country. I have really struggled with the decision to return to political life,” she added.
“I loved my 13 years in public service as an MP, minister and especially as leader of this great party. But right now, I am focused on making a difference through the private sector. Creating policy and advocating for our energy sector to create jobs … the truth is, I love being back in Alberta.”
This will come as a blow to many Conservative supporters across Western Canada who viewed Ambrose as the best chance of defeating Justin Trudeau. She also would have been a deeply competitive candidate in the leadership election.
As a result, Marilyn Gladu remains the only women who is competing in the leadership contest. This announcement will be celebrated by the veteran Tory candidates like Peter MacKay and Erin O’Toole, who risked having their vote share divided.