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
Former Prime Minister Kim Campbell has called Wexit “nuts” and that it was created to sow “unnecessary division.”
Speaking to Global News, Campbell stated that “adult” conversations were necessary with policies like equalization, and yet the dialogue has been anything but mature.
“We’re a complex country and we are always going to have issues that need solving,” she added. When Campbell was prompted on Wexit she gave out an incensed screech: “It’s nuts! I’m sorry, it’s a dead-end, so Alberta’s going to separate and that’s going to make it easier to get access to open water? That is a slogan designed to make people angry.”
Campbell’s comments come after the surging support in western separatism deriving from Justin Trudeau’s re-election. Since then, a notable online presence has grown in support of the Wexit movement, and the premiers of western provinces have cautioned Trudeau of the stark consequences of western alienation.
Campbell finished by saying that the Wexit movement “was not how grown-up people address problems … I see this and I think grow up!”
A Twitter search of Campbell’s tweets on Quebec show no similar criticism of the separatist movement in that province.
A call centre that had dozens of employees attempting to dupe Canadians into handing over money via various types of phone scams has been shut down by Indian authorities, according to a statement from a New Delhi police deputy.
According to Sameer Sharma, the “swanky international scam call centre” targeted Canadian citizens, with the call centre coming to police attention on Friday.
By Sunday, more than 30 people were arrested, with 55 computers and 35 phones being seized in the search. Police also took flow charts from the call centre, which served as scripts for employees to better scam customers.
Sharma said police arrived while “several” scam calls were still in progress, with computers containing multiple Canadian phone numbers on their screen. Thee supervisors were also on scene.
“The supervisors … were asked about the activity going on there but they could not give any satisfactory answer,” he said.
“On sustained questioning, they divulged that they were engaged in calling [Canadians] and impersonating [themselves] as genuine Canadian police.”
Police say suspects are mostly in their late teens and early 20s, though some are closer to 40.
The 32 employees were arrested for violating the Indian Telegraph Act, the Indian Wireless Telegraphy Act, and the Information Technology Act.
Four men who are believed to own the call centre were not present at the time of police arrests, and are currently being sought by police, according to Sharma.
Delhi police also mentioned that they were aware of a Canadian who was scammed out of nearly $14,000 by the now-defunct call centre.
Sharma detailed the scam, saying that victims are typically greeted on the line by a man falsely claiming to be calling from Service Canada. They then claim that the victim is under threat of some type of identity fraud, or that suspicious activity had been detected under the victim’s SIN number. Victims are then pressured to call back, and eventually, are made to pay hefty fees and payments in order to “settle the matter.”
Payments were typically made in prepaid credit cards, gift cards, or cryptocurrencies such as bitcoin. Police also discovered software that could receive bitcoin payments, according to Sharma.
Police say the SIN scam is one that’s new to the scene, and that potential victims should instead seek to settle all potential fraud cases with local courthouses or RCMP, rather than unverified Service Canada calls.
Police also remind the public not to put too much faith in caller IDs or displays, as scammers typically use programs to create false names while calling potential victims. This also allows the scammers to make their calls appear as though they’re being made in Canada.
Anti-scam centres also note that any number requesting payment via Amazon or iTunes gift cards are major red flags, as they are often difficult to trace back and recover.
Three people are dead after being shot Monday in a Walmart parking lot in Duncan Oklahoma. Authorities have confirmed the shooter is among those dead.
Duncan police say a man and a woman were shot and killed by the gunman. KSWO Lawton has confirmed the shooter is among those dead.
According to reports, the gunman killed himself after a brief confrontation with an armed citizen in the parking lot.
Police say the man and woman were found deceased in their vehicle.
Police believe the crime was committed with a handgun found at the scene.
A school lockdown was put into effect during the investigation. The lockdown has since been lifted.
“Duncan Public Schools is aware of the report of a shooting at Duncan Walmart,” A Facebook post by the school board stated. “As always we are taking every precaution to protect our staff and students. At this time all schools are in lockdown due to this report. Schools will operate as normal, but visitors will not be admitted until police report it is safe.”
“As this is an active police investigation, we are currently referring additional questions to law enforcement and assisting however possible,” a Walmart spokesperson told CNN.
This is a breaking news article and will be updated.
Starship Enterprise commander and entertainment icon William Shatner is among 39 Canadians scheduled to receive commendation for their contributions to Canadian life and culture.
This Thursday Nov. 21, Governor General of Canada Julie Payette “will invest three Companions, five Officers and 31 Members into the Order of Canada during a ceremony at Rideau Hall.”
Not to be outranked by Captain Kirk, silver screen legend Donald Sutherland will be named Order-of-Canada Companion, the country’s highest civilian honour.
Initiated in Canada’s Centennial year in 1967, the order’s motto is “Desiderantes meliorem patriam” (They desire a better country).
Princeton mathematician Robert Phelan Langlands and National Film Board documentarian Alanis Obomsawin will also be named Order-of-Canada Companions.
“Close to 7,500 people from all sectors of society have been invested into the Order,” reads a Rideau Hall statement.
“Those who bear the Order’s iconic snowflake insignia have changed our nation’s measure of success and, through the sum of their accomplishments, have helped us build a better Canada.’
You can read the entire 2019 Order-of-Canada investiture here.