Balancing Conflicting Rights: Towards an Analytical Framework

AuthorB.J. Wray
Chapter 11
Towards an Analytical Framework
B.J. Wray*
A. Introduction
This paper was initially drafted for the Ontario Human Rights
Commission (OHRC) in the summer of 2005 as part of their pro-
In the intervening years, there have been a number of notable
        
have updated this paper accordingly. Since the legalization of
same-sex marriage in June 20051 some of the most prominent
dom of religion and sexuality equality rights. In Saskatchewan, for
example, the Court of Appeal was called upon by the provincial
government to review the constitutionality of proposed provincial
legislation which would have exempted civil marriage commis-
   -
ligious beliefs.2 In Ontario, the Superior Court recently grappled
with an exception provision in Ontario’s Human Rights Code3 that
* The opinions expressed in this paper are those of the author alone and
do not represent the views or opinions of the Department of Justice.
1 Civil Marriage Act, SC 2005, c 33.
2 In the Matter of Marriage Commissioners Appointed Under The Marriage
Act, 1995, SS 1995, c M-4.1. 2011 SKCA 3 [Reference re Marriage
3 RSO 1990, c H.19 [Code].
B.J. Wra y
involved balancing the rights of a religious organization with the
sexuality equality rights of one of its employees.4 These develop-
ments provide the background for this paper and, not surpris-
ingly, several of the scenarios outlined below are drawn from the
The purpose of this paper is to provide an analytical frame-
   
the Code. It is not meant to be an academic exploration of the
theories or philosophies that inform the balancing process. Nor
is it meant to be a treatise on how, precisely, one ought to imple-
ment a balancing process. Rather, this paper was developed as
a practical exploration of the tools one may use when faced with
          
        
have ensued. Section C outlines criteria for identifying when
there is no        
context. A number of balancing tools emerge from an examina-
tion of three main sources: caselaw, the preamble and exception
sections of the Code, and previous policy work in this area. Sec-
examples are used to illustrate how the balancing process may
work within and across a range of protected grounds.
       
highlighted below: pragmatic balancing and principled balanc-
ing. These models represent distinct approaches to the issue
of balancing. The implications of these distinctions, in terms of
4 Ontario Human Rights Commission v. Christian Horizons, 2010 ONSC
2105 [Christian Horizons].
amples. Each model tends to foreground certain balancing tools
over others.
For instance, pragmatic balancing focuses on the need to
carefully weigh competing interests in such a way that the reso-
     -
quently, pragmatic balancing looks to tools such as the exception
sections of the Code and the duty to accommodate as factors
   -
lar context. On the other hand, principled balancing often fore-
grounds factors such as the values underlying the Code and the
Canadian Charter of Rights and Freedoms,5 and delineates the
possible. Whereas pragmatic balancing will always proceed in a
case-by-case manner, principled balancing may put forward over-
riding concerns that will apply across all cases and all contexts.
Although it is the aim of this paper to tease apart these two
distinct theoretical approaches to balancing, in practice they nec-
essarily coexist. This will become particularly evident in the case-
law section of this paper where the tools associated with both
pragmatic and principled balancing are often employed within
a single judicial decision. Courts generally must grapple with
       
because principles and pragmatic outcomes are both at stake.
Indeed, the Supreme Court noted this in Sydicat Northcrest v.
Amselem: “This appeal requires the Court to deal with the inter-
relationship between fundamental rights both at a conceptual
level and for a practical outcome.”6 This paper explores how the
conceptual or principled tools for balancing are translated into
important to identify the separate strands of balancing in order
5 Canadian Charter of Rights and Freedoms, Part I of the Constitution
Act, 1982, being Schedule B to the Canada Act 1982 (UK) 1982, c 11
6 Syndicat Northcrest v Amselem, [2004] 2 SCR 551 at para 1 [Amselem].

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