The Reconciliation of Legal Rights

AuthorPatricia Hughes
Chapter 10
The Reconciliation of Legal Rights
Patricia Hughes*
A. Introduction
Over the past quarter century “rights,” on the whole, have been
reinforced in Canada by the Canadian Charter of Rights and
Freedoms1 although they have been the subject of human rights
legislation for far longer. The international emergence of rights
along with the now numerous human rights instruments, have
established an atmosphere in which individual — and sometimes
group — rights dominate the discourse, encouraging the “pitting”
of rights against each other or against broader societal concerns.
For example, each guarantee under the Charter stands alone,
           -
        
  
one section has the potential for detrimental impact on the rights
of someone else, on other values inherent in the Charter, or on
societal requirements, as recognized by the balancing required
under section 1 of the Charter. Similarly, assertions of rights
* The views expressed in this paper are those of the author alone and
should not be read to represent the views of the LCO or of anyone as-
sociated with the LCO other than the author.
1 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
Patricia Hughes
under human rights legislation may be met with the defence that
permitting the claim will deny others their rights; human rights leg-
islation does not always provide a built-in balancing mechanism.2
When thinking generally about how rights interrelate (and not
merely under particular documents), there are at least two pri-
mary ways to address so-called “competing” rights claims. One
is to treat each of the claims in isolation and attempt to gauge
how much each has been infringed and then weigh them against
each other. This approach treats rights as having hard edges and
is not widely accepted. The other is to consider how to reconcile
or balance the claims. Since balancing may have the connota-
tion of one right trumping another, I prefer the term “reconcile.”3
This approach sees rights as having softer contours that seep
same overall understanding of the relevant legal document or in
the overriding values of society. Different rights may even raise
similar claims or at least relate to the same interest (freedom of
religion and religious equality, for example).
2 On “competing” rights under human rights legislation, particularly the
Ontario Human Rights Code, RSO 1990, c H.19, see Ontario Human
Framework” (OHRC, August 2005), online: OHRC
3 Reconciliation has been used by the Supreme Court of Canada in
addressing Charter claims, as well as in many other contexts. For a
discussion of the former, see Frank Iacobucci, “Reconciling Rights:
The Supreme Court of Canada’s Approach to Competing Charter Rights”
(2003) 20 Sup Ct L Rev 137. The notion of “reconciliation” is also
Jennifer Nedelsky, “Reconceiving Rights as Relationship” in Jonathan
Hart and Richard W Bauman, eds, Explorations in Difference: Law,
Culture, and Politics (Toronto: University of Toronto Press, 1996) at 67.

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