The Reconciliation of Legal Rights

• Author: Patricia Hughes
• Pages: 271-293

271

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

[Charter].

Patricia Hughes

272

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 www.ohrc.on.ca/sites/



an_analytical_framework.pdf.

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.