Re: "Clamping down on discussion would erode human freedoms" (Ray Sanborn, June 8 Gazette):
Ray Sanborn is to be congratulated for his thoughtful letter about human rights, in particular the “rights” conflict between a woman and her unborn child, and the right to freedom of expression. His letter opens the way to a much-needed discussion on rights and their corresponding responsibilities.
There are many who are quick to claim that their rights have been violated. Often, this claim is supported by reference to the Charter of Rights and Freedoms or to related legislation such as the Alberta Human Rights Act. Sadly, virtually all such legislation is written in absolute terms. The Supreme Court has ruled (quite correctly) that there is no priority in the list of prohibited grounds in the Charter. Each prohibited ground is to be considered on its own merits.
A problem arises when we try to apply the Charter or the Human Rights Act to cases that involve conflicting rights. Unfortunately, that situation is the norm rather than the exception. Each individual right is based on one or more fundamental principles. Pushed to its limits, almost any principle will come into conflict with all other principles. (One possible exception: that the truth must be acknowledged – that we must recognize that what is, is.) The exercise of any human right will ultimately involve conflict with other human rights. We are all familiar with the necessary limitations on freedom of expression: no shouting “Fire!” in a crowded room, libel laws, penalties for perjury, etc. Similar conflicts and limitations can be found for all human rights.
What is lacking in the Charter and other legislation is an effective method of resolving the conflicts that necessarily arise in the exercise of our rights.
Our rights are often divided into two categories: passive rights, that protect us from the actions of others or that entitle us to refuse to act (a “shield”); and active rights, that entitle us to take action or to require that others act (a “sword.”) Two shields rarely, if ever, come into conflict. On the other hand, two swords or a sword and a shield may easily be in conflict. It is this area that has been ignored in legislation.
I submit that, typically, a passive right must outweigh an active right. A person exercising a passive right does nothing to harm the other party, who is free to seek service or take action elsewhere. The same can not be said for the person exercising an active right; the action being taken or being required might well effect an irrevocable change on the other party. It is time for our courts and our legislatures to address the problems they have created with their well-intended but misguided actions.
Dominic Willott
