Charter of Rights

In a conflict of rights, who wins?

If everyone is given the right to everything then eventually, no one will have the right to anything.   

Civil rights (or civil liberties as they are sometimes called) have an important purpose in a democracy: to prevent the majority from using their votes to create the ‘tyranny of the majority’ over minorities.  That is why, in 1982, Canada constitutionalized minority protection in our Charter of Rights and Freedoms. This was followed by federal and provincial human rights laws prohibiting discrimination on the basis of race, religion, sex and other important characteristics of minorities. 

The theory is that the majority does not need legislated rights because their votes determine who is in government and what that government legislates, but minorities need to have certain basic rights recognized and protected.  But as unpopular as it may be to say it: granting more new rights has its limits.

The rights granted to one group will sometimes collide with the rights granted to another group.  We see this today quite dramatically with trans activists’ assertion that trans women are women and some feminists’ assertions that they are not, and should be excluded from women’s sports, women’s shelters, women’s public washrooms and women‘s prisons.  The trans activists have won.  Whether trans women are women is no longer a matter of opinion.  It is now the law.

Since the adoption of the Charter, claims for more rights have continued to proliferate, and new rights continue to be granted.  We only increase the number of rights, we never reduce them.   We can’t keep granting increased rights in perpetuity. At some point the proliferation of conflicting rights will generate social conflict and increasing polarization between various rights holders. With what is called “cancel culture,” some Western democracies have now reached that point.

Rights, like money, are the currency of comfort.  But just as printing too much money inflates and devalues the dollar, printing too many rights makes them increasingly difficult to enforce.  I have written about this here in the context of the Nova Scotia lobster fishery, as but one example.  If every group is given the right to everything then eventually no one will have the right to anything.

That raises an interesting question: how do rights become recognized and strengthened?  If I claim that I have the right to X, does my saying so make it so?  That depends on who, if anyone, turns my claim into a recognized right. 

In both the Donald Marshall case and UNDRIP (the United Nations Declaration on the Rights of Indigenous People), First Nations advocates and their supporters – including federal politicians – have vastly overstated the legal rights actually granted. 

In the Donald Marshall case the accused was acquitted only for fishing for eels. The court emphasized that this acquittal did not apply to any other species. Despite this clear judicial language the Marshall decision has been mythologized as granting the Nova Scotia Mi’kmaq the right to fish for whatever species they want, in or out of season, albeit only for a modest livelihood (whatever that means).  Such rights, like eels, are slippery creatures. 

The Minister of Fisheries and Oceans, in her recent appearance before the House of Commons Committee on Fisheries and Oceans, implied that her government had accepted the story that the Supreme Court of Canada in Marshall had constitutionally recognized open season on lobsters for indigenous fishers.  Think about her approach.  She was in negotiations, seeking the indigenous fishers’ consent to some limits on indigenous lobster fishing rather than imposing the limits necessary for species conservation, which she has the power to do under the Fisheries Act.  Nor was she requiring equity with nonindigenous fishers.  She appeared to be giving rights to indigenous fishers – beyond what the court ordered in Marshall – and doing so without legislation or a debate in Parliament.

Similarly, on UNDRIP, Independent Indigenous Senator Murray Sinclair told the CBC on December 12 that “Indigenous people now will be able to negotiate with a stronger hand” under UNDRIP.  As I have explained here, UNDRIP is redundant in Canada today.  It grants no rights that Canadian indigenous people don’t already have, and have had since the Queen signed our Charter of Rights in 1982. 

To argue that UNDRIP will give Canadian First Nations a stronger hand is to anticipate a new right that does not yet exist.  However, Senator Sinclair’s assertion of this nonexistent right of veto over resource projects may become a self-fulfilling prophecy. If the Canadian government now creates that right by enacting a new law that the government pretends is based on UNDRIP, the veto right will then exist.

The granting of too many rights becomes self-defeating. It creates fear among the majority of the threat of growing social disintegration, as minorities’ demands for more rights increasingly constrains majorities.  

There is a cost to this social engineering.  It creates a risk of an electoral backlash from what Richard Nixon famously called “the silent majority”.  There are many who feel increasingly left out of the government’s feeding victimhood claimants with new coercive rights.

A government excessively focused on minority rights moves the political pendulum too far, usually to the left.  From that position it will tend to swing too far to the right, bringing in authoritarian leadership that either repeals or effectively undermines previous rights, sometimes severely. 

Limiting the grant of new rights preserves the value of established, older rights, and reduces the amplitude of the pendulum’s swings. Saying “no” to demands for new rights requires political self-restraint. But unless there is some restraint on the swing to the left there will be no restraint on the inevitable swing to the right.

10 replies »

  1. This is an excellent post. I have noticed the tendency of many young people to demand that a series of new “rights” be established – the “right” to housing, the “right” to water, the “right ” to taxpayer-funded daycare and university tuition, etc. It seems that there is a widespread confusion over what used to be considered as the universal rights of man, which is a philosophical proposition, and the economic privileges granted by wealthy societies. The economic privileges are, of necessity, state-mandated transfers of income from some groups to others. That process indeed has to no limits other than those imposed by politics, but as Andrew Roman writes, there are dangers in provoking too intense a political reaction. At present, I do not see any brakes yet being applied on the demands for new “rights”, meaning privileges granted by law, because the ideology pressing in this direction is too aggressive and the present government is so sympathetic to the ideology.

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  2. Hi Andrew.

    Just a quick note to say I really enjoy reading your blog posts. They are always insightful and this one is clearly thought provoking. Especially to someone like me who is left of centre! So thank you!!

    Cheers

    Jenny

    Jenny Ginder Ginder Consulting 416 525 2136 From my mobile

    >

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  3. I’ve read some commentary that works from the framework that “rights” as originally conceived (at least in the USA) were “rights from” something – a right to be free of some specific interference or obstruction (e.g. discrimination, censorship), and government was the protector of those rights. Where we seem to be going is “rights to” something (e.g. education, living wage, decent housing). A right-from can be handled through legislation, constraining the majority (or even an energetic/voluble minority, I guess) from interfering with me. A right-to must be provided by somebody else and there is no end to it. I’m not wanting to direct your topics, but I know I’d sure be interested in your general thoughts on this matter, in addition to what you’ve done here.

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  4. Thank you, Robert Lyman, Jenny Ginder and Isabel Gibson, for your kind words and your ideas. You have inspired me to write more.

    Concepts of rights vary by country. So does the language used to describe them. Our Canadian constitutional protection is called the Canadian Charter of Rights and Freedoms. Although the words “rights” and “freedoms” are often used interchangeably, there may be minor differences. Our Charter lists seven distinct categories of rights and freedoms, including uniquely Canadian features like Official Languages Rights.

    To choose a well-known example, accommodation open to the public, the owner of a hotel or restaurant has the right to decide who to admit to the premises, but that right is not absolute. It is trumped by the right of a person seeking admission not to be discriminated against on the basis of race, religion or other prohibited grounds of discrimination.

    Conceptually, there is a difference between rights and privileges, but in practice there is no bright line separating them. Today’s privileges have a tendency to become tomorrow’s rights. While we may classify rights as constitutional, legal or economic, they can also be classified as positive or negative. This comes to us from Oxford philosopher Isaiah Berlin’s 1958 speech and pamphlet titled “Two Concepts of Liberty”: freedom from … and freedom to … .

    These are often two sides of the same coin. The freedom from discrimination on the basis of race is the reciprocal of the freedom of the hotel owner to discriminate in who is/is not admitted to the hotel. Discrimination itself is not a bad thing. If someone can’t pay for the hotel room and isn’t admitted for that reason that is discrimination, but not discrimination on a prohibited ground.

    And these two concepts of liberty often have different consequences, depending upon the circumstances of the individual. As Anatole France wrote:

    “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.”

    For a rich person to be deprived of the freedom to sleep under a bridge is meaningless, while to a homeless person it may be the deprivation of much-needed shelter.

    With the replacement in recent years of many previous occupations by robotics and artificial intelligence, we are beginning to see advocacy for a Universal Basic Income, or a Guaranteed Annual Income as it is sometimes called. Whether a society can afford to accept these claims as economic “rights”, thus recognizing a “freedom from want”, is an economic issue as well as one of distributive justice. Enshrining such a right in law will involve a substantial redistribution of income. Yet the arguments in favour of recognizing such new rights are usually based on morality (social justice) rather than net economic benefit.

    Words like freedom and liberty have huge emotional impact. That is why Richie Havens’ haunting 1969 Woodstock song titled “Freedom” repeats the word Freedom no less than eight times in each chorus. Words like these are emotional buttons to be pressed, to evoke the emotional response of enthusiastic acceptance. The U.S. Constitution, to which Americans pledge allegiance, protects the rights to life, liberty and the pursuit of happiness. Section 7 of the Canadian Charter protects the rights to life, liberty and security of the person.

    But these rights are the floor, not the ceiling in the edifice of rights. In fact, there is no ceiling, so we can expect continued advocacy for new rights. Given the reciprocal nature of freedom from and freedom to, once we get past fundamental human rights like life, liberty and security of the person, almost every new right granted comes at the expense of others. Inevitably, governments or courts must decide whose freedom will be sacrificed to whom, and at what cost, for what benefit.

    These new rights often involve the transfer of income from involuntary donors to government-selected recipients. This may be compared to a bar in which everyone is given drinks, but at the end of the night the tab only goes to a few of the bar patrons. Sooner or later they will get tired of being stuck for the drinks.

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  5. Andrew, I’m a tad unconvinced of your claim that the government of Canada now recognises trans women as women. What’s at issue is whether self-identification is criterial or merely evidential. If my declaring myself a woman is only EVIDENTIAL of my being a women, then that means my claim is defeasible. But not if it’s criterial. Not, that is, if my declaring myself a woman is a performative. The government CAN’T take the latter position, because if it does then any dirty ol’ man – myself included were I so inclined – could not be turfed from the girl’s locker room. I could not be sent to a male prison, I could not be drafted. I could not be barred from competing in women-only sports. The list goes on and on. So self-identification CAN’T be criterial. I realise that the law is sometimes an ass, but not THAT much of an ass. What say you? – Paul Viminitz

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    • Paul,

      I hadn’t intended to make this article focus on human rights law or trans women, but since you asked, here is more than you probably wanted to read.

      The evidential/criteria distinction doesn’t work in law. Every claim is defeasible, for a variety of legal and procedural reasons. Although the theory of the common law has been described as analogous to building legal walls with a pile of bricks, the criticism was that these bricks are not made of brick but of Jell-O, and slide all around. The hard edges of the law are softened with discretion, and the judge’s ability to decide to be bound by, or not bound by, any particular precedent.

      If you were to declare that your gender identity is that of a woman and therefore you intend that to be your gender expression there is no need for you to prove that to be true objectively. Self-identification matters. The federal and provincial governments across Canada have legislated exactly the legal position you say they can’t take. So regardless of a person’s physical appearance, their right to decide and live their gender expression as that of a woman may be upheld, granting admission to the women’s locker room, women’s prisons and the right to compete in what is commonly called women’s sports. But don’t take my word for this. Look at the law.

      At the federal level we see this:

      Canada Human Rights Act

      Prohibited grounds of discrimination

      3 (1) For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.

      Denial of good, service, facility or accommodation

      5 It is a discriminatory practice in the provision of goods, services, facilities or accommodation customarily available to the general public

      (a) to deny, or to deny access to, any such good, service, facility or accommodation to any individual, or

      (b) to differentiate adversely in relation to any individual, on a prohibited ground of discrimination.

      Canadian provinces have substantially similar legislation. For convenience, here is Ontario’s law (Alberta’s Human Rights Act s. 4, imposes the same requirements):

      Ontario Human Rights Code

      Services

      1 Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.

      Accommodation

      2 (1) Every person has a right to equal treatment with respect to the occupancy of accommodation, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status, disability or the receipt of public assistance.

      Orders of Tribunal

      45.2 (1) On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:

      1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

      2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

      3. An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.

      These laws are enforced by large and well-financed human rights commissions that conduct investigations, using tribunals that make quasi-judicial decisions and impose significant monetary and other penalties.

      Ontario’s Commission has provided a detailed brochure explaining in layman’s language how it applies the law in practice.

      Gender Identity and Gender Expression Brochure

      Under the Ontario Human Rights Code (the Code) people are protected from discrimination and harassment because of gender identity and gender expression in employment, housing, facilities and services, contracts, and membership in unions, trade or professional associations.

      Gender expression is how a person publicly presents their gender. This can include behaviour and outward appearance such as dress, hair, make-up, body language and voice. A person’s chosen name and pronoun are also common ways of expressing gender.

      Trans or transgender is an umbrella term referring to people with diverse gender identities and expressions that differ from stereotypical gender norms. It includes but is not limited to people who identify as transgender, trans woman (male-to-female), trans man (female-to-male), transsexual, cross-dresser, gender non-conforming, gender variant or gender queer.

      Everyone has the right to define their own gender identity. Trans people should be recognized and treated as the gender they live in, whether or not they have undergone surgery, or their identity documents are up to date.

      Trans people can have their name or sex designation changed on identity documents and other records. The criteria and process should not be intrusive or medically based.

      Trans people should have access to washrooms, change rooms and other gender specific services and facilities based on their lived gender identity.

      Dress code policies should be inclusive and flexible. They should not prevent trans people and others from dressing according to their expressed gender.

      Organizations should design or change their rules, practices and facilities to avoid negative effects on trans people and be more inclusive for everyone. Any exceptions must be legitimate in the circumstances, and trans people must be provided any needed accommodation unless it would cause undue hardship.

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  6. My daughter is very much in favour of the Universal Basic Income. I asked her what effect such a thing might have on her 19 year old son’s motivation to get part time work while going to post secondary school. I also suggested she could test out the concept by giving her son a Basic Income for, say, the next ten years. She didn’t seem to want to do that…

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    • I have read somewhere that the UBI would be so expensive that the amount of annual income it could provide to those likely to be eligible for it would be below the poverty line. If it was any higher the take-up rate would rise exponentially.

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      • Poverty Line – I expect many of us lived below it back in our earlier adult days, yet we felt rich compared to how our parents lived. My father-in-law talks about taking lard sandwiches to school for lunch. He left school after about Grade 9 to work full time on the farm – so that his brother could stay in school to get a diploma in education.

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    • Of course she doesn’t, Margy. She wants Somebody Else, somebody “richer”, to provide it.
      After all, the best taxes are those that only other people pay.

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