The furor around York University’s recent decision to overrule a professor’s attempt at balancing competing human rights has largely missed a crucial point – accommodation isn’t a trump card.
The Ontario Human Rights Commission actually anticipated this sort of clash years ago and started preparing for it back in 2005. In 2012, the commission introduced a groundbreaking policy on just how institutions, organizations and individuals should interpret the Human Rights Code to prevent a “hierarchy” of rights from developing.
Ironically, they unveiled their “Policy on Competing Rights” at York University of all places.
“The policy promotes the importance of constructive dialogue and provides step-by-step guidance to help organizations address challenging situations in which human rights appear to be in conflict,” said Noël Badiou, director of York’s Centre for Human Rights at the time.
Perhaps school administrators should have paid more attention to the fine print.
The policy, which in fact was developed following extensive consultations, research and even an initial policy dialogue with the university, provides a thorough outline of just how competing rights should be considered and balanced. The university administration would do well to go back and give it a thorough read. In particular, the section detailing legal principles clearly states that “no rights are absolute.” Simply requesting an accommodation based on one’s right to religious freedom was never meant to lead to an automatic green light.
In fact, context looms large in this discussion. The way things went down at York University would have us all assume that our cherished values of equality, democracy, freedom of expression, etc., will be eroded by a system that seeks to grant certain rights at the expense of others, no matter what the consequences to society at large. Reading the Ontario Human Rights Code along with the policy quickly puts that assumption to rest. Further, that dynamic hasn’t been the reality in the courts where these conflicts have played out over several decades.
“There have been cases where a person’s objections to what they see as a violation of their rights have not been successful because their views are not consistent with society’s underlying values on human rights and equality,” reads the policy. “Decision-makers should apply a contextual analysis that considers constitutional values and societal interests including equality rights of women, negative stereotyping of minorities, access to justice and public confidence in the justice system.”
There, the policy is citing the well-known case of R. v. N.S., the woman who wanted to testify in court with a niqab. In that situation, her Charter right to freedom of religion came into conflict with the accused’s various Charter rights around fundamental justice. The courts had to balance these competing rights. It wasn’t an open-and-shut accommodation.
The trouble for diverse communities is that cases like York alarm society at large that hard-won gains will be clawed back to appease a tiny minority with unreasonable demands. The impression is that our legal frameworks are not prepared for the onslaught.
These fears play right into the xenophobic justifications for limiting the freedom of religion of others, as displayed in the whole values charter debate in Quebec. “A lot of people have been afraid to speak out against unreasonable accommodations made to religious groups by public institutions … and who are now saying, ‘Enough is enough,’ ” commented Parti Québécois minister for democratic institutions Bernard Drainville following the York incident.
What we’ve had enough of is the sensationalizing of the give-and-take that is expected in any multicultural, diverse society. On the ground, we are all expected to read the rules, understand their spirit and come to logical solutions grounded firmly in universal principles.
York University’s administration has done us all a disservice by skipping its required reading.
Amira Elghawaby is a journalist and human rights advocate.