Madam Justice Rosalie Abella couldnít be more wrong when she argues, as she did in her recent speech at Osgoode Hall, that critics of todayís courts are motivated by hostility towards the notion of constitutional rights.
As one who is sometimes dubbed a "court basher", my complaint with both the Charter and the courts is that both purport to grant, under the name of "rights", various benefits and advantages that actually have nothing to do with rights. The Charter, the courts and the legislatures have distorted and perverted the meaning of the word "rights" beyond all recognition. In doing so, as Orwell predicted when he invented the mythical Newspeak, they have destroyed both the old concept of genuine rights and the actual existence, in practice, of those genuine rights.
The most fundamental characteristic of those things we define as rights is that they must be universal. If they arenítóif they are granted to certain people or groups but not to others--then the proper description for them is privileges or preferences, not rights.
This narrows the field of rights considerably. This is because one of the corollaries inherent in the concept of rights is that of obligations. Every right claimed by an individual imposes upon the rest of the world the duty of respecting that right.
The only kind of rights that allow all human beings to simultaneously meet these requirements are what philosophers refer to as "negative rights." For instance, the right to life is interpreted in the negative rights tradition as imposing only the duty to refrain from murder. We can all refrain from killing one another without anybody having his or her rights violated.
However, if the right to life is interpreted as a positive right to be provided with food, shelter, clothing and medical care, different consequences follow. One personís "right" to life would impose upon the rest of the world the obligation of providing these material benefits. But these goods and services donít fall like manna from the heavens. They have to be produced by other human beings, who quite literally consume a portion of their lives labouring to produce them. Thus, granting the recipients of these items a right to them necessarily entails denying the producers of these items the right to a portion of their own lives.
Positive rights invariably involve this kind of contradiction. They can never be universal. They divide the population into two camps: the takers and the givers. The former has all the "rights" while the latterís rights are systematically violated.
The genuine human right that has been most frequently violated in recent years by these trendy phony rights is the right to freedom of contract. Traditionally, the law defined a contract as a meeting of minds. For a contract to exist, two opposing parties would have to voluntarily agree on all of the fundamental termsóthe goods or services to be exchanged, the price, the quality, the timing, and so on. If they did not agree, there was no deal, and no obligation arose on either side.
This right to enter into contracts met all the criteria of a traditional negative right. Each personís right imposed on the rest of the world only the duty to refrain from exercising coercion or threats to induce an involuntary acquiescence. This is a duty that we can all meet simultaneously without violating anyone elseís equal right to the same thing.
So-called human rights laws systematically violate the right to freedom of contract. When an employer is forced to pay female employees a pay equity adjustment even though the employees had originally agreed to work for a particular wage, this is not a triumph for human rights. It is the use of the legislature and the courts as bludgeons, as blunt instruments of coercion, to impose the will of one party upon the other in violation of the victimís right to contract freely.
When Toronto print shop owner Scott Brockie was approached by the Canadian Lesbian and Gay Archives to print their stationery, he should have owed them no duty to comply. Mr. Brockie did not wish to print the type of material the would-be customer desired, so they never agreed on the fundamental terms of a contract. That should have been the end of it. Instead, Mr. Brockie was fined $5,000 by a human rights tribunal.
Mr. Brockie is not obliged by law to run a print shop. If he had so chosen, he could have retired from the printing business the day before the gay organizationís representative entered his shop, and no-one could have stopped him. Yet if he is not under any obligation to provide printing services to the world in general, how can he be under an obligation to provide services to this customer in particular?
The Ontario Human Rights Code that violated Mr. Brockieís rights in this manner doesnít even attempt to be universal. It is entirely one-sided, imposing prohibitions against discrimination only on businesses, not on consumers. If the gay group had chosen to patronize a gay-owned print shop because Mr. Brockie is a Christian heterosexual, he would not have been allowed to complain and have them fined $5,000 for discriminating against him on the basis of his religion and sexual orientation.
In short, our so-called human rights codes and equality rights laws are nothing more than a devious method of imposing wealth redistribution under the honourable name of "rights," instead of the more accurate but currently unfashionable name of "socialism."
The Charter of Rights also contains guarantees of life and liberty, but readers should not hold their breath waiting for any Canadian court to rule that the human rights codes just might not be entirely consistent with these concepts.
It is not disdain for genuine
rights that Justice Abella is observing among critics of the court.
Rather, it is the complicity of Canadaís courts in applying, endorsing
and expanding false rights that has earned them the disrespect of so many
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