Sun, January 2, 2005
Some 'rights' are just plain wrong
By TOM BRODBECK -- Winnipeg Sun
They're funny things in Canada these days. Seems more and more people are
getting more and more "rights" for just about anything under the sun.
Last month, Associate Chief Justice Jeffrey Oliphant ruled that women who want
abortions have the right to force government to pay for their procedures at
private clinics because they can get them done faster than at a public hospital.
It's their Charter right, he ruled.
Gay couples have been granted the "right" to marry by the courts.
The Manitoba Labour Board ruled recently that a salaried worker had a
"right" to get paid overtime by her employer, even though she agreed
when she took the job that the position might include some overtime.
Even inmates have the "right" to vote today.
Rights are being handed out so liberally these days, it's difficult to know what
a real human right is any more.
The traditional definition would probably include such basic rights as
protection from discrimination, the right to a fair trial, freedom of expression
and religion, and the right to peaceful assembly.
It's the type of rights most fair-minded and rational people would agree are
critical in a free and healthy democracy.
Unfortunately, courts have gone far beyond that traditional definition in recent
years in their interpretation of the Charter of Rights and Freedoms.
And it seems people today have the "right" to do and expect just about
anything.
There really is no such thing as a natural human right.
We like to say that something is a "fundamental human right." But it's
only a right if it's prescribed in law by our legislators.
The only reason we have freedom of the press in Canada, for example, is because
it's set out in Sec. 2(b) of the Charter of Rights.
If it wasn't there, we wouldn't have that right.
For example, I don't have the same rights as a woman of colour in applying for
most government jobs in Canada. Most governments discriminate against white
males as part of their affirmative action programs to increase the percentage of
visible minorities in their workforces.
I may think that's a violation of my fundamental rights but it isn't. That's
because the Charter is very clear in Sec. 15(2) which states that the protection
I have against discrimination based on gender and colour is trumped by any
program that "has as its object the amelioration of conditions of
disadvantaged individuals or groups including those that are disadvantaged
because of race, national or ethnic origin, colour, religion, sex, age or mental
or physical disability."
So white guys like me are out of luck.
If your right isn't in the Charter, or some other statute, it isn't a right.
The problem we run into is that while the Charter is specific in some
circumstances, such as the right for any Canadian to live and work in any
province they choose, it's vague in other areas.
It was written like that deliberately to allow the courts to interpret it.
But because there are few limits placed on judges on how they interpret the
Charter, they have the power to actually create new rights where none existed
before, whether that was the intent of the original Charter authors or not.
And that can be a problem.
If you follow through on Oliphant's ruling on abortion clinics logically, for
example, the courts -- if they want to be consistent -- would have to grant the
same rights to a whole host of other medical customers.
Take the child who has to wait a year in extreme pain for dental surgery because
her parents, who are on social assistance, can't afford to get it done
immediately at a private clinic.
Should the courts force government to pay the facility fee at a private clinic
because it's that child's Charter right?
OK, so what if they did? What's next?
The dental work is not an insured service under Manitoba Health and the only
reason the government would have paid this child's doctor fee is because her
parents are on welfare.
What about the guy working for $8 an hour whose child is also waiting in pain
but can't afford the facility fee or the doctor billing because he's not on
welfare?
Is that a Charter violation for the child? Should government be forced to pay
both the facility fee and the doctor billing in that case?
There are endless, similar examples.
The question then becomes, how many "rights" can the courts -- who are
unelected and unaccountable -- create before government becomes insolvent?
It's very unsettling.
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Tom Brodbeck is the Sun's city columnist.
He can be reached by e-mail at: tbrodbeck@wpgsun.com
Letters to the editor should be sent to: editor@wpgsun.com
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