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.



      Tom Brodbeck is the Sun's city columnist.
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