James Manson

(note that in this podcast I read this intro in the audio version, so if you plan to listen, you can save the time and eyestrain)

The idea of “god-given freedoms” is at the basis of classical liberalism. These are often referred to as “negative rights”.

I touched on this issue briefly in a previous substack. Negative rights can be thought of as freedom FROM something. The right to be left alone - freedom from violence; the right to say what you want - freedom from censorship; the right to not have your things stolen - freedom from theft. Basically the right not to be interfered with. These require nothing from anyone else, other than that they leave you the heck alone.

On the other side of the rights divide is positive “rights”. And I use scare quotes to suggest that these are not clearly “rights”. I would actually call them privileges. These are things like the “right” to healthcare, the “right” to clean water, the “right” to welfare. If these are indeed “rights”, then it is mandatory that someone else provide you these things if you do not have them.

During this podcast, the next in our 2023 FSIM speaker’s series, James Manson - a lawyer who is working with Charter Advocates Canada to preserve civil rights - dives into this very complex issue with me.

What does the Canadian Charter of Rights and Freedoms say about positive rights? Where does the idea and the institutional support for positive rights come from?

In a society where we cannot avoid interaction, rights often conflict. I want to say what I think, but if you have the “right” not to be offended then my freedom of speech is impacted. If you have the “right” to do drugs and set up a tent in the park, my freedom to use the park is impacted. You want the “right” to play AC/DC at 120 decibels at 4AM, but I want the right to peacefully enjoy my property. I want my handicapped child in a regular classroom, but that child will require a disproportionate percentage of the teachers time and decrease the amount of time the teacher spends with the other kids. Who’s “rights” should prevail in these battles?

Human Rights Commissions (which fall in an odd grey zone outside the rules of the regular court system, with its normal checks and balances) have thrown a wrench into the gears of normal societal functioning in Canada. You would be hard pressed to find a person in Canada today who would say that unfair discrimination is wrong. But HRC’s have been given the power to decide how “discrimination” or “being treated fairly” are defined. Is it discrimination to fire a male teacher who likes wearing Z-cup prosthetic breasts to work? Is it discrimination to fire an alcoholic truck driver who crashes your truck? Is it discrimination for a comedian to make a joke about a handicapped person? Or for a bar-owner to remove a person without proper ID from his bar? In Canada it now is.

When does being reasonably discriminating become unfair discrimination? In Canada, the answer is “when the HRC commissioner tells you it is”.

As James mentions, the provincial HRC’s are adjudicated by appointed - not elected or accountable - commissioners and generate regulations such as the Ontario’s HRC’s 38-page legalese policy document on gender discrimination. That’s just one of many documents, full of things that employers and others “should” do. Although not laws per se, an individual or business can be brought in front of a tribunal - a process that costs the defendant lawyers and time but is free for the complainant. If found in violation of the code that the HRC has set, a defendant can be fined. And, to put it mildly—as James mentions—HRC functionaries are not chosen from the centre or right of the political spectrum.

And if HRC’s were not enough to tilt the scale of positive versus negative rights, professional regulators, unions, the civil service, universities, health authorities, and other government-funded/empowered/regulated bodies all now undermine basic freedoms in their own ways. Want to get into medical school? Tell us how you plan to be “anti-racist.” You want to work in the civil service? Don’t argue with the diversity trainer. If you want to be in certain jobs, you have to agree to abandon your right to express your disagreement with approved political views.

This is a complex and thorny subject. What is the correct balance of positive versus negative rights? Whichever direction we head in, there is no utopia at the end of the road. But at this point in history, it’s clear to me that the scale is wildly tilting away from basic civil liberties.

Libertarianism may not be a destination that we all agree upon, but I would argue that at this point it is the right direction in which to point the nose of our cultural boat.

We look forward to hearing James flesh this out more at FSIM 2023, and I thank him for spending this time with me.

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