Human Rights and Québec’s Charter of Values - LawNow Magazine

Human Rights and Québec’s Charter of Values

Human Rights Law ColumnOn Thursday, November 7, 2013, the Québec government tabled its Charter of Values, Bill 60. The Bill provides that public body personnel must maintain religious neutrality in the exercise of their functions. It also restricts personnel from wearing objects “such as headgear, clothing, jewelry or other adornments which, by their conspicuous nature, overtly indicate a religious affiliation” (section 5). Both personnel of public bodies and those receiving services from public bodies must ordinarily have their faces uncovered (section 6). It appears to ban headgear, such as turbans, kippahs, hijabs, niqabs and other such clothing, as they indicate a religious affiliation. Under the Bill, the National Assembly can decide whether the crucifix in the Legislative Assembly will remain as a reminder of the province’s Roman Catholic heritage.

How does the proposed new legislation fit into existing Canadian human rights law? While Canadian governments are bound by the Canadian Charter of Rights and Freedoms (“Charter”) each province has individual human rights laws that apply to selected activities of individuals and governments. Unlike the human rights laws in most other jurisdictions, which focus on discrimination, Québec’s law, the Charter of Human Rights and Freedoms, RSQ, Chapter C-12(“Quebec Charter”), covers a broad array of rights and freedoms (similar to the Charter). It even includes rights, such as property rights, that are not included in the Charter. Many rights cases arising in Québec rely on both the Charter and the Quebec Charter.

In addition to passing the headgear and clothing requirements set out above, Bill 60 seeks to amend the Québec Charter as follows:

41. Section 9.1 of the Charter is amended by adding the following sentence at the end of the first paragraph: ‘In exercising those freedoms and rights, a person shall also maintain a proper regard for the values of equality between women and men and the primacy of the French language, as well as the separation of religions and State and the religious neutrality and secular nature of the State, while making allowance for the emblematic and toponymic elements of Québec’s cultural heritage that testify to its history.’

The idea behind this is that everyone, regardless of belief, has the right to participate fully in Québec society.

Both the Québec Charter and the Charter guarantee freedom of religion. The current minority government in Québec, the Parti Québécois, seeks to amend the Québec Charter and add other legislation to include the right to be free from religion, especially for all aspects of the government. In addition, some of the accommodations that currently exist in the Québec Charter for religion will be curtailed (Bill 60, section 42). Interestingly, current Canadian case law interpreting the Charter has indicated that freedom of religion includes freedom from religion (see: R v Big M Drug Mart Ltd, [1985] 1 SCR 295).

The Québec government’s reasons for the initiative include:

  • controlling unreasonable faith-based exceptions from societal and workplace rules;
  • guaranteeing equality of the sexes in Québec; and
  • reinforcing the neutrality of the state.

Others who support the initiative note that both the Charter and the Québec Charter allow for laws that make reasonable infringements on constitutional rights (e.g., Charter, section one). No right is absolute. Rights are subject to reasonable limits that are justifiable in a democracy. For example, public employees may have their freedom of expression curtailed by the nature of the job. A teacher cannot publicly support anti-Semitic or other discriminatory beliefs and can be fired if this creates a poisoned classroom environment. The position of the government seems to be that the proposed law is justifiable.

…the proposed law’s commitment to a fully secular state is weakened by the government’s retention of some conspicuous religious symbols, as it makes the law appear not to be even-handed.

The proposed law indicates that being identified as religious will somehow affect the person’s ability to perform his or her job in a fair, impartial manner. In addition, some advocates of anti-oppression and equality for women believe that requiring no “obvious” religious garb is appropriate. Others indicate that multiculturalism is a failed initiative that does not apply in Québec, and thus a laissez-faire approach (such as that in the rest of Canada or in Great Britain) for Québec would be “disastrous”. They advocate the approach taken in France (banning religious garb in public). Finally, some analysts say that if a defence under the Charter or the Quebec Charter fails, the Québec government could invoke the notwithstanding clause of the Charter (section 33), which would permit the law to operate notwithstanding any violation of a Charter right.

Opposition to the initiative is based on academic, political and legal reasoning. Academics and politicians note that the government should separate the secular state and institutions from the individuals themselves (see: Justin Trudeau, “I have Faith in Québec. So Should You” The Globe and Mail, 12 September 2013). Amnesty International has stated that the proposal would violate both Canadian and international law by infringing on freedom of expression and religion (see: Benjamin Shingler, CTV News “Amnesty International slams Québec charter for limiting ‘fundamental rights’”, 21 September 2013).

Some analysts express doubt that the proposed revisions would actually be saved by defences such as Charter section one. Law Professor Carissima Mathem argues that requiring the thousands of people who work for the state to shed their religious symbols “will have an enormous exclusionary impact on the public service and other state institutions.” and states that such a severe effect would have to be justified. Since there is no evidence that religious people are less fit employees, the purpose of the policy would be purely symbolic, making it unlikely to justify infringing a Charter right. Preventing negative perceptions of the neutrality of the state as a whole would also not likely be a sufficient justification. Further, the proposed law’s commitment to a fully secular state is weakened by the government’s retention of some conspicuous religious symbols, as it makes the law appear not to be even-handed (see: Carissima Mathem, ‘What You Should Know About Quebec’s Proposed Law on Secularism” Huff Post Politics Canada (16 September 2013).

Others argue that all of this is a move to encourage separatism and a rift between Québec and the rest of Canada.  What is clear is that Bill 60 does affect freedom of religion, and this is a human rights issue. It will be very interesting to see what happens if this Bill passes into legislation.

 

Authors:

Linda McKay-Panos
Linda McKay-Panos, BEd, JD, LLM, is the Executive Director of the Alberta Civil Liberties Research Centre in Calgary, Alberta.
 


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