By Linda McKay-Panos
There are questions about what is being proposed in Quebec in its new Charter of Values and how this all fits into Canadian 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 those laws in most other jurisdictions, which focus on discrimination, Quebec’s law, 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. It is fair to say that many rights cases arising in Québec seek to rely on both the Charter and the Quebec Charter. Both the Quebec Charter and the Charter guarantee freedom of religion. The idea behind this is that everyone, regardless of belief, has the right to participate fully in our society. It should be noted that, constitutionally speaking, the fact that Québec did not actually agree to the Charter in 1982 has no legal significance because the Supreme Court of Canada indicated that unanimous provincial consent was not required to amend our Constitution; thus, the Charter applies equally in Québec.
The current minority government in Quebec, the Parti Québécois, seeks to amend the Quebec Charter 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 for religion will be curtailed. Interestingly, current Canadian caselaw interpreting the Charter has indicated that freedom of religion includes freedom from religion. See: R v Big M Drug Mart Ltd,  1 SCR 295). While the exact content of the proposed amendments has not yet been released, the government has indicated that “obvious” religious clothing and symbols will be banned in the public service. Headgear, such as turbans, kippahs, hijabs, niqabs and other such clothing will be banned. While the Québec government initially indicated that the crucifix in the Legislative Assembly would remain as it is a reminder of the province’s Roman Catholic heritage, it has recently indicated that this will no longer be the case. In addition, exemptions for application of the Charter of Values to sitting politicians have been removed.
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 Quebec 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 this proposed law is justifiable.
The proposed law seems to indicate that being identified as religious somehow will 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 require that no “obvious” religious garb is appropriate. Some also 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”. These individuals note the approach in France (banning religious garb in public) is the desired approach. See: Allan Woods, “Ex-Supreme Court judge expected to back Quebec values charter” (23 September 2013) The Star Online: http://www.thestar.com/news/canada/2013/09/23/exsupreme_court_judge_to_back_quebec_values_charter.html). Finally, some analysts indicate that if a defence under the Charter or the Quebec Charter fails, the Quebec 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. The Quebec government does not seem to think it is necessary to invoke the notwithstanding clause.
Opposition to the initiative is based on academic, political and legal reasons. 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 Quebec So Should You” (12 September 2013) The Globe and Mail online: http://www.theglobeandmail.com/commentary/i-have-faith-in-quebec-so-should-you/article14266528/. 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 Quebec charter for limiting ‘fundamental rights’” 21 September 2013 Online: http://www.ctvnews.ca/canada/amnesty-international-slams-quebec-charter-for-limiting-fundamental-rights-1.1464689
Further, analysts express doubt that the proposed revisions would actually be saved by defences such as Charter section one. Carissima Mathem (law professor) 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.” She goes on to state 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. This would unlikely be sufficiently important 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 (this criticism may have been addressed in part by recent proposed amendments to the Charter of Values). See: Carissima Mathem, ‘What You Should Know About Quebec’s Proposed Law on Secularism” (16 September 2013) Huff Post Politics Canada Online: http://www.huffingtonpost.ca/carissima-mathen/quebec-values-charter_b_3935543.html
Others argue that all of this is a move to encourage separatism and a rift between Québec and the rest of Canada See: CBC News, Daniel Schwartz Q&A “Quebec’s religious garb debate intensifies” (22 August 2013) Online: http://www.cbc.ca/news/canada/q-a-quebec-s-religious-garb-debate-intensifies-1.1320580
Other resources: CBC News, “5 things Quebec’s values charter would do and 5 it wouldn’t” 10 September 2013 Online: http://www.cbc.ca/news/canada/montreal/5-things-quebec-s-values-charter-would-do-and-5-it-wouldn-t-1.1699316
Daniel Schwartz, CBC News, “Charter of Quebec Values on collision course with Constitution?” (11 September 2013) Online: http://www.cbc.ca/news/politics/charter-of-quebec-values-on-collision-course-with-constitution-1.1699637
What are your thoughts?