On October 17, 2013, Quebec’s Commission des droits de la personne et des droits de la jeunesse released an opinion on the government’s policy paper, Orientations gouvernementales en matière d’encadrement des demandes d’accommodement religieux, d’affirmation des valeurs de la société québécoise ainsi que du caractère laïque des institutions de l’État (Charter of Quebec Values) previously discussed here and here.
In a 27-page opinion (PDF, English), the president of the commission, Jacques Frémont, states that he believes (along with numerous others) that several proposals in the government’s policy paper contravene Quebec’s Charter of Human Rights and Freedoms and infringe upon established fundamental rights and freedoms. In particular, the commission considers that prohibiting the wearing of “conspicuous” religious symbols by public sector employees does not meet the Quebec Charter test and that the proposal to formalize “religious” accommodations could restrict the scope of accommodations granted on the basis of other grounds of discrimination, including for disabled people.
The commission has further stated that if Quebec enacts this Charter of Values, it would contravene international commitments to which the province adheres. These include the ratification of The Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights, among others that strongly influenced the spirit and language of Quebec’s Charter of Human Rights and Freedoms, adopted in 1975. Consequently, the commission argues, the proposed prohibition on conspicuous religious symbols would infringe directly not only upon the right to exercise one’s freedom of religion, but also upon the freedom of speech and the right to equal access to employment.
As to the proposal to formalize religious accommodation; the goal of clarifying concepts of reasonable accommodation and undue hardship on the basis of shared values and core community values in matters solely of a religious nature seems inconsistent with the current legal framework. The commission questions the need to define and formalize a legal duty to reasonably accommodate in the Charter when that obligation is already defined in jurisprudence and widely applied.
Lastly, the commission adds that for the government’s proposals to take effect and be valid, it would have to invoke the notwithstanding clause of the Canadian Charter of Rights and Freedoms, an exercise which must meet strict conditions as to substance and form, and that Quebec would fail in part because of Quebec’s adherence to the above-cited international agreements.
It is important to note that the commission also believes that the alternative position offered by Québec solidaire in Bill 398 contravenes the Quebec Charter.
The commission’s opinion is not legally binding, but nonetheless makes a compelling argument (according to some legal experts) for Premier Pauline Marois’s Parti Québécois government to reconsider a measure that would likely embroil Quebec in years of legal battles.
Bernard Drainville, the Minister responsible for Democratic Institutions and Active Citizenship, said he will take the commission’s comments into consideration as he prepares the final version of the Charter of Quebec Values. However, Drainville also challenged the prediction that the proposed charter would be overturned in court.
“The model of secularism that we propose has the support of eminent jurists like Mrs. Claire L’Heureux-Dubé, former Supreme Court of Canada judge, and Mrs. Huguette St-Louis, the former chief judge of the Quebec Court who also agrees that the secular model we propose is quite reasonable and justifiable in a democratic society,” Drainville said.