Bill Affirming the Values of Secularism and Religious Neutrality of the State Tabled in Quebec Legislature

Bernard Drainville, Quebec’s Minister responsible for Democratic Institutions and Active Citizenship, has finally introduced legislation affirming the values of secularism and religious neutrality with respect to the province of Quebec. The name of the “Quebec Charter of Values” has changed, but the substance remains essentially intact.

Bill 60, Charter affirming the values of state secularism and religious neutrality and of equality between women and men, and providing a framework for accommodation requests, was tabled in Quebec’s national assembly on November 7, 2013.

We have written at length on the charter of values proposal on Slaw. Instead of providing a complete overview of the Bill, I will just highlight some important points and differences between the initial proposal and the Bill.

Bill 60 proposes the following.

In the exercise of their functions, public sector employees will have to exercise restraint with regard to expressing their religious beliefs. The Bill creates duties of religious neutrality and restraint for public sector employees by forbidding during working hours the wearing of headgear, clothing, jewelry or other adornments which, by their conspicuous nature, overtly indicate a religious affiliation. Existing employees will have one year to comply with this prohibition. However, employees hired after the law comes into force would be prohibited from wearing noticeable religious symbols from the day they start, and this condition will be deemed to constitute an integral part of their employment contract. The one-year transition period could be extended to four years for employees working in health and social services, municipalities, colleges and universities, but employers of these employees must detail in writing to the government how they intend to conform to the law by the end of that period. This transition period replaces the withdrawal clause contained in the initial proposal.

Before a public body can take disciplinary action against a public sector employee who fails to comply with the restriction on wearing a religious symbol or clothing, the employer must remind the employee of her or his obligations and encourage compliance. It will be up to the individual public body to decide on disciplinary measures.

The duties of neutrality and restraint in religious expression, including the restriction on wearing religious symbols and clothing, do not apply to employees or volunteers who provide spiritual care and guidance services in a centre operated by a public institution under the Act respecting health services and social services (chapter S-4.2) or in a correctional facility under the Act respecting the Quebec correctional system. Nor do these duties apply to persons in charge of providing instruction of a religious nature in a university-level educational institution or providing spiritual care and guidance services in such an institution or in a general and vocational college.

Bill 60 would amend the National Assembly Act to clarify the rules surrounding the presence of religious symbols in the assembly and the wearing of religious symbols by members. The government wants to reach a consensus on these matters among all legislators. If a member of the national assembly wishes to wear a religious symbol, there must be unanimous consent from the assembly. The assembly will conduct a consultation to decide whether the crucifix will continue to adorn the wall of the chamber.

The Bill would also make it mandatory for individuals to have their faces exposed when giving or receiving service from the government and public sector. The Bill would obligate each public body to develop a policy to describe how it would apply this obligation. A public body would be required to refuse an accommodation request if the requested accommodation would cause a security risk, prevent identification or otherwise be inappropriate because of the level of communication required.

A public body would also be able to require that any person, partnership or business with which it has entered into a service contract or subsidy agreement fulfil one or more of the duties and obligations set out in the Bill, depending on the nature and length of the contract or agreement.

Public bodies and government agencies would have to adopt policies to implement the charter, and post those policies on their websites if applicable. The policies should integrate the objectives of religious neutrality of the state and management of religious accommodation requests into the daily functioning of these institutions.

The policy would also state and define the duties of employees regarding religious neutrality and restraints in the exercise of their functions, including:

• The obligation to perform their tasks with all due objectivity, regardless of their religious opinions and beliefs
• The obligation to refrain from all forms of proselytization
• The restriction on wearing religious symbols

The implementation policy must also state that employees of the public body are required to have their face uncovered. The policy must specify, for persons requiring the services dispensed by the public body, how the obligation to have one’s face uncovered applies during the delivery of services. The public body’s policy would also have to state and define the rules for handling accommodation requests on religious grounds, as follows. Upon receiving an accommodation request on religious grounds, a public body must make sure that:

1. The accommodation request results from the application of section 10 of the Quebec Charter of Human Rights and Freedoms (chapter C-12);
2. The accommodation requested is consistent with the right of equality between women and men;
3. The accommodation is reasonable in that it does not impose undue hardship on the public body with regard to, among other considerations, the rights of others, public health and safety, the effects on the proper operation of the public body, and the costs involved; and
4. The accommodation requested does not compromise the separation of religion and state or the religious neutrality and secular nature of the state.

When an accommodation request on religious grounds involves an absence from work, a public body must specifically consider:

1. The frequency and duration of absences on such grounds;
2. The size of the administrative unit to which the person making the request belongs, the ability of the unit to adapt, and the interchangeability of the public body’s workforce;
3. The consequences of the absence on the work of the person making the request, on the work of other personnel members and on the organization of services;
4. The possible arrangements, including modifying the work schedule, accumulating or using a bank of hours or vacation days, or undertaking to make up the hours missed; and
5. Fairness with regard to the employment conditions of other personnel members, including the number of days of paid leave and work schedules.

If an accommodation request on religious grounds concerns a student attending an educational institution established by a school board, the school board must take into account the objectives set out in the Education Act, in particular to make sure that the request is consistent with and does not compromise:

1. Compulsory school attendance;
2. The basic school regulations established by the government;
3. The school’s educational project;
4. The mission of schools, which is to impart knowledge to students, foster their social development and give them qualifications, in keeping with the principle of equal opportunity, while enabling them to undertake and achieve success in a course of study; and
5. The ability of the institution to provide students with the educational services provided for by law.

However, public employees would not be permitted to request accommodation on religious grounds with respect to the duties and obligations regarding religious neutrality and having one’s face uncovered.

The policy would further have to spell out what will happen if employees fail to comply with the law and the rules.

The policy must be reviewed at least once every five years in order to evaluate the application of the measures it contains and make any amendments the organization considers appropriate.

The minister responsible for the Educational Childcare Act would have to develop an implementation policy for institutions that provide childcare or subsidized home childcare providers under the Act. In order to facilitate social cohesion and the integration of children without regard to social or ethnic origin or religious affiliation, the policy must provide, among other things, that:

• Children’s admission must not be related to their learning a specific religious belief, dogma or practice
• The objective of educational activities and communication cannot be to teach such a belief, dogma or practice
• A repeated activity or practice stemming from a religious precept, in particular with regard to dietary matters, must not be authorized if its aim, through words or actions, is to teach children that precept

The minister would have to make the implementation policy available to the public, to bodies governed by that Act and to persons recognized as subsidized home childcare providers under that Act, and post it on the minister’s website.

The Bill would also give the French language the same primacy in the Quebec Charter of Human Rights and Freedoms as equality between men and women and the separation of religions and the state as fundamental values.

If enacted, the new rules would take effect one year after the law is adopted.

The opposition parties agreed to the tabling to avoid a non-confidence motion in the government, and it will proceed to committee hearing. Public hearings will start January 14, 2014—where the public will be invited to comment. Well maybe!

Interested stakeholders, organizations and the public wishing to be heard at the hearing must submit a brief to the Secretary of the Commission Valérie Roy on or before December 20, 2013. Those who do not submit briefs but still want to be heard may submit a request to the Secretary no later than December 20, 2013.

Thereafter, members of the Commission choose among the briefs that have been submitted by the interested stakeholder, organization or member of the public to hear. In addition, any person who wishes to express its opinion on this subject can send an online comment on the Commission’s web page.

Depending how long the public hearings take, it could be well into spring before the Bill comes back to the legislature for second reading, and will need support from the opposition to pass.

If the Bill is enacted with or without major alterations, the federal government has already stated that it will immediately file a court challenge on grounds that it is discriminatory and incompatible with Canada’s Charter of Rights and Freedoms and Quebec’s own charter of rights.