Although Quebec’s Bill 60 is before committee it is already coming under immense scrutiny by the public and legal experts. This week two reports were leaked to La Presse, prompting the opposition Liberals to demand disclosure of the legal opinions behind the Parti Québécois initiative to enact a Charter of Values.
The legal opinions are likely to be protected by parliamentary privilege, and Bernard Drainville, the Minister responsible for Democratic Institutions and Active Citizenship, still appears confident that the Bill will pass constitutional challenges. Once again, he cited the support offered for the Bill by former Supreme Court Justice, Claire L’Heureux-Dubé.
The recent bouts of political protest have been prompted by reports which were intended to be confidential and for use by committee. The first is by the Quebec Commission on Human Rights, and predicts that the new Charter of Values will increase conflict and litigation in the province, and must be modified extensively before it would be compliant with the Charter of Rights and Freedoms.
According to the Commission, the confusing wording of the Bill is likely to result in workplace managers misunderstanding and misinterpreting the Charter of Values, resulting in workplace harassment and discrimination which will be litigated before them. Following the leak the Commission President, Jacques Frémont, defended their position and reiterated that there are better ways to resolve workplace conflict.
The second report is by the Barreau du Quebec, and is available in its entirety here (in French). This report also questions the constitutionality of Bill 60, emphasizing that state neutrality is not the equivalent of the complete absence of any visible religious beliefs by state employees.
The Barreau even went against the positions of the Coalition avenir Québec and the Bouchard-Taylor commission in stating that religious symbols should be acceptable for judges and police officers. They cited the Federal Court decision (leave to appeal to the Supreme Court denied) in Grant v. Canada (not to be confused with R. v. Grant) where the court concluded,
…the assertion that a visible manifestation of a Sikh officer’s religious faith, as part of his uniform, will create a reasonable apprehension of bias is not based upon any actual concrete evidence.
Similarly with judges, there can be no conclusion of apprehension of biases or lack of impartiality due to religious symbols. The ban enacted by Bill 60 will have the effect of preventing greater diversity in the judiciary.
State neutrality, according to the Barreau, is demonstrated by ensuring that the state does not take sides in disputes on the side of one religion or another. The purpose of the state is to ensure a harmonious expression of individual believes and freedom of conscience. State neutrality is not achieved at the expense of other important constitutional rights such as freedom of expression and religion.
The Barreau indicated that the crucifix in the National Assembly could even create a double standard, promoting religious symbols for one group, Québécois de souche (“old-stock Quebecker”), and excluding the religious symbols of other groups. They cited the Supreme Court of Canada’s holding in R. v. Big M Drug Mart Ltd. to emphasize the Court’s approach to state neutrality and a necessary prerequisite for freedom of conscience and religion. A state may be secular without religious neutrality, or it may be religiously neutral without being secular. The proper analysis should be whether the state’s choices and decisions are influenced by religion, how it treats other religions beliefs, and whether all religions are treated equally.
Without a formal response to the legal arguments challenged against Bill 60 at this time it is difficult to understand how the minority Parti Québécois government intends to justify the measure without invoking Section 33, which they have already indicated they will not do. What does appear to be certain is that the new Charter of Values will play a prominent role in the future of Quebec politics.