Quebec Charter of Values Receives Further Critique by Legal and Political Organizations

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.

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Comments

  1. Drainville is quick to claim the support of former Supreme Court Justice Claire L’Heureux-Dubé but there is actually not much evidence to support it. Back in September, it was claimed her name appeared in the membership list of a pro-charter organization. Nearly a year ago, she stated in a radio interview that some individual rights could be restricted for the greater good. I have not been able to find any reports where she made direct statement in support of the charter or that she has made any statements on any issue since the charter was announced.

    As support goes, this is pretty thin. Especially when compared to the extensive brief of the Quebec bar Association.

  2. It really is a real head scratcher how the PQ figures that the provisions of the Charter of Values regarding religious clothing can possibly withstand a challenge under the Charter of Rights. The case law all seems to point one way on that question. In fact it is so puzzling that the most logical conclusion is that they fully expect it to be struck down as a means of increasing political opposition to federal institutions and by extension increasing support for separatism.

  3. David… here is recent proof of former Supreme Court Justice Claire L’Heureux-Dubé support of the Quebec Charter of Values… it is in Le Devoir and in French

    http://www.ledevoir.com/politique/quebec/398846/un-grand-pas-vers-l-egalite-homme-femme

    I will give a brief translation of the gist of the article… She said in an interview with Le Devoir: “Bill 60 – including banning the wearing of religious symbols for state employees – does not infringe on the freedom of religion.”

    “Religion is first and foremost an inner commitment, a belief,”… Thus, “religious symbols are part of the display of this religious belief and not a religious practice.”

    In this same article she is clearly in disagreement with the Barreau du Quebec’s position and criticism of the Quebec Charter of Values.

    Lastly, she is challenging the perception that any charter of secularism would certainly be invalidated by the courts. “The judges who will have to consider Bill 60 will find it difficult to ignore the social context specific to Québec in which the charter was adopted.”

    As support goes not thin at all!

  4. Yosie,

    As you know, the merit of an argument depends on its content, not its presenter.

  5. David you are entirely right (up to a certain point)… that was not the basis of my comment… David Anderson needed proof of her support of the Charter… now all you got it!

  6. Wrong David :-)

    If the quotations in the Le Devoir piece are accurate and not out of context, she supports the Charter.

    She’s also given an interview that would have made Humpty Dumpty blush, and forgotten she’s no longer one of the Red Queens. She’s forgotten that while she can still claim that, when she uses a word, it means exactly what she says it means and nothing it else, she no longer has the power to do anything about the head of the person who disagrees. Once upon a time, in the last millennium, she wrote a very witty article comparing common law and civil law forms of legal analysis based on the distinction between “the reason of authority” and”the authority of reason”. If the Le Devoir piece is accurate, she’s trading too much on her perception she still has the former, at the expense of the latter.

    In case I’ve been too elliptical: her entire analysis is a house of cards built on the argument that one can separate religious belief from the all symbols of religious belief. Let’s assume for argument’s sake, that this passage in Le Devoir , translated is accurate, though I’d like to know what the editors took out between “belief” and “religious”.

    “Religion is first and foremost an inner commitment, belief ” , she says in an interview with Le Devoir . Thus, “religious symbols are part of the display of his religious beliefs and not a religious practice”

    « La religion est d’abord et avant tout un engagement intérieur, une croyance », explique-t-elle dans un entretien avec Le Devoir. Ainsi, « les signes religieux font partie de l’affichage de ses croyances religieuses et non pas d’une pratique de la religion »

    Then, of course, there’s her secondary claim that even if the Charter does limit religious freedoms, the limitations are valid limitations in both Quebec and Canadian society.

    Cheers,

  7. Since I have to clarify David Cheifetz… No… it was not the wrong David… my first comment was to the right David… David Anderson in answer to his comment… which is to provide proof that former Supreme Court Justice Claire L’Heureux-Dubé does support the Quebec Charter of Values…

    My second comment was to you David Cheifetz in answer to your comment explaining my comment to David Anderson… I have made it clearer!

  8. Madame L’Heureux-Dubé fails to note that some religions do require display of religious symbols (at least the wearing of certain clothing that the proposed Charter will take as symbols), while others do not. So her distinction between the display of symbols and the practice of religious belief is wrong – for some religions. The proposed Charter discriminates against religions that do have those requirements.

    Even where the religion does not require particular clothing or symbols, some adherents foreseeably tend to wear or display them, so the disparate impact is very clear.

    No doubt her argument that the ban will survive scrutiny is based on some purported need of Quebec to legislate religious neutrality because of its history of church interference in politics and public life, up to the 1960s.

    But:
    (a) There is no evidence that under current law, any public servants in Quebec are discriminating against any members of the public on the basis of the public servants’ religion.

    (b) There is no evidence that public servants who are neutrally dressed are less likely to discriminate against any members of the public on the basis of the public servants’ religion, than they would if they wore ‘ostentatious’ symbols of their religion.

    (c) There is no evidence that public servants who wear discreet symbols (rather than ostentatious ones) of their religion are less likely to discriminate as above.

    (d) It is arguable that public servants are more likely to discriminate on the basis of religion against recipients of their service who themselves are wearing symbols (ostentatious or not) of their religious beliefs. So should the proposed Charter not require that anyone intending to receive any public service or attending any public office dress neutrally?

    One presumes that Madame L’Heureux-Dubé finds the proposed Charter attractive because of its support of gender equality – a longstanding concern of hers. But could the proposed Charter’s (intended) effect of reducing perceived undue pressure on Muslim women to cover their hair or face be achieved in some less drastic and punitive way? And is it possible that some such women actually wear such covering by their own unforced choice? Is it appropriate public policy to put pressure on this one particular aspect of the impact of religious belief on one part of the population, and by a means that will without any doubt force some of them out of their jobs, without regard to their performance of those jobs?

    Her support for the proposed Charter does not persuade me to support it…

  9. I haven’t read the Charter of Values; but, I guess it’s safe to assume that Quebec will not be hosting a multicultural day as there are some cultural outfits that are tied to religion and some religious outfits that are more influenced by culture than religion.

  10. John,

    Taking L’H-D’s analysis at face value, she should agree that a law requiring all people employed by the Quebec gov’t to work nude is at least prima facie constitutional (under that analysis) since all clothing can be seen as a merely a symbol of some religious belief. Whether there are valid reasons to limit the reach of that conclusion is a separate issue.

    If you want some fun (?) substitute gender for religion in L’H-D’s analysis, and ponder what the symbols would be that might have to be removed. And how.

    Cheers,

    David

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