This Guide is designed to provide information to individuals and organizations lacking the wherewithal to retain legal counsel to prepare an analysis of the Bill and its compliance with the Canadian Charter of Rights and Freedoms with respect to the potential impact of the Bill on their operations. It is intended to provide a general overview and reflects my personal views only. It does not constitute legal advice. Those seeking legal advice should retain counsel.
It is worth noting that the normal procedure for the amendment of fundamental laws and the curtailing of rights would require that the Minister of Justice carry Bill 60. In fact, the Ministry of Justice is not responsible for the Bill. This is not, in my view, an accident, since its lawyers would have been placed in a difficult moral and ethical dilemma in terms of the violation of fundamental rights and freedoms, equality rights and international law.
The title of the Bill is
“Charter afﬁrming the values of State secularism and religious neutrality and of equality between women and men, and providing a framework for accommodation requests”
State “secularism” and “religious neutrality” are not “values” in the sense that most people understand them. “Secularism” is a well-established attribute of Western democracies and it describes a political arrangement. Secularism is already the law in Canada in that the Charter guarantees freedom of religion, thus ensuring that no particular religious view can prevail. It further guarantees equality rights, so that neither religious nor secular views can be imposed or given a political advantage.
Secularism seeks to ensure that the state and the government are neutral as regards the religious affiliations (or non-affiliations) of citizens, so that religious views are kept separate from the business of governance and government.
“Religious neutrality” is therefore more than a mere value: it is translated into a fundamental freedom through the Canadian Charter of Rights and Freedoms under section 2. By guaranteeing religious freedom to all, secularism is more likely to be guaranteed for all, and not just for the majority.
At the same time, religious freedoms are protected not only by constitutional law, but also by international law, and by Quebec’s own Charter (at least, until Bill 60 is passed). In other words, the purpose of religious neutrality is to protect the rights of citizens and not to become a tool that can enforce a state view about how citizens should behave. Understood this way, Bill 60 appears to have reversed the constitutional order by making the state the “rights holder” instead of citizens, and allows the state to behave as if it were able to demand that all citizens be or appear to be secular. This violates the understanding in international law that the state is required to respect, protect and fulfill rights.
Equality between men and women: Equality between men and women (gender equality) is already guaranteed by section 15 of the Canadian Charter, and is also enshrined as an interpretive rule or approach to the way in which the Canadian Charter is applied and understood. In addition, the Quebec Charter specifically references equality between men and women in its preamble and already contains protections against discrimination and harassment, equal wages, equal services, and the like. The claim by the PQ government that anything substantive will be added to the existing strong protections for gender equality in Quebec and in Canada is misleading and inaccurate.
A neutral state that is truly successful is one where people of all faiths are committed to the fundamental values of the Canadian and Quebec charters, including equality, and respect for the rule of law. It is a society where people, regardless of what they are wearing on their heads or around their necks, discharge their duties with commitment, integrity, and professionalism. If the Quebec Charter is amended to strip away these protections, the Canadian Charter and international law will still apply.
Providing a framework for equality requests: Much was made in the lead-up to the tabling of Bill 60 about Quebec’s lack of a legal framework for accommodation and of how Quebec needs to follow a French or continental model rather than the British “failed” multicultural model. It is noteworthy that the clause dealing with the now codified “framework” for accommodation effectively replicates existing standards for reasonable accommodation that have been developed in jurisprudence across Canada for the last three decades, a point that was recently made by the Quebec human rights commission in its public document about the Charter of Values.
It is also worth noting that the French approach to equality law, similar to the European framework, does not explicitly use an accommodation framework which was originally a North American legal concept. European law does not, moreover, apply to Canada. A comparative approach is always useful, but it is not a source of law for Canada.
APPLICATION Sections 2, 8, 10 (and Schedules)
Who does it apply to? With few exceptions, Bill 60 would apply to the Quebec public service and all other “public bodies” including municipalities and municipal boards, public institutions (agencies, board and commissions), the Caisse de dépôt, and tribunals.
PQ spokespersons and public advocates of the Bill have said that the Bill is mainly aimed at the public service. This is not true, unless one takes such a wide meaning of “public service” as to strip it of its natural meaning. Here are some examples.
- Cultural institutions: Bill 60 would apply to cultural institutions including the Place des Arts and provincial museums.
- Educational institutions and facilities: It would extend to schools, school boards, CEGEPs, universities, and subsidized childcare services, including private homes where child care workers provide child care services and are subsidized.
- Public transit: Bill 60 would apply to public transit agencies like the STM (bus, metro, commuter trains).
- Health: Health and social service agencies, including not only hospitals and CLSCs but also physicians, dentists, orderlies and midwives who practise in centres operated by a public health or social services institution would be covered.
- Judges: Provincial judges and justices of the peace would also be covered.
- Private and non-profit sector: In a move to widen its application, section 10 of the Bill would extend to an organization that enters into a contract with the government or receives a subsidy. Thus, nonprofits like women’s shelters, homeless shelters, food banks, community group services, and any other organization designated by the government or paid by the government to undertake a service or a project can be forced to comply if so designated by the government.
In a move unprecedented in North America, these restrictions will also apply to members of the National Assembly. As representatives of the people, MNAs are not part of the public service and should not be treated as such.
The Bill would not apply to federal government services, works or undertakings. It does not apply to anyone providing spiritual services or guidance.
The State and Secularism:
Neutrality and Secularism: (Section 1) The Bill states that all public bodies must remain neutral in religious matters. The exception is (Christian) symbols and names that reflect Québec’s historic heritage.
Staff of “public bodies” must remain neutral and must express “reserve” regarding religious views (ss. 3, 4). This provision does not present any human rights issues.
CLOTHING, HEAD GEAR and ADORNMENTS
Section 5: In the exercise of their functions, personnel members of public bodies cannot wear objects such as headgear, clothing, jewelry or other adornments which, by their conspicuous nature, overtly indicate a religious affiliation.
There are no exceptions and sections 3-6 are deemed to be part of employment contracts. It not lawful to attempt to accommodate these types of requests for accommodation (s. 13).
Disciplinary action will result after the first infraction (s.14), indicating progressive discipline, which would lead to firing of people who do not comply.
Commentary: This provision extends more widely than the original formulation of “ostentatious symbols” and covers anything conspicuous (headgear, clothing and personal adornment, ornamental or ritual scars, tattoos, beards, and any clothing deemed to indicate an overt religious affiliation). The government has said that this is acceptable because people are free to have their faith, but not to exhibit it. Unfortunately, this perspective is not consistent with the Canadian Charter of Rights and Freedoms and with Supreme Court of Canada jurisprudence that has affirmed several times that religious freedom includes the right to manifest one’s beliefs.
There are no exemptions. However, there are transitional provisions that give people one year to comply (Section 44).
Municipalities, colleges, universities and health services can seek to extend the “transitional period” for a further four years, for a total of five years (except for police and fire services in the case of municipalities) (s. 45). Discretionary extensions for these categories are possible.
Comment: This is an area of significant concern in the Bill. Not only is headgear prohibited but so is any form of religious clothing or adornment. Terms like conspicuous and overt religious affiliation are not defined. Section 5 is a blanket prohibition, which generally forbids accommodation. As a general principle, blanket prohibitions that are insensitive to context and circumstance violate equality law and religious freedoms.
As noted earlier, the Supreme Court of Canada case law has consistently held that freedom of religion includes not only the ability to personally hold religious views, but also the right to manifest those views. The principles of reasonable accommodation would normally allow for flexibility to allow people who sincerely hold religious views to manifest their religions, in appropriate circumstances. There is no evidence, empirical or otherwise, that the government has put forward to demonstrate that the wearing of the headscarf, a kippah or any form of religious adornment, is inconsistent with a professional environment or with the public service, nor that a person is thereby rendered unable to deliver a professional public service.
While the public service must be professional in address and attire, it has been established for years, at least since 1995 in the Grant case of the Federal Court of Appeal, that even uniforms of law enforcement officials (the RCMP in that case) can be adapted to include religious attributes, while remaining professional and appropriate to the work involved.
Much has been made in public discussion of the negative “impressions” that citizens may have when confronted with people who look different from the majority. It is the first time in Canada that I am aware of where bias and stereotyping have been used as an actual defence to a potential discrimination claim as opposed to serving as evidence of discrimination.
Section 7: Obligation to have the face uncovered: Public servants and others who are subject to the Act must have their faces uncovered.
Members of the public who seek services must have their faces uncovered subject to the organizations’ implementation policy. Accommodation requests will be refused if, in the context, the refusal is warranted for security or identification reasons or because of the “level of communication” required.
Because the STM is covered by the Bill, people travelling on the bus in winter will have to uncover their faces as well. This was probably not intended by the drafters, but is likely an unintended consequence of overreaching and over-inclusive language.
There is no definition of what “level of communication” means.
Commentary: The Supreme Court of Canadian in Hutterian Brethren (2009) decided that it was justified to require photos to be taken for drivers’ licenses, despite the group’s religious beliefs. In that case, the specific statute had demonstrable security objectives linked to driving and identification. In the case of the Charter of Values, however, the government is attempting, through a generic statute, to create a blanket prohibition against reasonable accommodation, apparently relying on the holding that the court will automatically revert to a standard Charter analysis and ignore the requirements of reasonable accommodation. This would, presumably, offend the principles set out by the Supreme Court in R v. N.S.
In other words, by placing a discriminatory provision in the law, the government may be attempting to do an end run around the reasonable accommodation rule that would otherwise apply.
Section 8 Extends the application of sections 3 to 6 to judges and justices of the peace. It is not clear what the implications would be for the independence of the judiciary.
ACCOMMODATION TO THE POINT OF UNDUE HARDSHIP
How to handle religious accommodation:
Section 15(2) says that accommodation requests must respect equality between men and women. This is actually already the law in Quebec and in the rest of Canada, but the section is intended to trump all other human rights grounds or rights and freedoms. In this respect, the section creates a hierarchy of rights, which is inconsistent with international and national human rights law.
Section 15(3): Section 15(3) of the Charter codifies the law in Quebec and in the rest of Canada based on three decades of case law. Contrary to what the Preamble says, there are in fact clear guidelines in Canadian law, but Quebec had just not formally codified them yet.
While s. 15(3) is consistent with the law in other some other jurisdictions in Canada, it places Quebec at the lower end of well-established standards for the types of circumstances where accommodation can be refused, namely where accommodation imposes undue hardship on a public body. Unlike jurisdictions such as Ontario which only permit exceptions for cost, health and safety, Bill 160 opens the door to a refusal based on “proper operation of the public body”, which is vague and open to abuse. However, the real problem is section 15(4).
Section 15(4) would prevent any form of religious accommodation that compromises secularism or the neutrality of the state. The practical implication of this provision is that almost any form of religious accommodation could be refused, notwithstanding s. 15(3) because a manager deems the neutrality of the state to be affected.
Section 16 makes the granting of religious accommodation requests for alternative scheduling subject to the size of the government or public sector unit and, bizarrely, the ability of the unit in question to “adapt” to the request. Employers would be able to refuse to offer paid days off (for example, important religious holidays) if the person can otherwise take unpaid leave, or use vacation time. In fact, Section 16(4) provides that employers “shall” consider these options, suggesting that there will be very few circumstances where an employee will be able to get a paid day off for a holy day for anything other than a Christian statutory holiday. In other parts of Canada, paid days off (other other solutions such as switching shifts, unpaid days, etc.) for major religious holidays are standard, provided they do not unduly disrupt the organization.
Similar restrictions apply to accommodation requests in religious matters in educational facilities, with the necessary modifications (s. 17, 18).
Child care facilities
According to section 30, child care facilities are subject to the Bill. The Bill would effectively prohibit parents from seeking religious accommodation with regard to any “repeated activity” (which presumably would include prayer, requests for days or time off) that has a religious aspect. Dietary accommodations for allergies would presumably be fine, but religious ones would not. A day care would be unable to accommodate a request for halal or kosher food.
The prohibition on accommodating any “repeated” activity or practice that may constitute a religious belief applies not only to institutional childcare facilities but also to subsidized home child care providers.
Amendments to the Quebec Charter of human rights and freedoms
Under sections 40 and 41 of the Bill, the exercise of rights and freedoms would be subject to the primacy of the French language, equality between men and women, and the principle of secularism.
Comment: The Bill would establish a hierarchy of rights, giving explicit and generic primacy to the French language (a provision which enters into direct conflict with the Canadian Charter of Rights and Freedoms which protects at least certain language rights). It is, in fact, unclear what a generic guarantee of for the French language is doing in Bill that purports to be about religious accommodation.
Although preambles do not confer rights, they do express the intention of the legislator and they provide an indication of the proper interpretation. There is no rational reason to include the primacy of the French language in a Bill about secularism. Moreover, there is no particular reason to presume that language rights will always trump other types of rights (for example, a restriction on language might infringe freedom of expression). These provisions clearly place other types of rights in a subordinate relationship to language rights (explicit preference being given to French language rights) and gender equality. The implication of this is that disability rights, rights to equality on the grounds of race, ethnic origin or nationality are necessarily relegated to a lesser status.
APPLICATION OF INTERNATIONAL LAW
According to the International Covenant on Civil and Political Rights, which as been ratified by Canada and agreed to by Quebec:
1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
3. Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant.
1 . In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.
In short, the ability to take measures that single out and discriminate against religious minorities can only be justified in the event of a public emergency and even then, only to the extent strictly required by the situation. Quebec’s political aspirations to acquire independence and carve out a sphere of strict and closed secularism are not likely to be considered to be a public emergency in any rational judicial forum.
Sections 5, 8, 15(4), 16, 17, 18, 20 (3) [dealing with the legal requirements to have an implementation policy that covers religious wear], 30, 42, 44, 45 are likely unconstitutional under section 2 (religious freedoms) and section 15 (equality rights) of the Canadian Charter of Rights and Freedoms, and are unlikely to be upheld as being reasonable limits that can be justified in a free and democratic society.
If the government invokes the notwithstanding clause, it will be an acknowledgment that the Bill is unconstitutional and that the government plans to proceed anyway.
Pearl Eliadis is a human rights lawyer, lecturer and author. She is the President of the Quebec Bar Association’s Human Rights Committee. The views expressed here are her own.