The Quebec Human Rights Commission is warning the Marois government that several elements in its proposed Charter of Quebec Values would not stand up in court.
The Commission is especially concerned about the ban on the wearing of religious symbols by civil servants. It says the ban contravenes both the letter and the spirit of Quebec's Charter of Human Rights and would deprive some Quebecers of their right to equal access to employment.
The Commission says the Marois government is misinterpreting the notion of neutrality of the state, which applies to institutions but not employees, beyond a general duty to be impartial in dealing with the public.
The Commission also warns that it would be difficult to apply the notwithstanding clause to the Charter of Values because the proposed wording does not meet strict conditions governing substance and form.
Full text of the Commission's statement on the proposed Charter of Quebec Values
The Commission des droits de la personne et des droits de la jeunesse believes that the government’s policy paper – Parce que nos valeurs on y croit – jeopardizes fundamental rights and freedoms
Montréal, October 17, 2013 – The Commission des droits de la personne et des droits de la jeunesse believes that several proposals in 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, contravene Québec’s Charter of Human Rights and Freedoms and infringe 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 Québec 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.
In its comments released today, the Commission concludes that the government’s proposals are contrary to the spirit and the letter of the Charter, which is designed to protect the rights of everyone.
“The government’s proposals are cause for serious concern. They represent a clear break with the text of the Charter, a quasi-constitutional law adopted by the National Assembly in 1975. It is the most radical proposal modifying the Charter since its adoption,” said the President of the Commission, Jacques Frémont.
Thus, if the proposal to ban public service employees from wearing “conspicuous” religious symbols was adopted, it would clearly be in violation of the Charter and would not withstand a court challenge in the current state of jurisprudence. Such prohibition could not be valid without resorting to the notwithstanding clause, which cannot be done without meeting strict conditions as to substance and form.
The right to display one’s religious beliefs is protected by the Charter, which guarantees freedom of religion and freedom of conscience. Banning religious symbols would exclude people from a large number of jobs based on the wearing of a religious symbol and inferred perceptions of that symbol, thus infringing their rights to freedom of expression and to equal access to employment.
The proposed prohibition of religious symbols stems from a misconception regarding freedom of religion as protected by the Charter and in international law. It also misinterprets the duty of state neutrality. In fact this obligation applies to the state institutions, but not to its employees or representatives, other than their duty of reserve and impartiality.
“It is unreasonable to presume the partiality of a public sector employee due to the simple fact that he or she wears a religious symbol,” the Commission explains. By linking the wearing of “conspicuous” religious symbols to the definition of proselytizing (to attempt to convince someone to adhere to his or her religion), without taking into account the person’s conduct, distorts the legal approach developed in regard to the protection of freedom of religion and opens the door to a restriction that would be contrary to the Québec Charter.
Equality between women and men
Moreover, the Commission questions the objective set out in the government’s policy paper to change the guidelines that presently govern the duty to accommodate by defining the concept of undue hardship. One of the proposals would be aimed at “reinforcing equality between women and men” and would make it the first condition for approving a reasonable accommodation request.
The Québec Charter already provides protection against gender discrimination and guarantees the right to equality between women and men, and has done so since 1975. Moreover, the interpretative provision of Section 50.1 added to the Charter in 2008, reiterates that rights are equally guaranteed to women and men.
The Commission also underlines that there already exists guidelines governing the duty to accommodate and that an accommodation that would infringe the right to equality, including equality between women and men, must not be granted.
In its comments, the Commission explains that the government’s proposal to assess accommodation requests on the basis of “shared values” and “core community values” is problematic as those concepts are too vague. Moreover, the government’s wish to formalize the duty to accommodate only when it involves religion also presents several legal and practical challenges. These elements are likely to have significant adverse effects on the concrete exercise of rights and freedoms, in particular, of disabled persons, pregnant women and the elderly.