Restrictions and prohibitions of Religious Clothing and Symbols in the Public Sector: The Quebec (Canada) Debate

Transcription

1 IADC, Vienna, July 5 to 10, 2014 Restrictions and prohibitions of Religious Clothing and Symbols in the Public Sector: The Quebec (Canada) Debate Louis Charette

2 A New Charter for Quebec Bill 60: Charter of Values The Bill was initially introduced in the fall of Elections were however called in February 2014 before the bill could be passed and the governing party which had proposed the Bill, was defeated. 2

3 Social Context: Consultation Commission on Accommodation Practices Related to Cultural Differences Background - Young girl expelled from a soccer game for refusing to remove her hijab; - Supreme Court of Canada s 2006 decision on the wearing of a kirpan in high school (Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6) 3

4 Social Context: Consultation Commission on Accommodation Practices Related to Cultural Differences February 2007: establishment of a commission (the Bouchard-Taylor Commission ) to investigate the issue of requests for reasonable accommodations of cultural differences. May 2008: The Commission issued a final report with recommendations. 4

5 Social Context: Consultation Commission on Accommodation Practices Related to Cultural Differences One of the recommendations: With respect to the religious clothing and symbols worn by state agents, we recommend that these be forbidden to some of them (judges and state attorneys, police officers, prison guards, president and vice-president of the National Assembly). However, for all other state agents (teachers, public servants, health professionals and others), we believe that religious clothing and symbols should be allowed. Secularism should apply to state acts, rather than the appearance of employees and users. 5

6 Bill 60 - Objective Preamble The purpose of this bill is to establish a Charter affirming the values of State secularism and religious neutrality and of equality between women and men, and providing a framework for accommodation requests. [ ] 6

7 Bill 60 -Scope of Application Public Bodies: > Government departments > Hospitals > School boards, colleges and universities > Municipalities > Public or subsidized childcare centres > Etc. 7

8 Bill 60 - Overview CHAPTER I RELIGIOUS NEUTRALITY AND SECULAR NATURE OF PUBLIC BODIES CHAPTER II DUTIES AND OBLIGATIONS OF PERSONNEL MEMBERS OF PUBLIC BODIES CHAPTER III OBLIGATION TO HAVE FACE UNCOVERED CHAPTER V HANDLING OF ACCOMMODATION REQUESTS ON RELIGIOUS GROUNDS 8

9 Bill 60 - Core of the Controversy Prohibition on Religious Clothing and Symbols Article 5 : In the exercise of their functions, personnel members of public bodies must not wear objects such as headgear, clothing, jewelry or other adornments which, by their conspicuous nature, overtly indicate a religious affiliation. «Un membre du personnel d un organisme public ne doit pas porter, dans l exercice de ses fonctions, un objet, tel un couvre-chef, un vêtement, un bijou ou une autre parure, marquant ostensiblement, par son caractère démonstratif, une appartenance religieuse.» 9

10 Federal and Provincial Legislative Framework Quebec Charter of Human Rights and Freedoms Canadian Charter of Rights and Freedoms 10

11 A Provincial Charter within a Federal State Canadian Charter of Rights and Freedoms Article 2 (a): Everyone has the following fundamental freedoms: (a) freedom of conscience and religion; 11

12 A Provincial Charter within a Federal State Quebec Charter of Human Rights and Freedoms Article 3: Every person is the possessor of the fundamental freedoms, including freedom of conscience, freedom of religion, freedom of opinion, freedom of expression, freedom of peaceful assembly and freedom of association. Article 10: Every person has a right to full and equal recognition and exercise of his human rights and freedoms, without distinction, exclusion or preference based on [ ] religion, [ ]. Discrimination exists where such a distinction, exclusion or preference has the effect of nullifying or impairing such right. 12

13 High-profile/specialized entities opposing the project Barreau du Québec (Québec Bar) The Supreme Court of Canada confirmed that state neutrality is assured when the state neither favours nor hinders any particular religious belief, that is, when it shows respect for all postures towards religion, including that of having no religious beliefs whatsoever, while taking into account the competing constitutional rights of the individuals affected. [our translation] *Reference to S.L. v. Commission scolaire des Chênes, 2012 SCC 7 at paragraph

14 High-profile/specialized entities opposing the project Barreau du Québec (Québec Bar) We will recall the decision Grant v. Canada* in which the petitioners sought to prohibit the Commissionner of the Royal Canadian Mounted Police from authorizing a Sikh agent from wearing a turban while on duty. The Federal Court confirmed that the visible manifestation of the Sikh agent s religious conviction as part of his uniform, does not create a reasonable fear of partiality. [our translation] *[1995] 1 F.C. 158 (affirmed by the Federal Court of Appeal and the Supreme Court of Canada). 14

15 High-profile/specialized entities opposing the project Commission des droits de la personne et des droits de la jeunesse (Human Rights and Youth Rights Commission) In fact, persons affected will face a choice that is contrary to the right to effective equality: they will have to either violate their religion or abandon their employment. (page 67) 15

16 The Election of a New Government in April 2014 The governing party was defeated and the new government won a majority of seats at the Quebec legislative assembly. Creation of a new Ministry for Immigration, Diversity and Inclusion. The new Minister of Justice is nevertheless said to be preparing a new draft bill to address the question of cultural and religious accommodations. 16

17 Our offices Montreal 1 Place Ville-Marie Suite 4000 Montreal, Quebec H3B 4M4 Tel.: Fax: Quebec 925 Grande-Allée West Suite 5000 Quebec City, Quebec G1S 1C1 Tel.: Fax: Sherbrooke Cité du Parc 95 Jacques-Cartier Blvd. South Suite 200 Sherbrooke, Quebec J1J 2Z3 Tel.: Fax: Trois-Rivières 1500 Royale St. Suite 360 Trois-Rivières, Quebec G9A 6E6 Tel.: Fax: Ottawa Suite Albert Street Ottawa, Ontario K1R 7X7 Tel.: Fax: LAVERY.CA *** All rights reserved Any us of this text is prohibited without the written consent of Lavery, de Billy. This text does not constitute a legal opinion. No action should be based solely on the information contained therein. 17