Introduction

From a strictly "study of law" perspective, the proposed failed Charter on state secularism in the Province of Québec was a fascinating document. Admittedly, some observers have characterized the bill otherwise including but not at all limited to the perhaps over-the-top descriptions "Islamophobic" and the loaded term "racist". The characterization of others depends on who you ask.

Here, we examine the language of the Charter from a legal history perspective.

Background

In technical legal terms, this was merely Bill 60 of the 1st Session of the 40th Legislature of the National Assembly of Québec. Bill 60, along with all other proposed laws which did not get all the necessary approvals at the date of dissolution, suffered what parliamentary law lawyers described as "died on the order paper".

It fell to Bernard Drainville, then Minister of a government department known as Democratic Institutions and Active Citizenship, to table and sell the Charter.

flag of QuebecIn the attempt made by a state to control if not prohibit the wearing of religious apparel in public places, the then-government of Québec was not re-inventing the wheel. France, from where a majority of Quebecers can trace their ancestry, had been experimenting with these kinds of laws since 2004.

Still, this was Canada, 2013 with religious freedoms front and center (§2(a)) in the 1981 Charter of Rights of Freedoms. The proposed Quebec Charter was extremely controversial from the get-go. In the final analysis if, as ought to be the case in these kinds of things, Bill 60 has to be described as a failed experiment. Failed because, believing she was riding high what she perceived to be the wide appeal of the proposed Charter, the then-prime minister of Québec Pauline Marois (in Canada, provincial prime ministers are known as "premiers") dissolved the provincial parliament on March 6, 2014 when she called a general election. Her belief was that the people of Québec would support her political agenda including the proposed Charter by returning a majority government for her separatist Parti Québecois (PQ). In the ensuing election, the biggest issue was "le projet de charte du PQ".

In assessing any proposed law, the ultimate questions are whether the law is needed; what community problem(s) is the law purporting to address and is the proposed law proportionate to the alleged problem? Put more simply, as the individual Québecer would have asked herself/himself on April 7, 2014, "will the proposed Charter make Québec a better place to live?"

The answer was a resounding "no".

For a wide variety of reasons, the rejection of the Charter being foremost, the Parti Quebecois was soundly defeated in the election of April 7. The Liberal Party of Quebec took 70 of the 125 seats in the National Assembly, a clear majority. Marois even lost her own seat and she promptly quit as leader of the PQ.

These events were the death knoll for Bill 60, formally known as a proposed Charter Affirming the Values of State Secularism and Religious Neutrality and of Equality Between Women and Men, and Providing a Framework for Accommodation Requests, was dead. Buried with the proposed Charter was the proposed clothing restrictions more than  any other part of the Charter, had fuelled such bitter public debate.

The hijabWhile we have picked and chosen specific sections of the unsuccessful Charter as being of special interest to the legal history of Canada, we are also making available online the entirety of the proposed Charter. This link presents the whole Bill 60 as a PDF, and as originally presented by the National Assembly of Québec.

A key in absorbing the reach of the Charter is understanding that it was to apply to what was defined as "public bodies". The term did not just include government departments and their employees, but any agency funded by the government. That latter list included municipal governments, transit authorities and school boards.

The Charter

PREAMBLE

The National Assembly of Quebec affirms the values of separation of religions and State and the religious neutrality and secular nature of the State;

The National Assembly reiterates the importance it attaches to the value of equality between women and men;

The National Assembly recognizes that it is appropriate to provide for certain measures to ensure that these values are upheld;

The National Assembly believes that it is necessary to establish certain guidelines to deal with accommodation requests, particularly in religious matters; (and)

The National Assembly reaffirms the importance it attaches to human rights and freedoms(.)

§1. In the pursuit of its mission, a public body must remain neutral in religious matters and reflect the secular nature of the State, while making allowance, if applicable, for the emblematic and toponymic elements of Quebec's cultural heritage that testify to its history.

[....]

§3. In the exercise of their functions, personnel members of public bodies must maintain religious neutrality.

§4. In the exercise of their functions, personnel members of public bodies must exercise reserve with regard to expressing their religious beliefs.

§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.

§6. Personnel members of public bodies must exercise their functions with their face uncovered, unless they have to cover their face in particular because of their working conditions or because of occupational or task-related requirements.

§7. Persons must ordinarily have their face uncovered when receiving services from personnel members of public bodies.

[....]

§11. The duties of neutrality and reserve and the restriction on wearing religious symbols do not apply to personnel members who provide spiritual care and guidance services ....

[....]

§27. In the exercise of their functions, personnel members, including management personnel, of a childcare centre, home childcare coordinating office or subsidized day care centre governed by the Educational Childcare Act are bound by the duties and obligations set out in §3 to §6.

[....]