The Quebec Secession Reference and the Proposed Charter of Quebec Values

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Case/Policy considered: Reference re Secession of Quebec, [1998] 2 SCR 217; Charter of Quebec Values

It’s as if Pauline Marois and her government knew we would be discussing the Quebec Secession Reference case in constitutional law this week when they finally released their plans for a Charter of Quebec Values on September 10. The Quebec Secession Reference case famously decided that Quebec did not have the unilateral right to secede from Canada under domestic or international law. It is also taught by many constitutional law professors as our first case, given its important pronouncements on sources of constitutional law and Canada’s constitutional history and values. The constitutional values – actually unwritten principles of constitutional law – that the Supreme Court found to be relevant in the context of Quebec secession were federalism, democracy, constitutionalism and the rule of law, and respect for minorities (at para 32). The Court’s elaboration on these principles takes on a new relevance in light of Quebec’s proposed Charter.

In its discussion of federalism, the Supreme Court quoted (at para 43) from George-Etienne Cartier’s speech, cited in the Parliamentary Debates on the subject of the Confederation (1865), where he stated:

Now, when we [are] united together, if union [is] attained, we [shall] form a political nationality with which neither the national origin, nor the religion of any individual, [will] interfere.  It was lamented by some that we had this diversity of races, and hopes were expressed that this distinctive feature would cease.  The idea of unity of races [is] utopian — it [is] impossible.  Distinctions of this kind [will] always exist.  Dissimilarity, in fact, appear[s] to be the order of the physical world and of the moral world, as well as in the political world.  But with regard to the objection based on this fact, to the effect that a great nation [can]not be formed because Lower Canada [is] in great part French and Catholic, and Upper Canada [is] British and Protestant, and the Lower Provinces [are] mixed, it [is] futile and worthless in the extreme. . .   In our own Federation we [will] have Catholic and Protestant, English, French, Irish and Scotch, and each by his efforts and his success [will] increase the prosperity and glory of the new Confederacy. . . . [W]e [are] of different races, not for the purpose of warring against each other, but in order to compete and emulate for the general welfare.

(Emphasis added)

The diversity of races and religions in Canada has of course changed since 1865, and it is important to note that the diversity of our founding peoples (i.e. First Nations) was not mentioned by Cartier. Quebec’s identification with Catholicism has also evolved since 1865. However, Cartier’s words help us understand the animating values underlying the creation of Canada as a federal state, and how those values would be compromised under Quebec’s proposed Charter.

On the principle of democracy, the Supreme Court referenced (at para 64) R v Oakes, [1986] 1 SCR 103 at 136, for its articulation of the values inherent in a free and democratic society:

The Court must be guided by the values and principles essential to a free and democratic society which I believe to embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society.

(Emphasis added)

As the Court noted in the Quebec Secession Reference (at para 76), the principle of democracy must be considered along with other constitutional principles such as constitutionalism and the protection of minorities. None trumps the others. In that light, democracy means more than majority rule, and it is difficult to see how the democratic values discussed in Oakes would be furthered by Quebec’s proposed Charter.

Further on the subject of minority rights, the Court remarked (at para 81) that although Canada’s record is not spotless, “the protection of minority rights was clearly an essential consideration in the design of our constitutional structure even at the time of Confederation.” Quebec’s proposed Charter, rather than instilling some sort of state neutrality as claimed, is a direct violation of the freedoms of members of religious minorities in that province. As argued by Emmett Macfarlane in the Globe and Mail, the secular Charter “essentially targets religious groups that tend to be comprised of visible minorities, such as Sikhs and Muslims. This is the definition of systemic racism.” Put another way, although the Charter purports to treat everyone in Quebec the same by subjecting them to the same “neutral” values, it targets members of groups whose religions are manifested in visible ways, and adversely impacts persons on the basis of their race and ethnicity.

Quebec did not accept the jurisdiction of the Supreme Court in the Quebec Secession Reference, so the statements from that decision that I am invoking here are not likely to be persuasive to the PQ government. And in any event, Quebec may invoke section 33 of the Canadian Charter of Rights and Freedoms, the notwithstanding clause, to shield its proposed Charter from constitutional attack on the basis of freedom of religion and religious discrimination (sections 2(a) and 15 of the Canadian Charter of Rights and Freedoms). However, the Quebec Secession Reference reminds us that our constitution also includes foundational unwritten principles that I hope will animate public debate about this issue. Those principles certainly animated our discussion of the proposed Charter in class.

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About Jennifer Koshan

B.Sc., LL.B (Calgary), LL.M. (British Columbia). Professor. Member of the Alberta Bar. Please click here for more information.
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2 Responses to The Quebec Secession Reference and the Proposed Charter of Quebec Values

  1. Jennifer Koshan says:

    For an excellent comment on the proposed Quebec Charter, see the statement from the Canadian Association of Muslim Women Lawyers here: Thanks to Sonia Lawrence for posting this on the Institute of Feminist Legal Studies blog.

  2. Jennifer Koshan says:

    Quebec introduced Bill 60, “Charter affirming the values of State secularism and religious neutrality and of equality between women and men, and providing a framework for accommodation requests”, last week. The Charter provides that public bodies “must remain neutral in religious matters and reflect the secular nature of the State” although allowance is given “for the emblematic and toponymic elements of Québec’s cultural heritage that testify to its history” (section 1). Personnel of public bodies, in the exercise of their functions, “must maintain religious neutrality” and “must exercise reserve with regard to expressing their religious beliefs” (sections 3 and 4). More specifically, they “must not wear objects such as headgear, clothing, jewelry or other adornments which, by their conspicuous nature, overtly indicate a religious affiliation” (section 5). These personnel must exercise their functions with their faces uncovered, and so must persons receiving those services (sections 6, 9).

    The restrictions in sections 3 to 6 “are deemed to constitute an integral part of the employment conditions of the persons to whom they apply” (section 13). If a personnel member of a public body fails to comply with these restrictions, “dialogue must be engaged in before any disciplinary measure is taken by the public body, in order to remind the person of their obligations and foster their compliance” (section 14). Requests for religious accommodation made to public bodies are to be assessed under section 10 of Quebec’s Charter of human rights and freedoms, RSQ, c C-12, consistently with the right for equality between women and men, secularism and religious neutrality. Reasonable accommodation to the point of undue hardship is required, “with regard to, among other considerations, the rights of others, public health and safety, the effects on the proper operation of the public body, and the costs involved” (section 15). Specific provisions deal with absences from work and school for religious reasons (sections 16, 17). However, “Accommodation requests on religious grounds cannot be made with respect to the duties and obligations set out in sections 3 to 6” (section 18).

    Public bodies must develop implementation policies (section 19-26), and special rules are set out for educational childcare facilities (sections 27-31).

    Bill 60 provides for amendment of other statutes, including the Charter of human rights and freedoms, by adding language referencing the principles of equality, religious neutrality and secularism to the preamble and section 20.2, governing accommodation. More specifically, “accommodation must be consistent with the right to equality between women and men” and “must not compromise the separation of religions and State or the religious neutrality and secular nature of the State” (section 20.2 as amended).

    Schedule 1 sets out the “public bodies” to which the Charter applies, including government departments and agencies, municipalities, public transit authorities, school boards, colleges, universities, and health and social services agencies. The Charter also applies to judges and tribunal members, arbitrators, commissioners, and personnel members of the National Assembly (section 8), and may apply to those who have service agreements with the government (section 10), but does not apply to those who provide spiritual care and guidance services or religious instruction in particular institutions (section 11).

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