All societies have laws, rules and codes that govern the conduct of their citizens. These numerous laws and regulations frame our life within society, regardless of where we live. In Quebec,fn 11 the rights and freedoms of all human beings are protected by various laws, including the Québec Charter of Human Rights and Freedoms,fn 12 the Canadian Charter of Rights and Freedoms,fn 13 the Civil Code and the Criminal Code. In this chapter, we focus our analysis on the Québec Charter of Human Rights and Freedoms.
In Quebec, all laws and regulations must respect the first 38 articles of the Québec Charter of Human Rights and Freedoms. The Charter is, therefore, a legal document that influences the daily lives of Quebec citizens. To understand the rights and freedoms that it protects, this chapter provides a summary of almost all the articles in the Charter, followed by a synopsis of the role of the Commission des droits de la personne et des droits de la jeunesse (the Commission).fn 14
Quebec's National Assembly adopted the Québec Charter of Human Rights and Freedoms on June 27, 1975. The Charter represents the ethical framework that ensures a balance between individual and collective rights within Quebec society. The rights and freedoms cited in the Charter affect all spheres of life and the Charter's articles apply to all areas of activity that fall under provincial jurisdiction. For this reason, the Charter can be invoked when an organization gives directions, offers services or conducts itself in a way that can be considered discriminatory.
The Charter seeks to guarantee the respect of all fundamental rights and freedoms. It sets out the principles of dignity, equality and liberty, which are the foundations of justice and peace.
In its preamble, the Charter sets out the following specific principles that govern the entire legal document. They are:
· Whereas every human being possesses intrinsic rights and freedoms designed to ensure his protection and development;
· Whereas all human beings are equal in worth and dignity, and are entitled to equal protection of the law;
· Whereas respect for the dignity of the human being and recognition of his rights and freedoms constitute the foundation of justice and peace;
· Whereas the rights and freedoms of the human person are inseparable from the rights and freedoms of others and from the common well-being;
· Whereas the fundamental rights and freedoms may be guaranteed by the collective will and better protected against any violation.
The Charter applies to all human beings in the territory of Quebec.
The Charter's guiding principles enjoy broad consensus and organizations tend to respect these principles when adopting their own regulations. However, if a regulation contradicts the Charter and constitutes discrimination or exploitation, two possible recourses are available to individuals who feel they have been wronged:
· Legal: the individual may decide to appeal to the courts;
· Administrative: the individual may decide to appeal to the Commission.
The Charter states that each human being is entitled to:
· The right to life, personal security, inviolability and freedom, as well as the recognition of the legal personality of every human being [s. 1]. · When life is in peril, the right to assistance [s. 2].· The right to protection of personal dignity, honour and reputation [s. 4]. · The right to privacy [s. 5]. · The right to peaceful enjoyment and free disposition of personal property [s. 6]. · The right to inviolability of the home [s. 7 and 8]. · The right to professional secrecy [s.9]
· The freedoms of conscience, religion, opinion, expression, association and peaceful assembly [s. 3].
Article 9.1 of the Charter limits the exercise of individual rights and freedoms:
In exercising his fundamental freedoms and rights, a person shall maintain a proper regard for democratic values, public order and the general well-being of the citizens of Québec.
Individual rights and freedoms must respect democratic values, public order and the general well-being. The meaning of the expression democratic values stated in the Québec Charter of Human Rights and Freedoms was established by the Supreme Court.fn 15 Democratic values are thus understood as:
· Respect for the dignity of the human being;
· Respect for social equality;
· Respect for each culture and each group;
· Faith in social and political institutions that promote the participation of individuals and groups in society.
This article in the Charter thus recognizes that the rights and freedoms of the individual are inseparable from the rights and freedoms of others. In exercising one's rights and freedoms, one has a social responsibility to respect those of the persons with whom he or she coexists. A group cannot, therefore, in the name of its convictions, conduct itself or express attitudes that run counter to democratic values, public order and general well-being.
When the exercise of freedom of expression conflicts with democratic values, it is possible to limit the exercise of that freedom on the basis of the general principle set forth in Article 9.1.
The Charter seeks to guarantee all individuals' protection against any form of illegal discrimination. Thus, articles 10 and 10.1 state that every person has a right to full and equal recognition and exercise of his or her rights and freedoms without distinction based on specific criteria such as race or sex.
Article 10 of the Charter specifies 14 grounds upon which a person cannot be excluded or distinguished. These include:
Age, social condition, political convictions, civil status, pregnancy, handicap, language, sexual orientation, race, colour, ethnic or national origin, religion, sex.
The Charter also specifies the locations or contexts in which any form of discrimination or exclusion is forbidden:
· In advertising (Article 11);
· In a judicial act (articles 12 to 14);
· In access to public places (Article 15);
· In employment (articles 16-18.1, 19 and 20);
· In a situation that would penalize a person in his or her employment owing to the mere fact that he or she was convicted of a penal or criminal offence, if the offence was in no way connected with the employment or if the person has obtained a pardon for the offence. (Article 18.2).
The Charter thus asserts the equality of all human beings by specifying the factors and contexts under which a person cannot be distinguished, excluded or favoured.
The Charter guarantees all citizens certain political rights, namely:
· Every person has a right of petition to the National Assembly for the redress of grievances (article 21).
· Every person legally capable and qualified has the right to be a candidate and to vote at an election (article 22).
The Charter also protects the upholding of a just and equitable process of arrest, search, detention and court appearance of anyone accused of breaking the law. The various legal rights are stipulated in articles 23 to 38 of the Charter. Here is a summary of these articles:
· The right to a public and impartial hearing by an independent court [s. 23].
· The right not to be deprived of liberty or rights, except on the grounds provided by law and in accordance with prescribed procedure [s. 24].
· The right to protection from unreasonable search or seizure [s. 24.1].
In the case of arrest or detention
· The right to be treated with humanity and respect [s. 25].
· The right to a form of detention appropriate to one's sex, age and physical or mental condition [s. 26].
· The right to be kept apart from prisoners serving a sentence until final judgment of the case [s. 27].
· The right to be informed promptly, in a language understood, of the grounds for arrest or detention [s. 28] and of the specific offence in question [s. 28.1].
· The right to be informed of one's rights, to notify one's relatives and to obtain assistance from legal counsel [s. 29].
· The right to be brought promptly before a court or released [s. 30].
· The right of recourse to habeas corpus [s. 32].
Before a court
· The right to be released on undertaking, with or without deposit or surety [s. 31].
· The right to be tried within a reasonable time [s. 32.1].
· The right to be presumed innocent [s. 33].
· The right not to be compelled to testify at one's own trial [s. 33.1].
· The right to be assisted or represented by legal counsel [s. 34].
· The right to a full and complete defence, and to examine and cross-examine witnesses [s. 35].
· The right of the accused to free assistance from an interpreter, including an interpreter for the deaf [s. 36].
· The right not to be tried for an offence that, when committed, did not constitute a violation of the law [s. 37].
· The right not to be tried twice for the same offence [s. 37.1] and to the least severe punishment if the law has changed since the offence was committed [s. 37.2].
· The right not to be incriminated by one's own testimony, except in the case of perjury or contradictory evidence [s. 38].
The Charter assures the upholding of certain economic and social rights, namely:
· The right of children to the protection, security and attention that their parents or the persons acting on their stead are able to provide [s. 39].
· The right to free public education [s. 40].
· The right, in public educational institutions, to receive religious or moral education [s. 41].
· The right to choose approved private educational institutions [s. 42].
· The right of people belonging to ethnic minorities to maintain and develop their cultural interests with the other members of their group [s. 43].
· The right to information [s. 44].
· The right of every person in need to sufficient financial and social assistance to provide an acceptable standard of living [s. 45].
· The right to fair and reasonable conditions of employment with proper regard for the person's health, safety and well-being [s. 46].
· The equality of spouses within a marriage and their equal responsibility in the moral guidance and material support of the family and the education of their common offspring [s. 47].
· The right of elderly and disabled people to security and to the protection of their families or the people acting in their stead, and the right to protection from all forms of exploitation [s. 48.]
The definition and the scope of the rights and freedoms stipulated in the Charter would seem to be clearly delineated in the Charter's sections summarized above. However, the exact meaning of each right and freedom cited in the Charter is defined gradually as legal cases are brought before the courts. A set of judgments helps determine how the laws in question are interpreted.
The rights and freedoms set out in the Charter change in relation to the prevailing values at the time when the case is being heard. Thus, over time, as complaints are brought before the courts, the meaning or scope of a right will change.
The Charter assures, for example, the protection of freedom of religion, but does not define what it means by the term religion. One has to turn to jurisprudence to understand the meaning of this word and this right. Decisions rendered by different Quebec courts do not provide a precise definition. Certain judgments such as the R. C. Big M Drug Mart case do help to establish the limits of religious freedoms:fn 16
· The right to believe whatever one wishes in the religious realm;
· The right to express one's beliefs through worship and practice;
· The right to propagate one's beliefs.
According to this judgment, religious freedom has two dimensions:
· A positive dimension: individuals are free to believe what they wish and to profess those beliefs;
· A negative dimension: no one can be forced to embrace a religious idea or to act contrary to what he or she believes.fn 17
Individuals can also ask that their personal beliefs be considered by their community to be a religion. This acceptance gives them the right, for example, to have certain practices recognized by an employer. Personal beliefs can be considered religious beliefs according to the law under two conditions:fn 18
· The belief invoked by the individual constitutes a religion in his or her life;
· The individual shows sincerity in the preceding contention.
This right, however, is limited. Individuals cannot justify all of their conduct in the name of religion. Actions must respect the democratic values protected under the Charter. For example, in the Harrold affair,fn 19 the Court found a member of the religious group guilty of contravening Vancouver's anti-noise by-law, ruling that the member could not, under the guise of his religion, contravene a municipal by-law.
An individual or group's freedom to worship is limited when it runs contrary to peace and public safety. The Charter can, therefore, establish the scope of religious freedom and how it is exercised so as to protect public order, democratic values and the general well-being of citizens (Québec Charter, Section 9.1).
As complaints are brought before the courts, the Charter becomes more and more specific. This fundamental law is flexible since it adapts to the changing times and cultural realities.
The mission of the Commission is to ensure that the principles set forth in this Charter are upheld, that the interests of children are protected and that their rights recognized by the Youth Protection Act (R.S.Q., c. P-34.1) are respected; for such purposes, the Commission shall exercise the functions and powers conferred on it by this Charter and the Youth Protection Act. (Section 57)
The Commission seeks to assure the promotion and respect of the principles set forth in the Charter (Section 71). It should be noted, however, that the Commission only has the power to investigate and make recommendations and, if needed, to refer a matter to a court. The following is a list of the Commission's extensive roles and powers:
· It can launch an investigation on its own initiative or in response to a complaint. The complaint can relate to any situation that appears to constitute:
· discrimination (articles 10 to 19 and 89) or
· a violation of the right to protection against the exploitation of an aged or handicapped person, as stated in the first paragraph of Article 48;
· It must encourage resolution between the two parties involved (the person whose rights have been infringed and the person responsible for the infringement);
· If necessary, it communicates to the Public Curator the need for protection under the Curator's jurisdiction in the case of exploitation of an aged or handicapped person;
· It develops and implements an information and education program on the rights and freedoms enshrined in the Charter;
· It directs and promotes research and publications on fundamental rights and freedoms;
· It identifies provisions of Quebec laws that run counter to the Charter and makes appropriate recommendations to the government;
· It receives suggestions, recommendations and requests concerning human rights and freedoms;
· It cooperates with all organizations committed to the promotion of human rights and freedoms in Quebec and elsewhere;
· It investigates any attempts or acts of reprisal as well as any other fact or omission that it deems a violation of the Charter and reports it to the attorney general.
Any person who believes he has been the victim of a violation of rights that is within the sphere of investigation of the Commission may file a complaint with the Commission. If several persons believe they have suffered a violation of their rights in similar circumstances, they may form a group to file a complaint (Section 74).
The Youth Protection Act (sections 38-39) requires that any threat to a child's safety or development be reported to the Director of Youth Protection (DYP). This obligation applies, for example, in a situation in which the parents' lifestyle constitutes a threat to the child's safety or development.
The Commission does not receive these reports. It can, however, investigate how the DYP is respecting children's rights when a case is brought to its attention.
The Charter is an ethical framework that governs the balance between individual and group rights within Quebec society. It seeks to ensure that all fundamental rights and freedoms are respected, including equality, access to equitable legal assistance, economic and social equity, the right to education and the right to justice. Individual rights and freedoms must, however, be respected within a framework of respect for democratic values, public order and the general well-being of all of society. Thus, a member of a group or an individual cannot invoke the respect for his or her fundamental freedoms in order to avoid sanction for breaking the law.
Individual rights and freedoms are guaranteed under the Quebec Charter. When these rights are violated, the Commission must ensure that the Charter's principles are respected and, in the case of children, that the interests and rights of children are protected under the Youth Protection Act. When an individual, group or organization believes that its rights and freedoms have been violated, it can file a complaint with the Commission or the courts.