Canada: Quebec Proposes To Legislate Secularism Of The State

The Quebec government has tabled Bill 60, commonly referred to as the "charter of values" (Charter).1 If adopted, it would prohibit all public sector employees, and some employees in the private sector who provide services to the public sector, from wearing any clothing or other sign that conspicuously indicates a religious affiliation.


The Charter's broad reach

The Charter would apply to all the following bodies (this list is not exhaustive):

  • all government departments
  • all bodies whose personnel are appointed by the government
  • most government agencies
  • most health and social service agencies
  • municipalities
  • transit authorities
  • school boards
  • daycares that receive government subsidies
  • accredited home daycares
  • institutions of higher learning (CEGEPs and universities).

Objectives

The Charter's stated objective is to guarantee that all the bodies and persons to whom it applies will be "religiously neutral" and will "reflect the secular nature of the [Quebec] State."

No signs of religious affiliation

A key component in the Charters pursuit of these objectives is a prohibition against any employee wearing headgear, clothing, jewellery or other adornments that, by their conspicuous nature, overtly indicate a religious affiliation.

The government has said this will include a hijab (hair cover worn by practising Muslim women), a Sikh turban, or a kippa (head covering worn by practising Jewish men). It has suggested that this would not include wearing small crucifixes as jewellery, though large ones might be problematic.

This prohibition would also extend to all provincially appointed judges and others fulfilling an adjudicative function, and to employees, including management, of public childcare centres and subsidized home daycare centres. Chaplains and others who provide spiritual care in a hospital or other health or social service agency or in a provincial prison would be exempt.

The prohibition could also reach into the private sector: the Charter would allow public bodies to require a contractor with whom they enter a service agreement or a subsidy agreement to enforce the same prohibition "if such a requirement is warranted in the circumstances."

The prohibition would be considered an integral part of employees conditions of employment, and affected employers would be prohibited from relaxing the condition.

Sanctions for non-complying employees

The Charter requires an employer to take disciplinary action, presumably including dismissal, against employees who refuse to shed their visible signs of religious affiliation, though only after "engaging in a dialogue" with the recalcitrant employee.

Accommodation rules in the public sector

The Charter would codify and tighten up existing jurisprudential rules on dealing with public sector employees' requests for accommodation on the basis of religion. However, no accommodation at all would be permitted in regard to the dress prohibitions outlined above. Interestingly, there are provisions that would govern requests for religious accommodation by students, as well as by teachers, in the public school system.

Childcare facilities

The bill as tabled contains numerous provisions that prohibit any religious practices or teaching in public childcare centres, accredited home childcare facilities and subsidized daycare centres, including practices involving religious dietary restrictions.

Transitional provisions

The Charter as tabled does not allow anyone to opt out of its provisions. However, it provides a one-year transition period during which current employees of public bodies (the civil service, hospitals, schools, universities, childcare centres, police forces, etc.) would not face disciplinary sanctions for wearing apparel that indicates a religious affiliation.

Municipalities could vote to extend the transition period by up to four years, except in regard to police and fire services personnel.

Public health and social service institutions could ask the government to extend the transition period by four years, though the decision to grant the extension would be discretionary.

Status of bill

The bill is only at first reading in the legislature. Given the governments minority position, it may well not be adopted in its current form. If it is enacted, it would likely face constitutional challenges based on the freedom of religion, freedom of expression and the anti-discrimination guarantees of the Quebec Charter of Human Rights and Freedoms and the Canadian Charter of Rights and Freedoms.

Footnote

1 Its full name is Charter affirming the values of State secularism and religious neutrality and of equality between women and men, and providing a framework for accommodation requests.

Norton Rose Fulbright Canada LLP

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