(Quebec) Charter of Human Rights and Freedoms

Several eminent professors (Jacques-Yvan Morin, Paul Crépeau, Frank Scott) participated in the outlining and writing of a preliminary draft. The League of Human Rights (now the League of Rights and Freedoms) drew up an extensive Charter plan, ensured extensive newspaper coverage (1973), and organized several public discussion sessions. After long debates in the parliamentary commission, mainly about the primacy of this Charter over the corpus of Québec laws, it was unanimously adopted by the National Assembly in 1975, which the same day proceeded to nominate members of the Commission for Human Rights.

The Québec Charter is a fundamental law that takes precedence over other laws, and according to the Supreme Court, possesses a quasi-constitutional status. Article 52 holds that no provision of any statute, even subsequent to the Charter, can go against articles 1 to 38, unless that statute expressly states that it applies in spite of the Charter.

This disposition brings forth two observations. First, as with the Canadian Charter of Rights and Freedoms, there exists a clause that may be used to override any fundamental freedom or right. Second, only articles 1 to 38 have precedence over the other laws, whether freedoms and fundamental rights (1 to 8), professional secrets (9), equality rights (10 to 20), political rights (21, 22), or judicial rights (23 to 38). Economic and social rights (art. 39 to 48) are thus excluded from this rule of predominance, as is the right of recourse for victims of violation of a right conferred by the Charter (art. 49). In addition to this override clause, there is a limiting clause (art. 9.1) that allows some restrictions on freedoms and fundamental rights, on condition that they are provided for by law and respect democratic values, public order, and the general well-being of Québec citizens.

The Charter "affects those matters that come under the legislative authority of Québec" (art. 55) and it is binding on the state (art. 54). It therefore applies as much to legislative and executive activities of the government as to the laws affecting the private sector in the province.

Article 10 in the Charter guarantees every person the right of recognition and to exercise, in full equality, rights and freedoms without distinction, exclusion or preference, based on the discriminations enumerated. The list of prohibited grounds includes traditional ones such as ethnic origin, sex or religion, and other more modern grounds such as social conditions, political conviction, and pregnancy. It must also be emphasized that Québec is the first jurisdiction in North America, as of 1978, to forbid discrimination based on sexual orientation. All discrimination is therefore forbidden in the juridicial acts as regards work, housing, and access to public places and services.

The Commission of Human Rights and Youth Rights (the Commission of Human Rights merged with the Commission of Youth Rights in 1995) has as its main mandate the promotion, education and awareness raising of fundamental rights, research, the duty of advising the government on the validity of its laws, and approving and working out programs for access to equality. It must also investigate complaints of discrimination addressed by citizens. In cases where, after investigation, the commission estimates that complaints are justified, and that those implicated do not follow up on the recommendation, it and it alone can refer the case to the Québec Tribunal of Human Rights.

This tribunal was created in 1991 to respond to various concerns by involved groups who saw in it recourse that was more accessible and rapid, simpler and less costly than civil litigation. The members of this tribunal, sensitive to issues of discrimination and exploitation, are better prepared to rule on complaints of this type than are the judiciary. Analysis of the decisions of the Tribunal of Human Rights enables us to conclude that the creation in Québec of a tribunal specialized in discriminatory issues allows us to remedy several legal shortcomings and draw up a more consistent and progressive body of jurisprudence.

The economic and social rights of the Charter, including the right to free education, the right for child protection, the right to information, the right to maintain and expand the cultural life of ethnic minorities, the right to social measures that ensure a decent quality of life, the right to fair and reasonable working conditions, and the right to protection from exploitation for the elderly and handicapped, are thus excluded from the rule of supremacy enjoyed by other rights in the Charter (art. 52). They cannot be applied until after government establishment of an implementation mechanism. As is the case on the international scene, these rights are not enforceable in themselves, and the government must "progressively" ensure their application. Relying on the principles of indivisibility and interdependence of rights, several groups, including the League for Rights and Freedoms, are now asking for an amendment so that these rights are on an equal footing with other fundamental rights.

The Human Rights Tribunal nevertheless decided that these rights, if not themselves dominant, become so when they interact with equality rights (art. 10). Regarding integration of a disabled child into a school, the tribunal had indeed ruled that if the Charter allows the exercise of the right of public education to be affected by various legislative restrictions, such as the imposition of education costs, it however forbids restrictions based on the grounds of discrimination (eg, being disabled) in article 10.