Quebec Charter of Human Rights and Freedoms
Encyclopedia
The Charter of Human Rights and Freedoms is a statutory bill of rights
and human rights
code passed by the National Assembly of Quebec
on June 27, 1975. It received Royal Assent
from Lieutenant Governor
Hugues Lapointe
, coming into effect on June 28, 1976.
Introduced by the Liberal government of Robert Bourassa
, the charter followed extensive preparatory work that began under the Union Nationale government of Daniel Johnson
. The charter ranks among other quasi-constitutional Quebec laws, such as the Charter of the French Language
and the Act respecting Access to documents held by public bodies and the Protection of personal information. Having precedence over all provincial legislation (including the latter), the Charter of Human Rights and Freedoms stands at the pinnacle of Quebec's legal system. Only the Constitution of Canada
, including the Canadian Charter of Rights and Freedoms
, enjoys priority over the Quebec charter.
, the International Covenant on Civil and Political Rights
and the International Covenant on Economic, Social and Cultural Rights
. Furthermore, the list of prohibited grounds of discrimination included in the Quebec charter is extensive; a total of fourteen prohibited grounds are enumerated, including race, colour, ethnic or national origin, sex, pregnancy and age. "Social condition" has been a prohibited ground of discrimination since the charter came into force. Discrimination based on sexual orientation has been prohibited since 1977; with that change, Quebec became the first jurisdiction larger than a city or county to prohibit anti-gay discrimination.
, may give rise to a cease-and-desist order and to compensation for damages. Punitive damages may be awarded in case of an intentional and unlawful violation.
The Charter of Human Rights and Freedoms is called quasi-constitutional because, according to section 52, no provision of any other act passed by the Quebec National Assembly may derogate from sections 1 to 38, unless such act expressly states that it applies despite the charter. A total impossibility to adopt derogating laws could be considered incompatible with parliamentary sovereignty
, a fundamental principle in political systems following the British tradition; however, Canada, of which Quebec is a province, has a tradition of constitutional supremacy. Its Constitution, which includes the Canadian Charter of Rights and Freedoms
, is supreme, binding the federal parliament and the legislative assemblies of Canada's provinces and territories.
The Quebec charter's supremacy under its section 52 applies to the following categories of rights: fundamental rights and freedoms (the right to life, free speech, freedom of religion, the right to privacy, etc.); the right to equality; political rights; and judicial rights. Economic and social rights do not enjoy supremacy but, according to the Supreme Court of Canada
in the 2002 case of Gosselin v. Quebec (Attorney General)
, failure to respect such a right may give rise to a judicial declaration of violation.
The charter provides for a specific machinery in cases of discrimination (or exploitation of an elderly or handicapped person). Instead of introducing litigation in court, victims of such a violation may file a complaint with the Human Rights and Youth Rights Commission. The commission will investigate the matter and attempt to foster a settlement between the parties. It may recommend corrective measures. If those are not followed, the commission may introduce litigation before a court (usually, but not necessarily, the Human Rights Tribunal). Victims will be represented free of charge by the commission.
The Quebec charter does not apply to federally regulated activities in Quebec. Those are subject to the Canadian Charter of Rights and Freedoms and/or the Canadian Human Rights Act
.
Bill of rights
A bill of rights is a list of the most important rights of the citizens of a country. The purpose of these bills is to protect those rights against infringement. The term "bill of rights" originates from England, where it referred to the Bill of Rights 1689. Bills of rights may be entrenched or...
and human rights
Human rights
Human rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...
code passed by the National Assembly of Quebec
National Assembly of Quebec
The National Assembly of Quebec is the legislative body of the Province of Quebec. The Lieutenant Governor and the National Assembly compose the Parliament of Quebec, which operates in a fashion similar to those of other British-style parliamentary systems.The National Assembly was formerly the...
on June 27, 1975. It received Royal Assent
Royal Assent
The granting of royal assent refers to the method by which any constitutional monarch formally approves and promulgates an act of his or her nation's parliament, thus making it a law...
from Lieutenant Governor
Lieutenant Governor of Quebec
The Lieutenant Governor of Quebec : Lieutenant-gouverneur du Québec, or : Lieutenant-gouverneure du Québec) is the viceregal representative in Quebec of the Canadian monarch, Queen Elizabeth II, who operates distinctly within the province but is also shared equally with the ten other jurisdictions...
Hugues Lapointe
Hugues Lapointe
Hugues Lapointe, PC, OC, CD, QC was a Canadian lawyer, Member of Parliament and 22nd Lieutenant Governor of Quebec from 1966 to 1978....
, coming into effect on June 28, 1976.
Introduced by the Liberal government of Robert Bourassa
Robert Bourassa
Jean-Robert Bourassa, was a politician in Quebec, Canada. He served as the 22nd Premier of Quebec in two different mandates, first from May 12, 1970, to November 25, 1976, and then from December 12, 1985, to January 11, 1994, serving a total of just under 15 years as Provincial Premier.-Early...
, the charter followed extensive preparatory work that began under the Union Nationale government of Daniel Johnson
Daniel Johnson
Daniel Johnson may refer to* Daniel Johnson , English buccaneer* Daniel Johnson, Sr. , politician, leader of the Union Nationale party and Quebec premier, 1966–1968* Daniel Johnson, Jr...
. The charter ranks among other quasi-constitutional Quebec laws, such as the Charter of the French Language
Charter of the French Language
The Charter of the French Language , also known as Bill 101 and Loi 101, is a law in the province of Quebec in Canada defining French, the language of the majority of the population, as the only official language of Quebec, and framing fundamental language rights for everyone in the province...
and the Act respecting Access to documents held by public bodies and the Protection of personal information. Having precedence over all provincial legislation (including the latter), the Charter of Human Rights and Freedoms stands at the pinnacle of Quebec's legal system. Only the Constitution of Canada
Constitution of Canada
The Constitution of Canada is the supreme law in Canada; the country's constitution is an amalgamation of codified acts and uncodified traditions and conventions. It outlines Canada's system of government, as well as the civil rights of all Canadian citizens and those in Canada...
, including the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
, enjoys priority over the Quebec charter.
Provisions
The Charter of Human Rights and Freedoms consists of six parts:- Part I defines fundamental human rightsHuman rightsHuman rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...
. Its six chapters enunciate fundamental freedoms and rights, equality rights, political rights, judicial rights, economic and social rights, and interpretative provisions.
- Part II establishes the Commission des droits de la personne et des droits de la jeunesseCommission des droits de la personne et des droits de la jeunesseThe Commission des droits de la personne et des droits de la jeunesse is a government agency created by the Quebec Charter of Human Rights and Freedoms in 1975....
(Human Rights and Youth Rights Commission). The commission is responsible for promoting and upholding the principles of the charter by any appropriate measures, including investigating possible cases of discrimination and the instigation of litigation. Members of the commission are appointed by the National Assembly. The commission's staff members do not belong to the Civil Service, in order to safeguard their independence.
- Part III provides for affirmative action programs.
- Part IV guarantees rights to privacy.
- Part V gives the government regulatory powers.
- Part VI establishes the Human Rights Tribunal, whose members are chosen from among the judiciary.
Comparison with other human rights instruments
The Charter of Human Rights and Freedoms is unique among Canadian (and North American) human rights documents in that it covers not only the fundamental (civil and political) human rights, but also a number of important social and economic rights. The protections contained in the charter are inspired by the Universal Declaration of Human RightsUniversal Declaration of Human Rights
The Universal Declaration of Human Rights is a declaration adopted by the United Nations General Assembly . The Declaration arose directly from the experience of the Second World War and represents the first global expression of rights to which all human beings are inherently entitled...
, the International Covenant on Civil and Political Rights
International Covenant on Civil and Political Rights
The International Covenant on Civil and Political Rights is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966, and in force from March 23, 1976...
and the International Covenant on Economic, Social and Cultural Rights
International Covenant on Economic, Social and Cultural Rights
The International Covenant on Economic, Social and Cultural Rights is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966, and in force from January 3, 1976...
. Furthermore, the list of prohibited grounds of discrimination included in the Quebec charter is extensive; a total of fourteen prohibited grounds are enumerated, including race, colour, ethnic or national origin, sex, pregnancy and age. "Social condition" has been a prohibited ground of discrimination since the charter came into force. Discrimination based on sexual orientation has been prohibited since 1977; with that change, Quebec became the first jurisdiction larger than a city or county to prohibit anti-gay discrimination.
Enforceability
An illicit violation of the charter, whether by a private party or by the provincial CrownMonarchy in Quebec
By the arrangements of the Canadian federation, Canada's monarchy operates in Quebec as the core of the province's Westminster-style parliamentary democracy and constitution. As such, the Crown within Quebec's jurisdiction is referred to as the Crown in Right of Quebec , Her Majesty in Right of...
, may give rise to a cease-and-desist order and to compensation for damages. Punitive damages may be awarded in case of an intentional and unlawful violation.
The Charter of Human Rights and Freedoms is called quasi-constitutional because, according to section 52, no provision of any other act passed by the Quebec National Assembly may derogate from sections 1 to 38, unless such act expressly states that it applies despite the charter. A total impossibility to adopt derogating laws could be considered incompatible with parliamentary sovereignty
Parliamentary sovereignty
Parliamentary sovereignty is a concept in the constitutional law of some parliamentary democracies. In the concept of parliamentary sovereignty, a legislative body has absolute sovereignty, meaning it is supreme to all other government institutions—including any executive or judicial bodies...
, a fundamental principle in political systems following the British tradition; however, Canada, of which Quebec is a province, has a tradition of constitutional supremacy. Its Constitution, which includes the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
, is supreme, binding the federal parliament and the legislative assemblies of Canada's provinces and territories.
The Quebec charter's supremacy under its section 52 applies to the following categories of rights: fundamental rights and freedoms (the right to life, free speech, freedom of religion, the right to privacy, etc.); the right to equality; political rights; and judicial rights. Economic and social rights do not enjoy supremacy but, according to the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
in the 2002 case of Gosselin v. Quebec (Attorney General)
Gosselin v. Quebec (Attorney General)
Gosselin v. Quebec [2002] 4 S.C.R. 429, 2002 SCC 84, is a leading Supreme Court of Canada case in which the Court rejected a Charter challenge against a Quebec law excluding citizens under 30 from receiving full social security benefits....
, failure to respect such a right may give rise to a judicial declaration of violation.
The charter provides for a specific machinery in cases of discrimination (or exploitation of an elderly or handicapped person). Instead of introducing litigation in court, victims of such a violation may file a complaint with the Human Rights and Youth Rights Commission. The commission will investigate the matter and attempt to foster a settlement between the parties. It may recommend corrective measures. If those are not followed, the commission may introduce litigation before a court (usually, but not necessarily, the Human Rights Tribunal). Victims will be represented free of charge by the commission.
The Quebec charter does not apply to federally regulated activities in Quebec. Those are subject to the Canadian Charter of Rights and Freedoms and/or the Canadian Human Rights Act
Canadian Human Rights Act
The Canadian Human Rights Act is a statute originally passed by the Parliament of Canada in 1977 with the express goal of extending the law to ensure equal opportunity to individuals who may be victims of discriminatory practices based on a set prohibited grounds such as gender, disability, or...
.
Notable case law
Notable cases decided under the Charter include:- Ford v. Quebec (Attorney General)Ford v. Quebec (Attorney General)Ford v. Quebec , [1988] 2 S.C.R. 712 is a landmark Supreme Court of Canada decision in which the Court struck down part of the Charter of the French Language, commonly known as Bill 101. This law had restricted the use of commercial signs written in languages other than French...
, [1988] 2 S.C.R. 712 : Freedom of expression and signs - Devine v. Quebec (Attorney General)Devine v. Quebec (Attorney General)Devine v. Quebec , [1988] 2 S.C.R. 790 is a leading Supreme Court of Canada decision on the constitutional protection of minority language rights.-Background:...
[1988] 2 S.C.R. 790 : Freedom of expression - Tremblay v. DaigleTremblay v. DaigleTremblay v. Daigle [1989] 2 S.C.R. 530, was a decision of the Supreme Court of Canada in which it was found that a fetus has no legal status in Canada as a person, either in Canadian common law or in Quebec civil law...
[1989] 2 S.C.R. 530 : Abortion - Godbout v. Longueuil (City)Godbout v. Longueuil (City)Godbout v. Longueuil , [1997] 3 S.C.R. 844 is a leading Supreme Court of Canada decision where the Court found that the city of Longueuil that required all permanent employees to reside within the municipality was in violation of the Quebec Charter of Human Rights and Freedoms and the Canadian...
, [1997] 3 S.C.R. 844 : Residency requirements - Aubry v. Éditions Vice-Versa inc.Aubry v. Éditions Vice-Versa inc.Aubry v. Éditions Vice-Versa inc., [1998] 1 S.C.R. 591, was a decision by the Supreme Court of Canada in which the claimant, Pascale Claude Aubry, brought an action against Éditions Vice-Versa for publishing a photo taken of her in public. She claimed the photographing was a violation of her right...
, [1998] 1 S.C.R. 591 : Privacy rights - Gosselin v. Quebec (Attorney General)Gosselin v. Quebec (Attorney General)Gosselin v. Quebec [2002] 4 S.C.R. 429, 2002 SCC 84, is a leading Supreme Court of Canada case in which the Court rejected a Charter challenge against a Quebec law excluding citizens under 30 from receiving full social security benefits....
[2002] 4 S.C.R. 429, 2002 SCC 84 : Social rights - Syndicat Northcrest v. AmselemSyndicat Northcrest v. AmselemSyndicat Northcrest v. Amselem [2004] 2 S.C.R. 551 was a decision of the Supreme Court of Canada that attempted to define freedom of religion under the Quebec Charter of Human Rights and Freedoms and section 2 of the Canadian Charter of Rights and Freedoms...
[2004] 2 S.C.R. 551 : Freedom of religion - Gosselin (Tutor of) v. Quebec (Attorney General)Gosselin (Tutor of) v. Quebec (Attorney General)Gosselin v. Quebec , [2005] 1 S.C.R. 238, 2005 SCC 15 is a leading Supreme Court of Canada on the constitutional protection of minority language rights under section 23 of the Canadian Charter of Rights and Freedoms. The case was part of a trilogy of minority language rights cases including Solski...
[2005] 1 S.C.R. 238 : Minority language education - Chaoulli v. Quebec (Attorney General)Chaoulli v. Quebec (Attorney General)Chaoulli v. Quebec [2005] 1 S.C.R. 791, was a decision by the Supreme Court of Canada where the Court ruled that the Quebec Health Insurance Act and the Hospital Insurance Act prohibiting private medical insurance in the face of long wait times violated the Quebec Charter of Human Rights and...
[2005] 1 S.C.R. 791 : Health care