← Back to home

Charter Of Human Rights And Freedoms

This article is about Quebec's charter. For the national charter, see Canadian Charter of Rights and Freedoms.

Activities

Theory / concepts

Issues

Organizations

People

Related

1976 Bill of Rights and Human Rights Code: The Charter of Human Rights and Freedoms

The Charter of Human Rights and Freedoms (in French: Charte des droits et libertés de la personne, pronounced [ʃaʁt de dʁwa e libɛʁte də la pɛʁsɔn]), commonly referred to simply as the "Quebec Charter," represents a pivotal piece of statutory legislation in the province of Quebec. This comprehensive bill of rights and human rights code was formally adopted by the National Assembly of Quebec on June 27, 1975. Its journey to becoming law concluded with the receipt of royal assent from Lieutenant Governor Hugues Lapointe, officially bringing it into effect on June 28, 1976.

The genesis of this Charter can be traced back to a period of "extensive preparatory work," a phrase that often masks years of political maneuvering, legal debate, and public advocacy. This groundwork commenced under the Union Nationale government led by Daniel Johnson and was ultimately brought to fruition and introduced by the Liberal government under Robert Bourassa. Its passage marked a significant stride for Quebec, establishing a robust framework for the protection of individual liberties and dignity within its jurisdiction, even preceding the eventual adoption of the national Canadian Charter of Rights and Freedoms.

The Charter is built upon the fundamental premise that every individual within Quebec's borders possesses inherent equality in both value and dignity. It isn't merely a philosophical statement; it's a legal instrument designed to enforce these principles. Its primary objectives are twofold: to guarantee a comprehensive array of human rights and to foster harmonious relations, not only among citizens but also between citizens and the various institutions that govern their lives. Critically, the Charter's reach extends broadly, binding the state itself—encompassing the legislature, executive, and administrative branches—and equally applying to private law relations, meaning it governs interactions between private persons or entities. To ensure its practical application and enforcement, the Charter also established two vital bodies: the Commission des droits de la personne et des droits de la jeunesse (Human Rights and Youth Rights Commission, often known by its acronym "CDPDJ"), which is tasked with promoting and actively applying the Charter's provisions, and the Human Rights Tribunal of Québec (in French: Tribunal des droits de la personne), an adjudicative body responsible for hearing cases related to Charter violations.

Within Quebec's intricate legal landscape, the Charter holds a unique and elevated position, ranking among other quasi-constitutional provincial statutes. These include notable 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. The Quebec Charter of Human Rights and Freedoms effectively stands at the pinnacle of Quebec's provincial legal system, enjoying precedence over all other provincial legislation, including those mentioned previously. However, it's important to note that its supremacy is not absolute. Only the overarching Constitution of Canada, which naturally includes the Canadian Charter of Rights and Freedoms, holds a superior legal authority to the Quebec Charter. This hierarchy reflects Canada's federal structure, where provincial laws operate within the bounds set by the national constitution. It is also worth observing that while Quebec was a pioneer in this regard, other Canadian provinces and territories have subsequently adopted similar human rights legislation, albeit with their own unique characteristics and scopes.

Provisions

The Charter of Human Rights and Freedoms is meticulously structured, consisting of seven distinct parts, each addressing a specific facet of human rights protection and enforcement. This segmented approach allows for a clear delineation of rights, responsibilities, and mechanisms for redress.

  • Part I: Fundamental Human Rights Defined. This foundational section is the heart of the Charter, articulating the core entitlements of every individual in Quebec. It is further subdivided into six crucial chapters:

    • Fundamental Freedoms and Rights: Encompasses essential liberties such as freedom of conscience, religion, opinion, expression, peaceful assembly, and association – the bedrock of any free society, even if one must occasionally remind people of their existence.
    • Equality Rights: Prohibits discrimination based on a wide range of grounds, ensuring that all individuals are treated equally before the law and have equal access to rights, regardless of their background or personal characteristics.
    • Political Rights: Guarantees the right to vote and to be eligible for candidacy, ensuring democratic participation.
    • Judicial Rights: Outlines crucial protections within the legal system, including the right to legal counsel, the presumption of innocence, and protection against arbitrary detention or cruel and unusual punishment. These are the rights that remind the state it can't just do whatever it wants.
    • Economic and Social Rights: A particularly progressive aspect, covering rights related to education, public services, decent working conditions, and even the right to a healthful environment. These are the rights that acknowledge a society's responsibility to its members, beyond just keeping them from being actively harmed.
    • Interpretative Provisions: Provides guidelines for how the Charter's provisions should be understood and applied, ensuring consistency and broad interpretation in favor of human rights.

  • Part II: Establishing the Commission des droits de la personne et des droits de la jeunesse. This part formally establishes the Human Rights and Youth Rights Commission, an independent body crucial for the Charter's practical implementation. The commission's mandate is broad, encompassing the promotion and active upholding of the Charter's principles through various appropriate measures. This includes, but is not limited to, investigating potential cases of discrimination, mediating disputes, and even initiating litigation when necessary to protect rights. To safeguard its impartiality and effectiveness, the commission's members are appointed directly by the National Assembly, and its staff members are explicitly kept outside the direct purview of the Civil Service, thereby ensuring a degree of operational independence from the government it may sometimes need to challenge.

  • Part III: Affirmative Action Programs. This section provides for the implementation of affirmative action programs. It recognizes that formal equality is not always sufficient to overcome historical disadvantages and that proactive measures may be required to achieve substantive equality for certain groups. It's a recognition that sometimes, you have to actively push the scales back into balance.

  • Part IV: Guaranteeing Rights to Privacy. This part explicitly enshrines the right to privacy, a fundamental aspect of individual autonomy and dignity. It protects individuals from unwarranted intrusion into their personal lives, communications, and personal information, a concept whose importance only seems to grow with each passing decade.

  • Part V: Government Regulatory Powers. This section delineates the government's powers to enact regulations in areas related to human rights, ensuring that administrative actions align with the Charter's objectives and do not inadvertently undermine protected rights.

  • Part VI: Establishing the Human Rights Tribunal of Quebec. This part formally creates the Human Rights Tribunal, a specialized adjudicative body. Its members, who are responsible for rendering decisions on complaints, are carefully selected from the judiciary, emphasizing their legal expertise and independence. The Tribunal serves as a crucial forum for victims of discrimination or other Charter violations to seek justice and redress.

  • Part VII: Final Dispositions and Punitive Sanctions. This concluding section outlines the final administrative and legal dispositions of the Charter. It also includes provisions for punitive sanctions, indicating that violations of the Charter are not merely civil wrongs but can carry significant legal consequences, particularly in cases of intentional and unlawful breaches. Because sometimes, a warning isn't enough.

Comparison with other human rights instruments

The Charter of Human Rights and Freedoms holds a particularly distinctive position among Canadian, and indeed North American, human rights documents. Its uniqueness stems from its remarkably comprehensive scope, which extends beyond the traditional enumeration of fundamental civil and political rights to explicitly include a substantial number of vital social and economic rights. While most bills of rights focus on protections from state interference (negative rights), the Quebec Charter also embraces positive rights, recognizing that true human dignity often requires access to certain basic societal provisions.

This expansive approach was notably inspired by a triumvirate of international human rights instruments: the Universal Declaration of Human Rights, which serves as a global benchmark for fundamental rights; the International Covenant on Civil and Political Rights, detailing protections for individual liberties; and, crucially, the International Covenant on Economic, Social and Cultural Rights, which emphasizes rights related to work, health, education, and an adequate standard of living. By drawing from all three, Quebec crafted a Charter that aimed for a more holistic vision of human rights, acknowledging the interconnectedness of these different categories.

Furthermore, the Charter distinguishes itself through its exceptionally extensive list of prohibited grounds of discrimination. While other jurisdictions might offer a basic roster, the Quebec Charter enumerates a total of fourteen distinct grounds, making it one of the most inclusive in its time. These grounds include well-established categories such as race, colour, ethnic or national origin, sex, pregnancy, age, and disability. The inclusion of "language" as a prohibited ground reflects Quebec's unique linguistic context and its commitment to protecting both its French-speaking majority and its English-speaking minority.

Perhaps most groundbreaking was the Charter's early stance on "social condition," which has been a prohibited ground of discrimination since its very inception. This recognizes that socio-economic disadvantage can be a basis for systemic discrimination, a foresight that many other jurisdictions took far longer to adopt. In a particularly prescient move, discrimination based on sexual orientation was added to the Charter in 1977. With this amendment, Quebec earned the distinction of becoming the first jurisdiction larger than a mere city or county in North America—and indeed, one of the first in the world—to explicitly prohibit anti-gay discrimination. This was not a minor legislative tweak; it was a profound statement of equality in an era when such protections were rare and often met with significant resistance. More recently, in 2016, the Charter continued its evolution by adding gender identity or expression to its list of protected characteristics, further cementing its commitment to comprehensive equality in a rapidly changing social landscape. One might call it progress, if one were prone to such optimism, but mostly it's just basic decency catching up.

Enforceability

Enforceability to the public and private sectors

The Charter of Human Rights and Freedoms possesses a formidable breadth of enforceability, a characteristic that underscores its profound significance within Quebec's legal framework. It is designed to bind every person, group, institution, and private entity within the province, alongside all public and private services. Crucially, the government of Quebec itself, including its myriad institutions and municipal and school governmental administrations, is equally bound by the Charter's provisions. This dual application to both public and private spheres is a powerful feature, ensuring that human rights are protected not only from state overreach but also from discrimination or infringement by private actors.

The practical implication of this extensive reach is that any illicit violation of the Charter, whether perpetrated by a private individual or corporation, or by the provincial Crown (i.e., the Quebec government), can give rise to significant legal consequences. These can include a cease-and-desist order, compelling the offending party to halt the discriminatory or rights-violating conduct, as well as compensation for damages suffered by the victim. Furthermore, in cases where a violation is deemed intentional and unlawful, punitive damages may be awarded. This serves as a potent deterrent, signaling that deliberate disregard for the Charter's protections will incur severe penalties.

However, the Charter's jurisdiction is not boundless. It does not extend to federally regulated activities operating within Quebec. This distinction is a fundamental aspect of Canada's federal system, where legislative authority is divided between the federal and provincial governments. Consequently, entities such as federal public services, national banks, telecommunications companies (e.g., CBC, Bell, Rogers), and inter-provincial or international transport services (e.g., Air Canada, Via Rail) are not subject to the Quebec Charter. Instead, these entities fall under the purview of federal human rights legislation, primarily the Canadian Charter of Rights and Freedoms and/or the Canadian Human Rights Act. It's a testament to the complexities of layered governance, where one must always remember which level of government is currently unimpressed with your actions.

Quasi-constitutional status

The Charter of Human Rights and Freedoms is often described as "quasi-constitutional," a term that hints at its elevated, yet not absolute, legal standing within Quebec. This designation is rooted in section 52 of the Charter itself, which stipulates that "No provision of any Act, even subsequent to the Charter, may derogate from sections 1 to 38 of this Charter, unless such Act expressly states that it applies despite the Charter." This clause effectively grants sections 1 to 38—which encompass fundamental rights and freedoms, equality rights, political rights, and judicial rights—a superior legal weight. Any ordinary provincial legislation that conflicts with these sections would be rendered inoperative, unless the National Assembly of Quebec explicitly invokes this "notwithstanding" provision.

This mechanism functions as a provincial equivalent to the notwithstanding clause found in the Canadian Charter of Rights and Freedoms. It allows the legislature, under specific circumstances and with clear intent, to pass laws that may temporarily override certain fundamental rights. The existence of such a clause touches upon a long-standing debate in constitutional law: the tension between parliamentary sovereignty and constitutional supremacy. In political systems following the British tradition, parliamentary sovereignty suggests that parliament is the supreme law-making body and cannot be bound by previous legislation. However, Canada, as a constitutional monarchy with a written constitution, operates under a principle of constitutional supremacy. Its Constitution, which includes the federal Canadian Charter of Rights and Freedoms, is the supreme law of the land, binding both the federal parliament and the legislative assemblies of all provinces and territories. The Quebec Charter's quasi-constitutional status, therefore, navigates this complex terrain, granting it significant power while still acknowledging the ultimate authority of the federal Constitution. It's a delicate balance, much like trying to walk a tightrope while carrying a stack of legal precedents.

The non-supremacy of economic and social rights

A critical nuance within the Quebec Charter's framework concerns the enforceability of its economic and social rights. While the Charter grants supremacy to its fundamental rights and freedoms, equality rights, political rights, and judicial rights (sections 1 to 38, as per section 52), the same level of entrenched protection does not extend to economic and social rights. These rights, though enshrined in the Charter, do not enjoy the same "notwithstanding clause" protection that shields other rights from legislative derogation.

This distinction is not arbitrary. Economic and social rights often require positive action from the state – the allocation of resources, the creation of programs, or the establishment of public services – rather than merely refraining from interference. Such positive obligations frequently have significant budgetary implications and involve complex policy choices, which courts are generally reluctant to dictate directly. Nevertheless, the fact that these rights do not enjoy full supremacy does not render them toothless. As affirmed by the Supreme Court of Canada in the landmark 2002 case of Gosselin v. Quebec (Attorney General), a failure to respect such a right may still give rise to a judicial declaration of violation. While this might not immediately compel the government to enact specific policies or allocate funds, it serves as a powerful legal statement, highlighting a legislative or governmental failure to uphold its Charter obligations and providing a basis for future legal or political action. It’s a subtle but important difference, like the distinction between a warning shot and a direct hit.

The Human Rights Commission and the Human Rights Tribunal

To provide a practical and accessible avenue for redress, the Charter of Human Rights and Freedoms meticulously outlines specific machinery for addressing violations, particularly in cases of discrimination or the exploitation of vulnerable individuals, such as the elderly or persons with disabilities. Rather than immediately plunging into the formal court system, victims of such infringements are presented with a more specialized pathway: they may file a complaint directly with the Human Rights and Youth Rights Commission (CDPDJ).

Upon receiving a complaint, the Commission undertakes a thorough investigation into the matter. Its primary objective during this phase is often to facilitate a settlement between the aggrieved parties, seeking a resolution that avoids protracted legal battles. The Commission possesses the authority to recommend a range of corrective measures, which can include apologies, policy changes, or financial compensation. Should these recommendations not be followed, or if a settlement cannot be reached, the Commission is empowered to initiate litigation before a court. While this often, though not exclusively, means bringing the case before the Human Rights Tribunal of Quebec, the Commission retains discretion in its choice of forum. A significant benefit for victims is that, subject to the Commission's assessment and discretion, they can be represented free of charge throughout this process. This provision is crucial for ensuring access to justice, particularly for individuals who may lack the financial resources or legal expertise to pursue a complaint independently. It’s a system designed to be less intimidating than direct court action, which, given the typical bureaucratic nightmare, is a minor miracle.

History

The Charter of Human Rights and Freedoms was not born in a vacuum; its creation was the culmination of substantial "preparatory work" that began well before its formal introduction. This extensive groundwork originated under the Union Nationale government led by Daniel Johnson, reflecting a growing societal recognition of the need for codified human rights protections. Before the Charter's adoption, Quebec, unlike some other Canadian provinces, did not possess a dedicated statutory Bill of Rights. While the existing Civil Code (Code civil du Bas-Canada) offered some rudimentary protections for certain Human Rights and Freedoms, these were generally considered insufficient and scattered, lacking the comprehensive and overarching authority of a dedicated charter.

A significant catalyst for the Charter's eventual passage was the relentless advocacy of the Ligue des droits de l'Homme, now known as the Ligue des droits et libertés. This organization played a pivotal role in convincing successive governments of the paramount importance of safeguarding Human Rights through a specific, robust piece of legislation. Their persistent lobbying and public education efforts laid much of the popular and political groundwork. The intellectual architects of the Charter included many renowned law professors of the era, individuals whose expertise shaped the very fabric of the document. Luminaries such as Paul-André Crépeau, Jacques-Yvan Morin, and Frank Scott contributed their considerable legal acumen to the drafting of the Bill, ensuring its coherence, foresight, and alignment with contemporary human rights principles.

The Bill, which would ultimately become the Quebec Charter, was formally introduced before the National Assembly of Quebec on October 29, 1974, by the then-Minister of Justice, the liberal Jérôme Choquette. Following a period of legislative debate and deliberation, the Charter was adopted unanimously by the Assembly on June 27, 1975, a rare display of political consensus on such a foundational piece of legislation. It then officially came into force nearly a year later, on June 28, 1976.

Since its enactment, the Charter has not remained static; it has been periodically modified to better guarantee and reflect evolving understandings of Human Rights. These amendments demonstrate a legislative commitment to adapt the Charter to new societal challenges and to rectify previous oversights, because, apparently, some principles require reiteration, or perhaps, a legislative sledgehammer.

  • 1977: In a truly pioneering move for its time, sexual orientation was explicitly added among the forbidden grounds of discrimination (s. 10). This made Quebec a trailblazer in LGBTQ+ rights, a fact often overlooked.
  • 1979: The right of every worker to fair and reasonable conditions of employment, with proper regard for their health, safety, and physical well-being, was incorporated into the economic and social rights (s. 46). A basic expectation, one might think, but sometimes even the obvious needs to be written down.
  • 1982: This year saw several significant additions: the Charter was modified to explicitly forbid discriminatory harassment (s. 10.1); discrimination in employment based on criminal records was prohibited (s. 18.2); and disability, pregnancy, and age were formally added as prohibited grounds of discrimination (s. 10). Furthermore, Part III of the Charter, which regulates Affirmative action programs, was also introduced, aiming to address systemic inequalities.
  • 1989: A major structural change occurred with the addition of Part IV, establishing the Human Rights Tribunal. Concurrently, Part II, governing the role and powers of the Human Rights Commission, was modified to align with the creation of this new adjudicative body.
  • 2006: The Charter expanded its scope to include environmental rights, adding the right of every person to live in a healthful environment in which biodiversity is preserved amongst the economic and social rights (s. 46.1). A necessary recognition, given the relentless march of ecological decline.
  • 2008: To further strengthen equality, the Charter explicitly provided that all rights and freedoms must be guaranteed equally between men and women (s. 50.1), reinforcing gender parity across all its provisions.
  • 2019: The principle of State laicity (State secularism) was formally added at s. 9.1 and integrated into the Preamble of the Charter, reflecting a specific vision of the relationship between state and religion in Quebec.
  • 2022: The importance of protecting the French language was further codified, added to s. 9.1 and the Preamble of the Charter. Additionally, the Charter now guarantees the right to live in French (s. 3.1), and a new paragraph was appended to s. 50, stipulating that the Charter cannot be interpreted in a way that would suppress or restrict any right aimed at protecting the French language. A clear assertion of linguistic identity within the human rights framework.

It is crucial to recognize that the evolution of the Charter, and the interpretation of its dispositions, is not solely a product of legislative amendments. While the legislator modifies the text, the practical application and understanding of the Charter are also significantly shaped by the decisions rendered by the courts, and perhaps more profoundly, by the continuous struggles and advocacy carried out by civil society. Rights, it seems, are rarely granted; they are usually fought for, repeatedly.

Notable case law

The Charter of Human Rights and Freedoms has been the subject of numerous critical legal challenges, leading to landmark decisions that have profoundly shaped its interpretation and application within Quebec and, in many instances, across Canada. These cases, often reaching the Supreme Court of Canada, have clarified the scope of various rights and the Charter's interaction with other laws.

  • Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712: This seminal case addressed the contentious issue of freedom of expression, specifically concerning the mandatory use of French on commercial signs under Quebec's Charter of the French Language. The Supreme Court ruled that certain provisions of the French Language Charter violated the freedom of expression guaranteed by both the Quebec Charter and the Canadian Charter of Rights and Freedoms, particularly by prohibiting the use of other languages.
  • Devine v. Quebec (Attorney General) [1988] 2 S.C.R. 790: Heard concurrently with Ford, this case further elaborated on freedom of expression in the context of commercial signs. It reinforced the principle that while Quebec could promote French, it could not entirely suppress the use of other languages on signs, affirming the broad protection of linguistic expression.
  • Tremblay v. Daigle [1989] 2 S.C.R. 530: A highly sensitive case concerning abortion. The Supreme Court decisively ruled that a fetus is not a "human being" under the Quebec Charter, and therefore, a father could not obtain an injunction to prevent his former partner from having an abortion. This affirmed a woman's autonomy over her body under the Charter, a decision that, predictably, pleased some and infuriated others.
  • Godbout v. Longueuil (City), [1997] 3 S.C.R. 844: This case dealt with residency requirements imposed by a municipality for employment. The Supreme Court found that a municipal by-law requiring employees to reside within the city limits violated the right to liberty and equality under the Quebec Charter, as it impinged on an individual's freedom to choose their domicile.
  • Aubry v. Éditions Vice-Versa inc., [1998] 1 S.C.R. 591: This case clarified the scope of privacy rights. The Supreme Court ruled that the unauthorized publication of a photograph of an individual in a public place, for commercial purposes, violated that individual's right to privacy under the Quebec Charter, even if the person was not identified by name. It established that a person's image, even if captured in public, is part of their protected private sphere.
  • Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montreal (City of); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City of), 2000 SCC 27: These cases addressed discrimination based on disability (handicap). The Supreme Court affirmed that municipalities have a duty to reasonably accommodate individuals with disabilities, even if it requires modifications to public infrastructure, reinforcing the proactive nature of equality rights.
  • Gosselin v. Quebec (Attorney General) [2002] 4 S.C.R. 429, 2002 SCC 84: This case specifically examined the enforceability of social rights under the Quebec Charter. While the Supreme Court ultimately upheld the legality of a lower welfare benefit for young adults, it importantly affirmed that social rights, though not supreme, are indeed justiciable and can give rise to a judicial declaration of violation, even if they don't always lead to a mandated policy change.
  • Syndicat Northcrest v. Amselem [2004] 2 S.C.R. 551: This case focused on freedom of religion in a co-ownership context. The Supreme Court ruled that a condominium syndicate could not prohibit Jewish residents from building sukkahs on their balconies during the Sukkot holiday, as this infringed upon their freedom of religion under the Quebec Charter. It emphasized a broad and generous interpretation of religious freedom.
  • Gosselin (Tutor of) v. Quebec (Attorney General) [2005] 1 S.C.R. 238: This case concerned minority language education rights. The Supreme Court upheld the constitutionality of Quebec's language laws regarding eligibility for English-language schooling, finding they were consistent with the Canadian Charter of Rights and Freedoms and the Quebec Charter.
  • Chaoulli v. Quebec (Attorney General) [2005] 1 S.C.R. 791: This highly publicized case challenged the prohibition on private health insurance for services covered by the public system. The Supreme Court, in a split decision, found that the prohibition on private health insurance violated the right to life and security of the person under the Quebec Charter (and the Canadian Charter) when public system delays posed a risk to health. It sparked significant debate about the future of healthcare in Canada.
  • Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16: This case addressed the principle of state neutrality in religious matters. The Supreme Court ruled that a municipal council's practice of reciting a prayer before meetings violated the freedom of conscience and religion under the Quebec Charter, affirming the state's duty of religious neutrality.
  • Ward v. Quebec (Commission des droits de la personne et des droits de la jeunesse), 2021 SCC 43: This case dealt with discriminatory remarks and the complex conflict of rights, specifically between freedom of expression and the right to dignity. The Supreme Court upheld that certain comments made by a comedian about a disabled singer did not constitute discrimination under the Quebec Charter, emphasizing the high threshold for proving discrimination in the context of artistic expression. A nuanced decision, illustrating that not every offensive statement crosses the line into a Charter violation.

See also