Quebec Charter of Human Rights and Freedoms

LawNewsOpinionPolitics

Canada is a secular society, but we are a society that has recognized that secular laws and practices can coexist with many people’s religious beliefs and expressions. It is why in Montreal, for example, Jews, Muslims, Sikhs and seculars live together in relative harmony. If Quebec Premier François Legault gets his way, this might all change.

Legault and his Coalition Avenir du Quebec party ran on a platform of promising to bar people who wear religious symbols from positions of authority in the province. They are attempting to do this with Bill 21.

This article is not going to discuss how the CAQ is so clearly pandering to the most disgustingly racist, xenophobic members of Quebec society. It is not going to talk about how the Bill represents the longstanding dispute between welcoming, diverse, multicultural Montreal and the rest of Quebec.

This article is going to talk about what Bill 21 actually contains and the very real fallout for the Quebecois affected if the bill passes. For the purposes of this article, “Quebecois” means anyone living in Quebec (and not just people descended from the original French settlers).

Bill 21 contains important changes to the Quebec Charter of Human Rights, a quasi-constitutional law enacted in the 70s that contains some of Quebec’s strongest protections against discrimination. As the Quebec Charter is only quasi-constitutional, it can be changed by a simple act by the National Assembly.

Bill 21 changes section 9.1 of the Quebec Charter from:

“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.

Section 9.1 Quebec Charter of Human Rights, current text

to:

“In exercising his fundamental freedoms and rights, a person shall maintain a proper regard for democratic values, state laicity, public order and the general well-being of the citizens of Québec.”

Proposed version of Section 9.1 of the Quebec Charter of Human Rights

The change thus creates an obligation among citizens to have respect for democratic values, state secularism, public order etc. in the exercise of their fundamental rights and freedoms under the Quebec Charter. It does not, however, abolish section 10 of the Quebec Charter which states that:

“Every person has a right to full and equal recognition and exercise of his human rights and freedoms, without distinction, exclusion or preference based on race, colour, sex, gender identity or expression, pregnancy, sexual orientation, civil status, age except as provided by law, religion, political convictions, language, ethnic or national origin, social condition, a handicap or the use of any means to palliate a handicap. Discrimination exists where such a distinction, exclusion or preference has the effect of nullifying or impairing such right.”

Section 10 of the Quebec Charter of Human Rights

The Charter also forbids discrimination in “the hiring, apprenticeship, duration of the probationary period, vocational training, promotion, transfer, displacement, laying-off, suspension, dismissal or conditions of employment” based on the aforementioned grounds. As these sections of the Quebec Charter remain on the books, any institutions that enforce Bill 21 could find themselves open to legal action under said Charter which also states victims’ rights in such cases:

“Any unlawful interference with any right or freedom recognized by this Charter entitles the victim to obtain the cessation of such interference and compensation for the moral or material prejudice resulting therefrom. In case of unlawful and intentional interference, the tribunal may, in addition, condemn the person guilty of it to punitive damages.”

Quebec Charter of Human Rights

Matt Aronson, a lawyer in Montreal says that “if a state funded institution practices discrimination as an employer, causing damages to a citizen, it’s possible that not only could a citizen sue to have the discrimination stopped, they may even be able to sue for punitive damages. Now, there is a section of the Quebec Charter that allows for rights and freedoms to be limited in scope by laws, but that would be a fairly difficult retort to state sanctioned discrimination.”

As a result, the government can and will find itself open to costly lawsuits if Bill 21 passes as increasing numbers of people have publicly committed to fighting back.. The English Montreal School Board, for example, has publicly stated that they will not enforce the Bill, and a public protest in scheduled on Sunday, April 7th, in Montreal.

True to Legault’s election promise, Bill 21 bars government employees from wearing religious symbols in the exercise of their functions. This is the list of employees who will be affected – I am including the full list so people fully understand how many will be hurt if this law passes:

  • Judges, clerks, deputy clerks, and sheriffs
  • Members of the Comité de déontologie policiere – the group responsible for holding police to account for misconduct
  • Members of the Commission de la fonction publique
  • Members of the Commission de la protection du territoire agricole
  • Members of the Commission des transports du Quebec
  • Members of the Commission Municipale
  • Members of the Commission quebecoise des liberations conditionelles
  • Employees of the Regie de l’energie
  • Employees of the Regie d’alcools, courses, et jeux
  • Employees of the Regie des marche agricoles et alimentaires du Quebec
  • Employees of the Regie du batiment du Quebec
  • Employees of the Regie du Logement
  • Members of the Financial Markets Administrative Labour Tribunal
  • Members of the Administrative Tribunal of Quebec
  • Chairs of the Disciplinary Council
  • Commissioners appointed by the government under the Act Respecting Public Inquiry Commissions and lawyers and notaries working for said commissioners
  • Arbitrators appointed by the Minister of Labour in accordance with the Labour Code
  • The Quebec Justice Minister and Attorney General
  • The Director of penal prosecutions
  • Lawyers, notaries, and penal prosecuting attorneys
  • Peace officers who exercise their functions mainly in Quebec
  • Principals, vice principals, and teachers of educational institutions under the jurisdiction of the school boards

It must be noted that the law does contain a grandfather clause allowing all current employees wearing religious symbols to keep their current jobs. That said, anyone hoping for advancement would have to choose between their faith and a promotion to even be considered a candidate for one.

In addition to barring people wearing religious symbols, Bill 21 also demands that some government employees keep their faces uncovered in the exercise of their functions, a provision clearly meant to exclude women who choose to wear the niqab. Those affected include:

  • Members of the National Assembly (MNAs)
  • Elected Municipal officers except in certain Indigenous communities
  • Personnel of elected officers
  • Personnel of MNAs
  • Personnel of the Lieutenant Governor
  • Commissioners appointed by the government under the Act respecting public inquiry commissions
  • Persons appointed by the government to exercise a function within the administrative branch including arbitrators whose name appears on a list drawn up by the Minister of Labour in accordance with the Labour Code
  • Peace officers who work mainly in Quebec
  • Physicians, dentists, and midwives
  • Persons recognized as home childcare providers
  • Anyone else designated by the National Assembly
  • Employees of government departments
  • Any bodies receiving government funds
  • People and bodies appointed in accordance with the Public Service Act
  • Employees of municipalities, metropolitan communities, and intermunicipal boards, and municipal and regional housing bureaus with the exception of some in Indigenous communities
  • Employees of Public Transit Authorities
  • Employees of school boards established under the Education Act
  • Employees of public institutions governed by the Act respecting health services and social services
  • Employees of bodies in which most of the members are appointed by the National Assembly
  • Institutions accredited under the act respecting the Ministere des Relations Internationales
  • Private family-type resources governed by the Act Respecting Health Services

In addition to barring certain government employees from having their face covered in the exercise of their functions, the law also requires certain people to show their faces in order to receive government services “where doing so is necessary to allow their identity for security reasons.”

The law does make an exception where the face is covered for health reasons, a handicap, or requirements tied to their job. The law also says that there will be “no accommodation or derogation or adaptation,” which means there are no exceptions anywhere.

Bill 21 not only alters the Quebec Charter of Human Rights to exonerate the government from open acts of discrimination, it also applies the Notwithstanding Clause of the Canadian Charter of Rights and Freedoms. The Notwithstanding Clause allows governments to bypass articles 2 and articles 7 to 15 of the Canadian Charter of Rights and Freedoms simply by including in a discriminatory law an article stating that said law applies notwithstanding the Charter.

Articles 2 of the Canadian Charter deal with fundamental freedoms including the freedom of conscience and religion, and articles 7 to 15 deal with legal rights including the rights to life, liberty, and security of the person, equal treatment before the law, and the right to be presumed innocent until proven guilty. Article 30 of Bill 21 states that it applies notwithstanding these articles of the Canadian Charter of Rights and Freedoms, though the Notwithstanding clause has a failsafe in it requiring the government to renew the law in five years or open itself to legal challenges when that time expires.

That said, all hope is not lost. The law is currently tabled, meaning that the National Assembly has begun to consider it. It has not, as of the publication of this article, passed.

That means there is still time to resist. If you value our province’s protections against discrimination, contact your members of the National Assembly and pressure them as you never have before.

Point out that Quebec has a labour shortage and alienating and barring people won’t work to solve it. Tell them that the scores lawsuits they’ll face will be more expensive than any benefit they hope to gain if the Bill passes.

Tell them that if they want a truly secular state, all towns and streets and institutions bearing the names of Catholic saints should be changed immediately. Let them know how ridiculous their position is.

The fight is only over if we the people give up, so keep fighting.

Featured Image: Screengrab of François Legault defending Bill 21 in a Facebook video

LawNews

In a decision by the Quebec Court’s Youth Division last week, Judge Annie Savard awarded a mother full custody of her children. The kids, age 11 and 13, had been in foster care for ten years due to their birth mother’s inability keep a steady home and job, and her drug problems.

Now sober and reformed, the mother sought out her kids, only to find that they were being neglected and the foster home they were living in was filthy and vermin infested. Judge Savard agreed, and roasted Batshaw Youth and Family Centers, an organization established under Quebec’s Act Respecting Health Services and Social Services to oversee adoptions, child placements etc. for failing to fulfill their mandate where these two children were concerned.

This article is not about this decision. After years of living in squalor, the children and their mother have been through enough.

This is about youth protection in Quebec.

Youth protection is an issue where criminal laws and provincial civil and youth protection laws cross. Crimes that are committed against people under the age of 18 are punished more harshly than those affecting adults. Sentencing guidelines for young offenders as per the Youth Criminal Justice Act have, among others, the goal of instilling a sense of responsibility in youth.

For the purposes of this article, I am going to focus on cases where young people come to harm at the hands of their caregivers, the rights kids have, and the circumstances in which authorities intervene.

The main law in Quebec governing this matter is the Youth Protection Act (“the Act”). Its goal is to protect children – meaning anyone under the age of 18 – whose safety and development are at risk, and to supplement the Quebec Civil Code’s rules on adoption.

The authorities charged with enforcing it are the Director of Youth Protection or DPJ, the Commission des droits de la personne et des droits de la jeunesse established by the Charter of human rights and freedoms, and the Youth Division of Quebec Court.

Children’s rights as per the act include:

  • The right to receive an education from an educational body
  • Where the DPJ must intervene, the right to be treated with courtesy, fairness, and understanding in a way that respects their dignity and autonomy
  • During an intervention, the right to be provided with information and explanations in language appropriate to their age and level of understanding
  • In the DPJ’s interventions, the right to present their point of view and have their concerns heard
  • Where the child is placed with a foster family or rehabilitation center, the right to consult confidentially with his or her case worker
  • Unless the court decides otherwise, they also have the right to communicate confidentially with their parents and siblings
  • The right to have their identity kept confidential

Unless otherwise decided by a court of law, “the care, maintenance, and education” as well as ensuring the children are supervised lies with their parents.

Any interventions by the Director of Youth Protection have to be conducted in a way as to end and prevent the recurrence of any threats to a child’s safety and development. Said measures must also allow the child and parents to take an active role, where appropriate, in the decisions best for them. Any decisions made by the DPJ have to be made in the interests of the children and in respect for their rights, though they must also have the goal of ideally keeping the child within the family environment.

In cases where a child cannot be kept with their family and must be placed in an institution or foster care, measures must be taken so that the people important to the child, such as grandparents and extended family, can remain in contact. Even in cases where parents no longer care for their children, their involvement in their kids’ lives must be encouraged.

That said, let’s talk about how and when the DPJ can intervene.

The DPJ can inquire into any issue under their jurisdiction. They can and must intervene where the safety and development of the child is in danger. It is considered as such if the child “is abandoned, neglected, subjected to psychological ill-treatment or sexual or physical abuse, or if the child has serious behavioural disturbances”. A child is considered neglected if their basic needs are not met and the act explicitly states that ideological considerations such as notions of honour do not excuse abuse.

Anyone, especially professionals involved in child care, can refer a case to the DPJ. Pollyanna (name has been changed for privacy reasons), a retired social worker, described to me how the DPJ can intervene in cases referred to them from the public health care system.

Social workers at the CLSCs and hospitals will receive a file referred to them by a doctor or nurse detailing their reasons for suspecting a child is at risk. This can include signs of severe malnourishment, poor hygiene, physical abuse, unusual behavior from parents and children, and where files are referred to social workers from obstetrics, the age or behavior of the mom-to-be (i.e. she’s unusually young). It is then up to the social worker to decide whether or not to contact the Director of Youth Protection, but Pollyanna says she preferred to err on the side of caution and contact them anyway.

It is up to the Director of Youth Protection to investigate and decide whether or not to intervene. Pollyanna points out that like most public organizations in Quebec, the DPJ are understaffed and underfunded and therefore only intervene if there is sufficient evidence to support their involvement. In most cases, she said, they do nothing, though they do their due diligence and in emergencies will send someone immediately to deal with it.

Despite their best efforts, the system of youth protection in Quebec has room for improvement. Failure to acknowledge this and work to fix it will only lead to more cases of neglect and abuse.

LawNewsPolitics

On Tuesday, November 7, 2017, Muslim groups and civil liberty advocates launched the constitutional challenge we all knew was coming. Last week, I and many others predicted that Bill 62 would be headed straight for the courts on grounds that it violates the freedoms guaranteed in Canada’s constitution and Quebec’s Charter of Human Rights.

I’m not going to go over the details of Bill 62 as I did that last week. Instead, let’s talk about the legal challenge.

The plaintiffs in the constitutional challenge say in their court filing that:

“Such blatant and unjustified violations of freedom of religion, as well as of the quality guarantees of the Quebec and Canadian charters, have no place in Quebec or Canada,” and that this cannot be justified in a free and democratic society.

The plaintiffs include the National Council of Canadian Muslims, the Canadian Civil Liberties Association, and Warda Naili (formerly Marie-Michelle Lacoste), a convert to Islam who has chosen to wear the niqab as an expression of her faith.

The CBC spoke to some women who wear the niqab, something the Couillard government failed to do before passing Bill 62. For the most part they claim they have no issue showing their faces for identification and medical purposes, but that the law’s insistence that they show their faces regularly is not only humiliating them and forcing them to act in violation of their faith, but has also exacerbated the harassment they’ve experienced due to their beliefs.

The law, it seems, has sent the message to the most bigoted repulsive members of Quebec society that harassing a woman for how she dresses is perfectly ok. All you have to do is claim religious neutrality and secularism.

The motion filed in Superior Court on behalf of the aforementioned groups comes despite claims by Premier Philippe Couillard that Bill 62 was written to ensure its compliance with the Canadian and Quebec Charters. Quebec Justice Minister Stéphanie Vallée is also on the defensive, claiming the law only applies where uncovering one’s face is needed for communication, identification, or security. She’s said she believes the law will survive a constitutional challenge, though her confidence about this seems forced.

Other leaders in Quebec, including former Montreal Mayor Denis Coderre, newly elected mayor Valérie Plante, and the Quebec Association of municipalities have all come out against the law with one exception.

In a rare show of solidarity, Parti Québecois leader Jean-François Lisée has come out in support of the law, though he wanted even stricter secularist legislation. In spite of this, he too foresaw the constitutional challenge and has stated that a PQ government would use the Notwithstanding Clause to keep it in place should the courts strike it down.

The Notwithstanding Clause Lisée is so fond of is not the perfect fail safe the PQ leader makes it out to be. It is not a way for the Quebec government to flip the judiciary the legal bird should the constitutional challenge not go their way.

Section 33 aka The Notwithstanding Clause of the Canadian Charter of Rights and Freedoms says:

“Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.”

Sections 7 to 15 of the Canadian Charter of Rights and Freedoms deal specifically with legal rights such as the rights of people charged with criminal conduct, as well as equality rights such as that of equal protection before the law and freedom from discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. The clause allows governments to keep legislation that violates these rights in place provided they expressly declare that the law will remain in effect notwithstanding the Canadian Charter of Rights and Freedoms…

…But there is a catch.

The Notwithstanding Clause also contains a rule stating that this declaration and the law it allows can only remain in effect for five years.

The delay was created so legislators could rework the law in question to make it conform to the Charter. The five-year delay is renewable, but even laws the most stubborn politicians take pride in are reworked after being struck down by the courts.

Bill 101 is a perfect example. The Supreme Court of Canada ruled it unconstitutional, so the Quebec Government invoked the Notwithstanding Clause. During that time, the law was tweaked so it conformed to the Canadian Charter of Rights, thus eliminating the need to renew the Notwithstanding Clause and preventing future legal challenges to it.

Lisée’s mention of the Notwithstanding Clause is an indirect admission that Bill 62 is unconstitutional and would not survive a legal challenge. Once the courts strike it down and all government appeals are exhausted, it is certainly within Couillard and any other elected provincial government’s power to use and renew Section 33, but the Canadian people’s embrace of their Charter rights would make it a highly unpopular move.

With the striking down of Bill 62 a certainty, the only question left is how much more hate Quebec governments want to push on us.

CultureLawQueer

Montreal Pride is upon us and with it the sights and sounds of people celebrating sexual diversity in an environment that is supposed to be safe and welcoming. Though in Canada we pride ourselves at our enlightenment on issues of sexuality and gender identity, we have still have a long way to go. Before we can move forward, we need to look at our past.

This article will look briefly at the history of LGBTQ struggles in Quebec and Canada, conduct a quick overview of current legislation, and do its best to present a picture of the status quo and what needs to be done to make our country safer and more inclusive.

During the British colonial period, homosexuality, known as “buggery” or “sodomy” was punishable by death. In 1861, the law was eased a bit and the penalty was changed to ten years to life in jail. Anti-gay laws almost always targeted men and the language of laws was kept intentionally vague in order to give huge discretion to law enforcement.

Starting in 1890, gays were generally charged with “gross indecency”, and between 1948 and 1961 changes to the Canadian Criminal Code were made, creating the categories of criminal “sexual psychopaths” and “dangerous sexual offenders”. Instead of persecuting rapists and pedophiles, the changes were disproportionately used to target gays. In addition, Canadian immigration law considered homosexuals an inadmissible class of immigrants.

The gay rights movement in Canada didn’t really gain momentum until the 1960s, when George Everett Klippert, a mechanic from the Northwest Territories, admitted that he was gay and had sex with men. In 1967 he was charged with “gross indecency” and sent to prison indefinitely as a “dangerous sexual offender”.

His conviction was sadly upheld by the Supreme Court of Canada.

While Klippert was rotting in jail, the British government opted to decriminalize certain homosexual acts. Taking a cue from our Mother Country, Pierre Elliot Trudeau, at the time Justice Minister for Prime Minister Lester Pearson, began pushing the omnibus bill, a bill that would amend the Criminal Code to decriminalize homosexual sex, legalize contraception, and increase access to abortion. When asked about it, Trudeau told the press:

“It’s bringing the laws of the land up to contemporary society I think. Take this thing on homosexuality. I think the view we take here is that there’s no place for the state in the bedrooms of the nation. I think that what’s done in private between adults doesn’t concern the Criminal Code. When it becomes public this is a different matter, or when it relates to minors this is a different matter.”

The bill passed in 1969, and two years later, Everett Klippert was released from prison.

In 1977 Quebec passed its Charter of Human Rights and Freedoms, a quasi-constitutional bit of legislation and the first of its kind to openly ban discrimination on the basis of sexual orientation. Applicable to both private and public parties, the law bans discrimination in access to public spaces, contracts or refusal to enter into them, housing, and employment on the basis of many grounds including sexual orientation. The Quebec Charter also grants equal recognition, and bans harassment, and the distribution of discriminatory notices, symbols, or signs.

In 1978 Canada’s immigration laws were modified so homosexuals are no longer inadmissible.

In 1992, the ban on gays in the military was lifted. A few years later, in 1999, the Supreme Court of Canada ruled that same sex couples are entitled to the same benefits and under the same obligations as opposite-sex couples for the social programs they contribute to.

In the summer of 2005, Paul Martin’s government successfully passed Bill C-38, the Law on Civil Marriage, allowing same sex couples the legal right to marry. Attempts by Conservatives to reopen the marriage debate have failed and continue to do so to this day.

Over the years the Canadian Criminal Code has evolved to include “sexual orientation and gender identity or expression” in its definition of hate crimes. The inclusion of gender identity or expression is a recent addition by Prime Minister Justin Trudeau.

Hate crimes include public incitement of hatred, advocating genocide, and willful promotion of hatred, which carry penalties ranging from six months to five years in prison. In addition, sentencing guidelines for the courts now include the obligation to consider aggravating circumstances that could add to a sentence, including evidence that the crime was motivated by bias, prejudice or hate based on factors that include sexual orientation or gender identity or expression.

As it stands, life for Canada’s LGBTQ people is far from perfect. Many members of the LGBTQ community are still denied access to proper health care in Quebec and people are still being fired for being gay or transgender. Though the election of the orange bigot and the rise in hate crimes south of the border has bolstered support for LGBTQ groups, it has also given hatemongers in Canada the confidence to be more open in their hate.

Some Montreal institutions have to deal with homophobia in their recent past. Several groups have been calling on the City of Montreal and the Montreal Police (SPVM) to apologize for violent raids on gay clubs and parties in the 70s, 80s and 90s and just this year Projet Montreal City Councillor Richard Ryan and his party joined them. The raid on Sex Garage in 1990 was what sparked the movement that would ultimately lead to Montreal Pride.

Quebec launched initiatives in 2013 to fight homophobia, however queer people are still glared at in public for simply being themselves. Unfortunately, the one law that would firmly entrench LGBTQ rights – our constitution – still does not include protections for them, and partisan politics and the Quebec notion of us vs them where the rest of Canada is concerned will keep these protections from ever happening.

Protections for LGBTQ people are there but they could be a whole lot better.

This Pride, let’s do what the haters hate most – be out and proud and open and fabulous, while still firmly pushing for those changes Canada so desperately needs.

LawMediaNews

Until the recent election of the Orange racist misogynist, the public seems to have had mixed feelings about the press. On the one hand, people use it as a means of achieving justice via social pressure and shaming when our legal system fails them. On the other hand you have people unreasonably targeted in the court of public opinion thanks to the press and social media, ruining their lives before the courts can decide their innocence, liability, or guilt. On top of that, news websites are covered with politically or corporate sponsored pieces masquerading as real news that claim to be offering sound advice and information when they’re really just pushing products or agendas no one needs.

It is in this new age of juggling fake vs. real news that we as a society need to take a serious look at what real journalism is, and the laws and ethics of those who practice it.

The simplified definition of journalism is the occupation of a diverse bunch of people who write, edit, and distribute electronic, print, and audio visual material on subjects of public interest. People think of journalists as strictly doing the news, but most news websites have everything from the news, to animal sob stories, to entertainment stuff, to insight on fashion and tech trends to ranty editorial pieces.

That said, though the press is universally recognized as playing an important role in any healthy democracy, there is little in Canadian law explicitly protecting its members. Journalists are widely considered to be the watchdogs of our democracy, calling bullshit and demanding justice before everyone else, but there’s no special law guaranteeing their rights.

Most of the rights of journalists come from the Canadian Charter of Rights and Freedoms. In Quebec, the Charter of Human Rights and Freedoms and the Civil Code, and in the rest of Canada, case law.

In the Canadian Charter of Rights and Freedoms, we have article 2(b) which guarantees freedom thought, belief, opinion and expression, including freedom of the press for everyone.

In the Quebec Charter, we have sections 3 and 9. Section 3 is a lot like 2(b) of the Canadian Charter in that it protects freedom of opinion and expression. Section 9 protects our right to the non-disclosure of our confidential information.

Last but not least in Quebec, we have civil law, written into our Civil Code and Code of Civil Procedure. The rule is that any evidence found to be obtained under circumstances that violate someone’s fundamental rights and freedoms can, to a certain discretionary degree, be rejected by the courts.

Journalists’ fight to protect their sources is one of the more frequent issues that come up before the courts, forcing our justice system to define the rights of the press outside of any definitive legislation.

In 2010 in Globe and Mail v. Canada (Attorney General), the Supreme Court was asked to come up with a way of deciding under what circumstances a journalist should be made to reveal their source.

Anonymous sources are extremely important for societal watchdogs as it allows them to get information from people in circumstances where their job, their reputation, or their lives would be jeopardized by publicly sharing the information themselves. On the other hand, you have the right of the authorities to know where important information is coming from in order to successfully resolve a criminal investigation, and the right of lawyers to have access to information and people in order to successfully defend their clients against criminal charges or lawsuits.

The Supreme Court in Globe and Mail used the Quebec Civil Code and the Canadian and Quebec Charters to come up with the following test as to whether a journalist should be made to reveal their source:

First, one must ask if the evidence resulting from making a journalist answer questions that could reveal their sources would be relevant to the case. If the answer is yes, the courts must consider the following four factors about the anonymous source:

  1. The relationship must originate in a confidence that the source’s identity will not be disclosed
  2. Anonymity must be essential to the relationship in which the communication arises
  3. The relationship must be one that should be sedulously fostered in the public interest
  4. The public interest served by protecting the identity of the informant must outweigh the public interest in getting at the truth

In addition to those rules and tests, you have the criminal code and the rules regarding civil liability.

Hate propaganda, public incitement of hatred, and promoting genocide are all criminal offenses in Canada.

If someone causes you damages such as those that could cost you your wealth or livelihood, damages that negatively affected your health, or damages that caused you psychological problems, you are allowed to seek reparations for those damages. People in Canada have successfully sued journalists and media companies for damages because their actions ruined their reputations and/or violated their right to privacy.

Outside the law, the press tends to regulate itself. Lobby groups like the Fédération professionnelle des journalistes du Québec put out codes of ethics for the profession that set out the rules they all should follow. This includes no plagiarizing, making sure to put out accurate information, and making clear distinctions between their personal opinions and the facts they present.

In an age where politicians feel free to accuse the press of undermining democracy, media literacy is more important than ever. We have a responsibility to keep our eyes open for the thinly veiled sponsored pieces and the ranty conjecture masquerading as fact.

Journalists who expose this to us are more important than ever and we need more rules to protect them. Politicians may not like reporters, but without them there’d be no democracy, and no one would know who they are. As Oscar Wilde once said:

“The only thing worse than being talked about, is not being talked about.”

Let’s keep the press free, so they can keep talking.

* Featured image by Pete O’Shea via Flickr Creative Commons

LawNews

On November 23, 2015 the Arts and Science Federation of Associations (ASFA) of Concordia University reached a settlement with a former executive who accused them of discrimination and harassment based on her ethnicity and gender. The executive is known under the pseudonym “Mei Ling” to undoubtedly discourage harassment from misogynist and racist trolls and supporters of her harassers.

She sought $30 000 in damages after discovering a Facebook conversation about her between two male executives that was left open on a shared computer. The conversation made sexist and racist comments about her, referring to her as a “chink slave,” “bitch” and “whore” and joking about having her impeached if she didn’t have sex with them. Her complaints also include being excluded from executive events, being denied an award before she’d even applied for it and being the only executive not to receive a bonus.

She, with the help of The Centre for Research-Action of Race Relations (CRARR), a civil rights advocacy group, filed a formal complaint with the Quebec Human Rights Commission and the Youth Rights Commission last March. Though a settlement – which includes an undisclosed sum, a public apology and a promise to set up a task force to address the issues arising from the case – was reached with the ASFA, Mei Ling told the press she has every intention of pursuing her harassers individually before the Quebec Human Rights Commission. An investigation is currently underway.

This article is not about the fact that Mei Ling’s harassers are clearly racist misogynist slime who have no place in any position of authority.

It is not about the fact that Concordia’s refusal to give her justice and address the issues of misogyny and racism directly make them an accomplice to the harassment she received, and that the settlement reached is clearly an acknowledgment of their guilt.

This is about the reach of the Quebec Human Rights Commission and the Human Rights Tribunal.

quebec charter of rights newspaper headline

The Quebec Human Rights Commission and the Human Rights Tribunal are the organizations charged with the enforcement of the Quebec Charter of Human Rights and Freedoms. This law was enacted in the 1970s and prohibits, among other things, discrimination based on “race, colour, sex, pregnancy, sexual orientation, civil status, age except as provided by law, religion, political convictions, language, ethnic or national origin, social condition, a handicap or the use of any means to palliate a handicap.”

Though the Quebec Charter isn’t part of the Canadian Constitution and therefore can technically be changed by a simple act by the Quebec legislature, it is considered a fundamental “public order” law with quasi constitutional status. This means that it can’t be trumped by other laws or contracts unless said laws provide even more rights and freedoms than the Quebec Charter and even contains a rule stating that all other laws can’t violate articles 1 to 38 (regarding fundamental rights, freedoms including judicial and political rights and freedom from discrimination) unless the other laws specifically say that they apply in spite of the Charter.

quebec commission logoUnlike the Canadian Charter of Rights and Freedoms which applies only to the government and anyone acting on its behalf, the Quebec Charter applies to all violations of rights and freedoms, including those that occur between private parties. That means that even if your harasser is a private business or some jerk on the street, he could still find himself before the Human Rights Tribunal while the Human Rights Commission demands an explanation and compensation on your behalf.

It works like this: your rights are violated, so you go to the Human Rights Commission and file a complaint. The Commission then conducts an independent investigation. If the Commission decides there are legal grounds and evidence justifying the complaint, it then decides the best course of action which could be the negotiation of a settlement between you and the violator, submitting the dispute to arbitration, or referring the issue to the Human Rights Tribunal.

If the Commission goes to the Tribunal, it can seek “any appropriate measure against the person or to demand, in favour of the victim, any measure it considers appropriate at that time.” (section 80 of the Quebec Charter). This could not only include compensation for material damages but also any grief (known as moral damages) you experienced as a result, and even punitive damages if the violation of your rights was clearly intentional.

Take the case of Richard Zilberg. He’s a Jewish hairstylist who worked for a spa in Montreal. In 2012 he filed a complaint with the Human Rights Commission when his boss Iris Gressy told him he’d no longer be scheduled on Saturdays, his busiest workday, simply because he’s Jewish and shouldn’t work on the Sabbath.

Zilberg, like many Jews, does not keep the Sabbath and rightly felt that his level of observance was his decision alone. The Human Rights Commission agreed and asked that the spa pay him $17 500 in damages: $12 500 for loss of income and $5000 for moral damages. In addition, the Commission recommended that Gressy pay Zilberg an additional $2500 out of her own pocket for her intentional violation of his civil rights. Gressy has since refused to pay and is planning to go to the Tribunal.

Then there’s the case of Lettia McNickle, a black waitress working at Madisons New York Grill & Bar in Montreal who was given less work due to her natural braids. She claims racial discrimination. Though the chain’s head office has since issued an apology, the restaurant, which had initially agreed to mediation, has since withdrawn. With the support of CRARR, McNickle too filed a complaint with the Human Rights Commission and an investigation is scheduled.

To many, the Quebec Charter may seem like excessive policing of individual behaviour, but it and the bodies made to enforce it have their place in a society where suing someone on your own is so expensive. It’s an additional protection from harassment and discrimination and gives recourse to people who would otherwise have none.