Quebec Charter of Human Rights and Freedoms - Enforceability

Enforceability

An illicit violation of the charter, whether by a private party or by the provincial Crown, 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.