The Parti Québécois has vowed for the first time to use the notwithstanding clause to protect its secular charter from legal challenges, hoping to attract francophone voters in the final days of the campaign with a reinvigorated plan to restrict the visibility of religious symbols in the province.
With the April 7 election quickly approaching, PQ Leader Pauline Marois said she would invoke the constitutional protection for the secular charter, which includes a ban on public servants wearing overt religious symbols such as the hijab, the kippa and the crucifix. Until now, Ms. Marois and her ministers had always said they were confident that their proposal respected the Canadian Charter of Rights and Freedoms.
The new strategy focused attention on the divisive issue, with the struggling PQ campaign hoping to solidify its support among Quebec voters who are seeking further protection for their province’s cultural identity.
The threat to use the notwithstanding clause stands to create friction with the rest of Canada, where the secular charter has been met with sharp criticism over the widespread perception that it runs afoul of constitutional rights. But Ms. Marois said the measure to override the Charter of Rights and Freedoms in this case is necessary to reassure Quebeckers that the secular charter will be enforced.
“We would integrate the notwithstanding clause in the charter before it can be invalidated by the courts,” Ms. Marois told reporters on Monday.
After the 1982 Constitution Act first came into force, the PQ routinely invoked the notwithstanding clause in all its legislation, insulating it from Charter tests.
In 1989, Quebec, under the Liberals, invoked the clause after a Supreme Court decision that struck down the unilingual French commercial sign law in the province’s language law known as Bill 101.
However, Ms. Marois has argued in recent months that the secular charter did not need such protection, pointing to unpublished advice from her government’s lawyers and public comments from a handful of legal experts.
The federal government has vowed to study the proposed secular charter if it becomes law, and to fight it in court if its lawyers find that it “violates the fundamental constitutional guarantees to freedom of religion,” as Multiculturalism Minister Jason Kenney said last year.
Ottawa refused to comment on the matter on Monday, having promised to stay out of the provincial election.
However, Quebec Liberal Leader Philippe Couillard accused the PQ of promoting the charter in the hopes of creating a political crisis with Ottawa to fuel the sovereigntist movement.
Mr. Couillard cited a newspaper article in La Presse on Monday reporting that the PQ had a strategy to adopt the controversial charter, see it contested and defeated before the Supreme Court, then use the setback to provoke a referendum.
Mr. Couillard called the strategy “Machiavellian,” “repugnant” and “unscrupulous.”
“I have never seen anything as despicable as this, politically,” he said while campaigning in Quebec City.
Still, invoking the notwithstanding clause would force the Quebec government to spell out why it needs the measure, under the rules of the Charter of Rights and Freedoms.
“They are going to have to expressly say that they are overriding freedom of expression, freedom of religion and equality rights,” said Kathleen Mahoney, a professor of law at the University of Calgary and a constitutional and human-rights expert. “It acts, in a way, to force the provincial government to admit exactly what they are doing, so they can no longer deny that religious rights are not being violated.”
Prof. Mahoney added the move would irk the rest of Canada, where “people love their Charter,” and stand to embarrass Quebec on the international stage.
The PQ denied that it orchestrated the controversy over the secular charter to have it defeated before the courts and help boost support for sovereignty.
“We never devised any scenario of this nature,” Ms. Marois said.
Public opinion polls have indicated that a majority of francophone Quebeckers support the secular charter, but also that the PQ’s support in that constituency has been falling.
With a report from Ingrid Peritz in MontrealReport Typo/Error