The Marois government wants to add the principle of secularism into Quebec's own charter of human rights and freedoms, hoping to shield its plan to impose religious neutrality across the civil service from a future legal challenge, a government official has told The Globe and Mail.
The Parti Québécois plan to ban religious symbols among government workers will be unveiled Tuesday morning by the lead minister on the file, Bernard Drainville. The proposed Charter of Values would add the principles of religious neutrality and secularism into the Quebec Charter of Human Rights and Freedoms, which was adopted in 1975, or seven years before the Canadian Charter of Rights and Freedoms.
The move would affect the way that courts interpret the clause dealing with freedom of religion in the Quebec Charter of Human Rights, and could help the government to defend its Charter of Values in the event of a legal challenge, the source said.
There have been few federal-provincial battles in the Marois government's first year in office, but there is a sense that the PQ could benefit politically if the Supreme Court were to eventually undermine the Charter of Values.
Mr. Drainville said before the last election that a PQ government would benefit from its fights with Ottawa, either by gaining new powers or by showcasing Quebec's inability to thrive inside the Canadian framework.
The minority PQ government has stated that it does not plan to invoke the Constitution's notwithstanding clause, which would shield the proposal from legal challenges based on the Canadian Charter.
"We feel that our project is constitutional," the Quebec government official said.
Still, the political and legal debate over the Charter of Values is only starting. Experts said it will likely end up in front of the highest court in the country, which will have to weigh matters such as jurisprudence and both the Quebec and Canadian charters of rights.
"We have to expect judicial challenges and it will likely end up in front of the Supreme Court," University of Ottawa law professor Benoît Pelletier said in an interview. "But the Supreme Court has never been confronted with the situation that stands to flow from the Charter of Values, so we can't know what it would decide."
Constitutional experts said the courts will have to weigh the new Charter of Values in its entirety. The PQ plans to allow government workers to "discreetly" wear earrings or pendants with religious symbols, while banning hijabs, kippas and turbans.
There will be a renewable exemption clause that will allow hospitals, postsecondary institutions and municipalities to opt out of the ban on religious symbols for five years. There will be no exception, however, for daycare workers who operate in subsidized facilities or teachers in primary and secondary schools.
Jean-François Gaudreault-DesBiens, a professor of law and constitutional expert at the University of Montreal, said he doesn't see how the courts could allow for such discrimination against government employees.
"If there is an exemption for hospitals and universities, good for them, but that doesn't do anything for a daycare worker who wears a veil," he said in an interview. "In my view, under both the Quebec and Canadian charters of rights, it is clear that there is no link between one's ability to do a job in a competent manner and wearing a veil."
Prof. Gaudreault-DesBiens said it would be easier – as argued by many others in Quebec – to impose a ban on religious symbols only in the case of government officials in a position of authority, such as police officers and judges.
It's unclear how the courts would react to the inclusion of the principle of secularism in the Quebec Charter of Human Rights. The Canadian Charter of Rights includes a call to preserve "the multicultural heritage of Canadians."
"The fundamental question will remain whether a government worker can wear religious symbols," Prof. Pelletier said.
The PQ has never accepted what it calls the unilateral inclusion of the Canadian Charter of Rights in the Constitution, and it could argue that a matter such as the Charter of Values should not be subservient to a federal document. In that context, the modification of the Quebec Charter of Human Rights, to include secularism as a guiding principle, means that the Charter of Values could be found to adhere to the Quebec charter of rights, while still failing to abide by the Canadian one.
The Quebec Liberal Party has rejected the PQ's proposal, but the third-place Coalition Avenir Québec is open to restrictions on religious symbols among provincial employees such as law enforcement officials. Being in a minority situation, the PQ will need the support of the CAQ to adopt the Charter of Values.
The federal Conservative government is waiting for the official release of the charter to comment on its content, all the while vowing to fight to protect the fundamental rights of Canadians.
Liberal Leader Justin Trudeau will comment on the PQ's proposal Tuesday afternoon in Montreal, at the party's headquarters for the coming by-election in the riding of Bourassa. He has said he trusts that the people affected by the charter will take the matter into their own hands, and that Ottawa will not need to bring the Quebec government to court.
"I don't think a different level of government needs to be involved in this," Mr. Trudeau told CTV's Question Period on Sunday. "It will be Canadians."
After releasing the broad outlines of its proposal on Tuesday, the PQ will conduct an informal round of consultation before tabling the formal legislation in the National Assembly in the fall.