The government of Quebec should think better of its proposed Charter of Values, in light of the unfavourable opinion of its own lawyers in the Department of Justice, reported by La Presse on Friday.
Bertrand St-Arnaud, the provincial Minister of Justice, has had little to say about the values charter, though he said his department had been "associated" with the preparation of the "orientation document" – no draft bill has yet been offered – and professed to be "very confident with respect to the document tabled by my colleague Bernard Drainville."
As for Mr. Drainville, he has the odd title of Minister Responsible for Democratic Institutions and Citizen Participation. (Are the other cabinet ministers, then, in charge of tyrannical or oligarchic institutions?) The Premier, Pauline Marois, seems to have deliberately carved off this chunk of what would normally be in Mr. St-Arnaud's portfolio, and assigned it to Mr. Drainville.
Appearances suggest that the Quebec government is avoiding the Justice Department and the expertise of its legal staff. The values charter is likely to collide not only with the Canadian Charter of Rights and Freedoms, but also with Quebec's own Charter of Human Rights and Freedoms.
Mr. Drainville's own department, faced with an opinion from the Justice Department that La Presse describes as "ironclad," consulted a well-known academic lawyer, Henri Brun of Laval University, who is said to have cautiously opined that the values charter would have a better probability of passing muster if the restrictions on clothing and accessories were limited to authority figures such as judges, prosecutors and jail guards – as per the Bouchard-Taylor commission report of 2008. It hardly sounds like a ringing endorsement.
The Marois government is being shortsighted. Jason Kenney, the federal Minister of Multiculturalism, has said that if the values charter is enacted, the federal Department of Justice will in its turn be consulted, and the federal government may see fit to act to defend freedom of religion. Perhaps there would be a reference question to the Supreme Court of Canada.
Ms. Marois and her colleagues may be thinking about invoking the notwithstanding clause of the Constitution. If so, they will only heighten the outrage.