Next Monday's Quebec election will hopefully shed some light on where Quebeckers are in terms of their relationship both with Canada and within their community. The polls show that the Parti Quebecois has lost part of its popular support over the last few weeks but polls are not always indicative of what people do on election day, particularly when the voters say that they intend to vote for a third party alternative like the CAQ or the Quebec Solidaire. Moreover, as the National Post reported, "seven per cent of eligible voters remain undecided, and almost (28 per cent) of respondents said their vote could change, depending on what happens during the final stretch of the campaign."
One of the contentious issues in the Quebec election is the Quebec Charter. I have written about this Charter before but a quick background is necessary in order to explain what Pauline Marois, Leader of the PQ, meant when she said she would invoke the "notwithstanding clause" if the Quebec Charter is challenged in the Supreme Court.
The PQ believes in a secular state. During the Quiet Revolution of the 1960s the Quebec state shifted its allegiance away from the Catholic Church toward the French language as the basis for their state or provincial identity. In my earlier column I pointed out that, "as a result secularization this has led to all sorts of policy decisions that have attempted to exclude religion from civic life." This shift from religion to language is also why we saw the emergence of the terms Quebecois / Quebecoise instead of the name French Canadian used among Quebeckers. A state requires three things: population, territory and sovereignty. Quebec has a population and, by changing their name to Quebecois, they imply a claim to the Quebec territory. The third part of the equation is the desire for full sovereignty, i.e. Quebec wants to be its own state. The Parti Quebecois is a soverigntist party, but has failed on two occasions to make sovereignty a reality. More recently, it has shifted its focus toward secularizing Quebec state institutions. Thus the Quebec Charter emerged as a way to prohibit expressions of faith in public institutions.
The Quebec Charter has been under discussion for some time now and has been criticized as denying religious freedom and promoting xenophobia. It denies individuals the right to wear clothing that is connected to any kind of religious expression. In 2013, the CBC reported a Quebec official as saying, "If the state is neutral, those working for the state should be equally neutral in their image."
Curiously the Quebec Charter pits itself against Canadian Charter of Rights and Freedoms which explicitly allows for religious freedom within the confines of a free and democratic society. So why is Marois threatening to use a section of the Canadian Charter to protect the Quebec Charter?
Well, I have written about this before but I thought it prudent to remind you how the notwithstanding clause can be used. Section 33 reads: "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." The notwithstanding clause allows a legislature to keep a law "notwithstanding" that the Court has said that the law both violates a fundamental freedom (section 2) or legal rights (section 7-14) or equality rights (section 15) and that the law is not reasonable in a free and democratic society. In other words, the law also violates Section 1 of the Charter.
This clause was put into the document to ensure parliamentary supremacy. In plain words, as I said in a column in 2012, "this means that the parliament of Canada or any province can say that even though a law violates the Charter it still represents the particular values and political culture of its community. [As a result of the notwithstanding clause,] the Federal government or any provincial government has the right to say that the violation is acceptable in order to uphold a cultural or moral value that is widely accepted."
Marois continues to suggest that this Charter expresses values widely held in Quebec. It will be interesting to see if this election turns that assumption on its head.
