Premier Francois Legault invoked Quebecers' values, language and distinctiveness Tuesday to justify shielding from court challenge upcoming legislation that will restrict the wearing of religious symbols .
Legault said the notwithstanding clause — Section 33 of the Canadian Charter of Rights and Freedoms — has been used "dozens of times by many Quebec premiers" with the purpose of protecting collective rights against individual freedoms.
It is "important," he said, to use Section 33 "when we are talking about protecting our values, our language, protecting what makes us different here in Quebec."
Civil rights groups have made clear their desire to challenge the government's upcoming secularism legislation, which would prohibit workers in positions of authority — including teachers, judges, police officers and prison guards — from wearing conspicuous religious symbols.
Opponents have argued any attempt to ban people from wearing religious items at work violates the freedoms of religion and of conscience and the right to equality contained in the federal and provincial rights charters.
The notwithstanding clause allows federal, provincial and territorial governments to override rights for a renewable period of five years. Montreal La Presse reported last week legislation expected Thursday will invoke the clause pre-emptively, blocking any attempt to challenge the law on charter grounds.
La Presse said the bill will also invoke overriding language in the Quebec Charter of Human Rights and Freedoms.
Legault stopped short of confirming that Section 33 would be used pre-emptively, but he didn't deny it. "In both charters, the notwithstanding clause is in the law and included in the charters and allows governments to use them when there is conflict between collective and individual rights," he said when questioned by reporters in Quebec City.
McGill University law professor Robert Leckey said the Supreme Court of Canada has held that Section 33 can be used pre-emptively. As a protest against the ratification of the 1982 Constitution without Quebec's signature, the Parti Quebecois government invoked Section 33 in every piece of legislation it tabled between 1982 and 1985.
"The reasons Quebec was using (Section 33) pre-emptively in the early 1980s were so different than now," Leckey said in an interview. "They were doing it because they were protesting the charter. Doing it now is simply saying, 'We want to deny their day in court to the minority religious people whose rights this law would limit.' "
The government has said it wants to put to rest the debate over secularism, and use of the notwithstanding clause would prevent its law from getting tied up in the courts for years.
Leckey said a more credible reading is that "the government acknowledges it does not have a valid purpose ... that would justify the limit on rights that it's about to move ahead with."
A spokesman for the bill's sponsor, Immigration, Diversity and Inclusiveness Minister Simon Jolin-Barrette, would not confirm any details of the legislation.
Meanwhile, opposition to the Quebec government's secularism bill is increasing. A major teachers' federation filed a lawsuit Tuesday against the government's attempts to count the number of teachers who wear religious symbols. La Federation autonome de l'enseignement wants the Superior Court to declare unconstitutional any steps by the government to force schools to provide information on the religious symbols worn by employees.
Additionally, Philippe-Andre Tessier, the head of the provincial human rights commission, told Montreal La Presse Tuesday he opposes the pre-emptive use of Section 33 to block legal challenges of the bill. His spokesperson said he wasn't available for further interviews.
Legault said Tessier's comments were not surprising. "We realized, we expected that certain people, certain jurists, would not be happy about the use of the notwithstanding clause," he said.
The premier and Jolin-Barrette promised during the last election campaign to quickly adopt the legislation. Legault has often stated that a majority of Quebecers support his push to ban public sector workers who occupy positions of authority from wearing religious symbols.
But Leckey said the bill won't end Quebecers' anxieties with the cultural and religious differences of immigrants. There is no evidence, he said, that a single teacher, police officer, judge or Crown prosecutor has been proselytizing or trying to impose their religion on people in the province, he said.
— With files from Caroline Plante
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