Constitutional lawyer: PQ Charter an empty fantasy

The law on religious wear wouldn’t survive a court challenge


MONTREAL – A prominent constitutional lawyer says a plan by the Parti Quebecois to restrict certain religious symbols in public institutions would ultimately be shredded up in court.

He used the example of doctors with religious headwear and said that if they one day challenge the PQ proposal, they will win.

The PQ has proposed a Charter of Secularism that would forbid employees in public institutions from wearing overt religious symbols; the policy would not apply to necklaces, like the crucifix.

“Imagine the absurdity of saying that we have the best surgeon in Quebec, but he can’t operate in Quebec because he’s not permitted to wear his kippah, turban or scarf,” Grey said in an interview Thursday.

“I think a doctor would succeed — I think there’s no reason for a doctor not to wear a turban, kippah or scarf.”

Grey cited jurisprudence that could be used to knock down the PQ proposal, including the famous case of turbans in the RCMP.

He said any Quebec public servant who would launch a legal challenge would also be successful.

“I don’t see why a civil servant who works in a department should be deprived of his rights,” he said in an interview from Victoria. “It’s very likely that in the vast majority of cases there would be accommodation ordered by the courts.”

He said a future PQ government would then have only one tool left in its legal arsenal — the notwithstanding clause, which allows legislation to temporarily override parts of the Constitution.

But Grey says that move would be a political hornet’s nest.

“The notwithstanding clause cannot be applied without causing years of contestation,” he said. When a government uses the clause to protect legislation, it expires after five years. That would force a future government to go through the process of re-introducing the controversial law.

The Quebec constitutional expert said the notwithstanding clause is there for extreme situations and emergencies — not for a doctor in a yarmulke.

The PQ is leading in the public-opinion polls with a provincial election less than three weeks away. Leader Pauline Marois revealed Thursday that she has had a transition team in place for several weeks.

Also Thursday, Premier Jean Charest warned that the apparent split in the non-separatist vote risks allowing the PQ to waltz up the middle.

Charest said that if people want to avoid another referendum, and the economic uncertainty that comes with the sovereignty debate, they need to rally behind one party and support his Liberals.

The latest polls suggested the Liberals and Coalition party (CAQ) were fighting for second place, pointing to an easy PQ win despite its relatively weak overall support in the low 30s.

“We’re telling people who are making a choice on Sept. 4 that if they vote for the CAQ they’ll wake up the next morning with a very nasty surprise. They risk encouraging Ms. Marois and getting stuck with a referendum,” Charest said.

“In this campaign, supporting the CAQ is supporting Pauline Marois. Voting CAQ means getting the PQ.”

With an eye on the Quebec election, Grey said the opinion of the majority should not be used to determine the rights of minorities.

Grey added that there might be some cases where wearing religious symbols could be forbidden, like for judges or Crown prosecutors.

A court might find it “reasonable and proper” to legislate clothing for judges and other people whose neutrality is central to their job, Grey said.

The Montreal lawyer has in the past successfully argued landmark constitutional cases against Quebec’s language law, and against a school’s decision to forbid a Sikh boy from wearing the kirpan dagger.

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