Graeme Hamilton: PQ resorts to improbable nightmare scenarios in bid to justify shaky values charter
MONTREAL — As the first week of hearings into the Parti Québécois’ charter of values concluded Thursday, Yves Gauthier claimed the prize for the most peculiar defence of the proposed ban on conspicuous religious symbols.
Asked by Democratic Institutions Minister Bernard Drainville about the requirement public-sector workers not wear such face-covering garments as the niqab or burka, Mr. Gauthier’s thoughts turned to his doctor’s office.
The retiree noted there are a lot of women in the medical profession these days.
“Even if we are open and all that, it is not always clear, because having your prostate checked by a digital rectal exam is a little disorienting, at least the first time,” he said.
“I could not see myself, on top of that, dealing with a veiled doctor, with a burka or chador … So yes, especially as a matter of principle, I totally agree that services should be given with the face uncovered.”
Mr. Gauthier acknowledged his nightmare scenario was improbable, since a woman who feels obliged to cover herself in front of strangers is unlikely to be prodding his privates. But in a way his fears were representative of charter justifications heard over the first three days of hearings at the National Assembly in Quebec City.
Supporters, including Mr. Drainville, the government’s charter point man, frequently resort to their imaginations to explain why religious symbols pose a threat.
Thursday, Mr. Drainville let his imagination run while questioning another presenter, Gerald Cutting, president of the Townshippers’ Association, which represents anglophones in the Eastern Townships.
Mr. Cutting had presented a brief denouncing the charter as discriminatory, saying it has provided a platform for bigots to attack minorities.
Mr. Drainville replied people have gone overboard on both sides of the debate before presenting Mr. Cutting with a hypothetical situation: A young Muslim homosexual who has been rejected by his family because of his sexual orientation seeks medical care and is greeted by a nurse wearing a hijab.
“The young man can feel rejected because of the religious symbol worn by the person providing health service in this case,” Mr. Drainville said.
“Can you understand that the religious symbol can sometimes be a message of rejection for those who see it?”
‘Can you understand that the religious symbol can sometimes be a message of rejection for those who see it?’
It was the second day in a row he had invoked the scenario, and it reveals a fundamental flaw in the government initiative, a failure the Barreau du Québec underlined in a brief made public Thursday.
For a government to pass legislation that will infringe individual rights, it needs convincing evidence the law addresses an urgent need, the professional body representing Quebec’s 25,000 lawyers said. Anecdotes and made-up situations do not cut it.
“Decisions motivated by what the [Canadian] Supreme Court has called pure speculation cannot justify the infringement of constitutional rights,” it said.
Bill 60, the legislation enacting the charter, does not seem to be supported “by any convincing evidence.”
Mr. Drainville tried to dismiss the group’s opinion as a defence of the status quo, saying simply the government and the Barreau do not have the same reading of the situation.
But the brief, to be formally presented next month, represents a serious blow to the charter, reinforcing the opinion of Quebec’s Human Rights Commission that the ban on religious symbols in the public service would not withstand a constitutional challenge.
The brief analyzes Bill 60 article by article and concludes its legal foundation is shaky. The ban on religious symbols and restrictions imposed on accommodating religious minorities “would be hard to reconcile with certain fundamental freedoms protected by the Quebec charter [of rights] and the Canadian charter [of rights],” it concludes.
Paul Bégin, a former PQ justice minister, has said the best way to protect the Quebec charter from a court challenge would be to invoke the notwithstanding clause, which allows a government to override protections in the Canadian Charter of Rights & Freedoms. The opposition Liberals, meanwhile, repeated their call for the government to release internal legal opinions on Bill 60.
Mr. Drainville insisted Thursday there is no need to resort to the notwithstanding clause. But he will need to come up with something other than fictional scenarios to convince people his charter is so urgently needed.
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