Notwithstanding clause would be used to pass secular charter

Parti Québécois Leader Pauline Marois says if her party's secular charter were to be contested by the Supreme Court, she would invoke the notwithstanding clause to prevent the legislation from being struck down.

Pauline Marois would override sections of Canada's Charter of Rights if Supreme Court contests charter

PQ leader Pauline Marois makes a point during a news conference in Trois-Rivières, Que. (Paul Chiasson/Canadian Press)

Parti Québécois Leader Pauline Marois has confirmed her government would use the notwithstanding clause to push through its controversial secular charter if the Supreme Court contests it.

What's the notwithstanding clause?

The notwithstanding clause (also called the override clause) is laid out in Section 33 of Canada's Charter of Rights and Freedoms.

It allows the federal government or a provincial legislature to enact legislation to override several sections of the charter that deal with fundamental freedoms, legal rights and equality rights. 

These include freedom of expression, freedom of assembly, and freedom from unreasonable search and seizure. A number of other charter rights cannot be overridden, including democratic rights, mobility rights, and the equality of men and women.

"I don't want this charter to just be a document that will end up in the trash if it is contested," Marois said at a campaign stop in Trois-Rivières, Que.

"In order to avoid that, we will look into this question, and if necessary we will proceed with the notwithstanding clause."

The clause allows a government to exempt a law from being struck down on certain charter grounds for a renewable five-year period. 

The notwithstanding clause was inserted into the 1982 Constitution to allow governments to override the Canadian charter.

The most famous use of the notwithstanding clause was in 1988, when then premier Robert Bourassa used it to override a Canadian Supreme Court ruling against parts of Bill 101, now known as the Charter of the French Language.

Philippe Couillard says PQ wants fight

Marois's comments came after her Liberal opponent, Philippe Couillard, accused her party of using "Machiavellian" techniques to win the election and lead Quebecers to a referendum.

Philippe Couillard says the PQ government's policies have created an atmosphere where xenophobia can flourish. (CBC)

He said the PQ wants its charter to be contested by Canada's top court, so that it can use the ruling as leverage for a referendum on Quebec's independence. 

“Clearly, the goal [of the secular charter] was not to come to an agreement, the goal was to have a big fight, to divide Quebecers against each other in order to fuel a referendum,” Couillard said in Quebec City.

He said Marois's party was purposely manipulating Quebecers. 

“I’m 57 years old, and I’ve never seen something so cynical in the Quebec political landscape before.”

But Marois denied claims that her party was deliberately using the charter to divide Quebecers and prompt a sovereignty debate.

"Honestly, we never, never planned for a scenario like that," she said on Monday. 

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