Did the PQ mislead Quebecers about the legality of its values charter?

Though dead in the water, along with the defeat of its authors, the PQ's proposed charter of values is again at the centre of controversy here.

At issue this time, the question of whether the bill ever had a legal leg to stand on.

Actually it is almost more than that: it is about whether governments have the right to be so selective in the information they seek and release in support of a political course of action as to be ultimately misleading.

Unfortunately, this practice may in fact be rather common. But in this case, the question is whether Quebecers were almost duped into investing in a political agenda that was not only incredibly harmful to social harmony, but may have also been unconstitutional, as so many of its critics charged and as the PQ government, we now learn, may have been willing to risk it being all along.

• Former PQ minister says justice ministry was "consulted" on charter

The charter's proposed ban on religious attire in the public service — the most contentious of its reforms designed to safeguard the secular nature of Quebec society — was widely assailed as an assault on minority rights that would never pass a court of law.

Many prominent groups, the Quebec Bar Association among them, challenged the legality of the proposals.

But throughout it all, the former PQ government maintained repeatedly that it had legal opinions, implying — but never specifying — that some came from its own ministry of justice by refusing repeated opposition requests to release them.

It was a stance that gave the government not just political but official cover for its controversial bill.

Now, however, it appears it didn't have a full legal opinion from its own ministry after all, but merely answers to a handful of selective questions, a tactic that speaks volumes about the gulf between political needs and transparent government.

In search of legal opinions

This recent controversy began last week when Quebec's new Liberal justice minister, Stéphanie Vallée, set out to honour her leader's rather unorthodox electoral promise to release the legal opinions the PQ had collected on the charter, something the Liberals had been hammering away at while in opposition.

Vallée made public a finely honed letter from the department's deputy minister stating that no such opinions existed.

The deputy minister's letter observed that it is "usual" to request that the ministry draft a legal opinion on bills of this nature, and concluded (my translation) that:

"Ministry lawyers are consulted on numerous questions daily, for example, on the equality of men and women, freedom of religion, and the use of the notwithstanding clause, which is what happened in this file.

"However, as previously mentioned, the ministry did not issue a formal legal opinion on the constitutionality and legality of bill writ large."

In the Quebec media, the first and lasting impression was that the PQ had been lying to the public for months.

In the debate that raged over the charter through the fall and winter, both Bernard Drainville, the former minister in charge of the file, and Pauline Marois, the former premier, had referred to legal opinions in support of the project.  

Suddenly, it looked like they'd never existed.

What's a legal opinion?

Agnes Maltais, the PQ member now in charge of the file, quickly tried to recoup, issuing a communiqué quoting extensively from two eminent jurists who backed the bill's legality during the parliamentary commission.

She charged the Liberals were trying to muddy the waters by parsing the issue of what constitutes a legal opinion.

In the back and forth, the fiercest words were reserved for Drainville, who was even called on to resign.

Uncharacteristically, Drainville kept quiet throughout most of this. Word was, he no longer wanted to be associated with the charter.

But then Le Devoir came out with a follow-up story that suggested the Liberals were the ones playing loose with the legal opinions, and Drainville went on the offensive yesterday to try to clear his name.

The Le Devoir news was that the ministry of justice had located its legal opinions on the charter — none on the whole of the bill as previously stated — but several smaller ones on key aspects such as the equality of men and women, freedom of religion, and the use of the notwithstanding clause to get around the guarantees in the Charter of Rights.

In other words, the very same concerns listed in the letter issued by Vallée.

The Liberals, however, have so far refused to release these documents, saying that they only committed to making public opinions on the whole of the charter, not its bits and pieces.

Plausible deniability

From the beginning, the charter has been confounding. Look no further than its many names or the tangle of its 26-word official title; or even at its roll-out that saw it initially leaked to the press, then presented as a proposal, and finally tabled as a bill, each instance fanning the flames of an incendiary debate.

As the deputy minister's letter indicates, a bill of this nature would usually be the object of an official legal opinion by the ministry. So why not ask for one?

Perhaps the government of the day thought it expedient not to know the answer, in case it wasn't what its political strategists wanted; or in the event the conclusion leaked out and undermined its case.

Perhaps because it was trying to bait the feds into a legal skirmish or war of words over the proposed values charter, as many observers claimed.

For a government not to have asked its own ministry for an evaluation of the legality of such a contentious bit of legislation is of course a strategy itself — plausible denial — to give it the wiggle room it needs to continue to wrangle and politic.

The question is what does any of this have to do with what we expect from politicians.