The Canadian Civil Liberties Association (CCLA) has severe concerns about the constitutional validity of Bill 78, which was passed by the Quebec National Assembly on May 18, 2012. The CCLA agrees that access to education and ensuring that instruction in schools, CEGEPs and universities is open and available for those who want to attend are pressing and substantial societal interests. Our concerns are not directed at this goal, but rather the means that the Quebec government has chosen to pursue it. Bill 78 drastically limits freedom of expression, association and peaceful assembly rights in Quebec. It puts in place a number of prohibitions that are at best tenuously linked with the goal of ensuring access to postsecondary education. Even those provisions that do directly address access to educational institutions are frequently overly broad, vague and discretionary.
The Bill, for example, imposes very broad prior notification requirements that would apply to all demonstrations, regardless of their connection to student protests or proximity to educational institutions. Bill 78 requires organizers of any demonstration involving 50 or more people to provide an eight-hour written notice to the police specifying the time, duration, venue and route of the demonstration. These obligations would even be imposed on gatherings taking place on private property, so long as the location is “publicly accessible.” The police will have the power to unilaterally decide the proposed route or venue poses a serious risk for public security, and require the organizers to submit a new plan.
These prior notification requirements are broad, vague and in most applications will have no rational connection to ensuring access to postsecondary institutions. There is no definition of a “demonstration,” leaving significant leeway to police and government officials to determine when the prior notification scheme will or will not apply. Any individual organizer who fails to provide notification to the police or does not “employ appropriate means” to make sure the demonstration follows the approved plan may be fined between $7000 and $35,000 per day; if it is a group that has organized the demonstration, the fine can be between $25,000 and $125,000. The onerous notice requirement, the lack of clarity in the obligations of the organizers, as well as the recourse to penal sanctions will fetter the fundamental freedom of all those within Quebec to organize peaceful assemblies.
The fines in the Bill are not limited to those that directly plan or take part in demonstrations or gatherings. Anyone who simply incites or helps another person to commit an offence can be fined as if they themselves had committed the offences. Incitement is not defined, leaving open the possibility that simply encouraging others to peacefully assemble – in person, at a meeting, over social networks or in private conversation – may result in thousands of dollars of fines.
The law also prohibits any gathering within 50 metres of the grounds of a building where university or college instruction is delivered, if that gathering could result in students or employees being unable to access the building. Targeting gatherings that could result in impeded access is a very vague and fluid standard, and there is no indication as to what type of “gathering” the government believes will pose this risk. Will student associations now have to hold general assemblies off campus? Will small groups of students no longer be able to hand out pamphlets outside university buildings for fear that the situation could attract a larger crowd or escalate? What about conferences where controversial figures are invited to speak? Even when an organizer or participant is sure they must stay away from university or college property, this will in many cases impose a severe restriction on freedom of peaceful assembly and expression. In many areas, college and university buildings are completely integrated into the city, making it very difficult to know with certainty where one can and cannot demonstrate. In downtown core areas or small towns with dense concentrations of colleges and universities it may be all but impossible to find a suitable meeting place or demonstration route that avoids an area 50 metres around the property limits.
Despite the vagueness and breadth of this prohibition, the Bill could be interpreted as subjecting individuals participate in such gatherings to fines between $1000 and $5000 per day. If a person organized a demonstration that violated these provisions, that person would be liable for between $7000 and $35000 per day. The possibility that those simply participating in peaceful assemblies could unknowingly violate these provisions, and be liable to thousands of dollars, is an unacceptable and unjustifiable limit on basic democratic rights.
Bill 78 also limits the ability of associations of college and university employees to act collectively. In particular, under the proposed legislation, employee associations and their members are prohibited from participating “in concerted action” if such action is in contravention of the employees’ duties under the applicable conditions of employment. While Bill 78 does not prevent an employee association from declaring a strike, freedom of association can and is exercised in multiple other ways and contexts. A group of professors or staff may refuse to teach a specific course because they object to the pedagogical content. They may refuse to attend an event or conference because they are protesting a foreign government or are concerned about implications of a corporate sponsorship for academic freedom. These individual and coordinated acts of freedom of conscience should be dealt with through the employee-employer relationship, not heavy-handed government-imposed fines. Tying limits on freedom of association to variable and potentially broad employment requirements has implications far beyond basic access to education and may have unpredictable and unintended consequences.
Mandatory penalties that the government could require universities and colleges to impose on students associations are also very severe. If, for example, an institution is unable to instruct its students and the Minister of Education, Recreation and Sports “notes” that this is a result of a student association failing to comply with its obligations under the Act, the Minister could order the institution to defund the association and deny the group free access to space and notice boards. Every day or part of a day that instruction was interrupted would result in one term of defunding, and the order would apply not only to the current student association but also any successor association. The result would be to severely curtail the freedom of association and expression of not only current student groups, but also future student groups not yet formed.
The direct restrictions and wider chill that Bill 78 places on freedom of expression, freedom of association and peaceful assembly are immeasurable. Any legal measures the government puts in place to address the ongoing events in Quebec must comply with both the Quebec and Canadian Charters.
The Bill includes the following provisions:
- Although university or college employees may still declare a strike, they may not participate in “concerted action” if it means that employees do not report for work and fully perform all their employment duties (ss. 10, 11, 12)
- An association of employees must take “appropriate means to induce its members” to comply with these prohibitions (s. 15)
- An association of employees is liable for third party damage caused by its members that contravene this prohibition, unless the association can prove that the damage was not caused by the contravention or the contravention was not part of a concerted action (s. 23).
- No individual may, by act or omission, directly or indirectly contribute to the slowing down, degrading or delaying of university and college instruction to students (s. 13). Impeding a college or university employee’s instruction-related work is also prohibited (s. 13).
- An association of employees or students must take “appropriate means to induce its members” to comply with these prohibitions (s. 15).
- An association of students or employees that helps or induces its members to violate this provision is liable for third party damage caused by its members that contravene this prohibition (s. 22).
- No one can deny students access to a place where a university or college provides services (s. 14). No one can deny university or college employees access to a place where the employee needs to be in order to “perform functions” for a college or university (s. 14).
- Any form of gathering that could result in student or employee access being denied is prohibited within 50 metres around the grounds of a building where college or university instruction is delivered (s. 14).
- Both student and employee associations must employ “appropriate means to induce” members not to violate these prohibitions (s. 15).
- Any association of students or employees that helps or induces one or more of its members to violate these prohibitions is liable for any damage caused by violating members (s. 22).
- The organizer of a demonstration with 50 or more people that will take place in a publicly-accessible place must notify police at least 8 hours ahead of time of the date, time, duration, venue and, if applicable, the route of the demonstration. When police believe the planned venue or route poses a serious risk to public safety, the police may require a change of venue or route (s. 16).
- The organizer of a demonstration and any participating student association must “employ appropriate means” to make sure the demonstration follows the approved plan (s. 17).
- Anyone who helps or induces a person to commit any of the above offences is also guilty of that offence (s. 30).
- If the Education Minister “notes” that a university or college is unable to deliver instruction as a result of a student association’s failure to comply with the provisions in the Act, the Minister may order the college or university to cease collecting student association fees and to stop providing free access to rooms, furniture, notice boards or display stands. This cessation will last one term for every day or part of a day that instruction was interrupted by a student association’s violation, and continues to apply to any successor student association (s. 18).
- Anyone who violates the above provisions may be fined between $1000 and $5000 per day that the violation continues (s. 26).
- If the person is a senior officer, employee or representative of a student or employee association, or an individual who organized a demonstration, the fine increases to between $7000 and $35,000 per day (s. 26(1)).
- If the offence is committed by a student or employee association, or an group that organized a demonstration, the fine is between $25,000 and $125,000 (s. 26(2)).
- These fines are doubled for a second offence (s. 26).