In the opening line of his analysis of bill 78, professor Jacob T Levy ( McGill University, political theory professor), makes a puzzling statement about this extreme measure. “Special law is every bit the contradiction in terms that ‘student strike’ is. Emergency decrees and bills of attainder aren’t laws, and I won’t be referring to Bill 78 as a law except in scare quotes.”
Notwithstanding my disagreement with his attack on the term “student strike’ (a far too technical and semantic point, in my view), I have to agree that nothing about this decree seems to meet the moral or legal definition of law, in the truest and most democratic sense of the word. Laws in a democratic society must, according to the textbook meaning of the word, be universal, impersonal, general and permanent. Apart from being universal possibly, this law fails to meet any of these standards. It is not general, in that it is aimed squarely at one segment of the population (i.e. the student unions and their protesters). Nor is it entirely impersonal, given that it applies to a specific ongoing situation. As for the question of permanence, no jurist worth their salt thinks that this law will stand the constitutional tests of either the charter of rights for Quebec or Canada. Perhaps that explains the use of the sunset clause, meaning that the law will automatically die on July 1st 2013, unless renewed by the government? Constitutional lawyers may quibble with these points, by mentioning that there are exceptions to all these rules but these principles are not to be infringed lightly, no matter how urgent the crisis.
So what is it specifically about this decree, that’s got so many people, even those that don’t necessarily support the strike, so incensed? If I may, I will parse the bill further, basing myself on Levy’s analysis, I would like to look at the most egregious articles of what philosophy professor Daniel Weinstock of University of Montreal, calls an “odious and shameful” decree.
Section III of the bill (dealing with the giving of notice, police authorization for protests, etc. ) is totally outrageous! Its designed to give the authorities and in particular the police the power to stifle, in effect, the right to freedom of assembly and peaceful demonstration. Not to mention, infringing the right to freedom of expression in Québec. It’s shame that this law will not last long enough for this provision to be eviscerated by the Supreme Court of Canada or the Quebec Court of Appeals. It is so badly written and harmful to our basic human rights, that no Canadian judge in their right mind (maybe a Syrian judge might support this law?), would uphold this section of the law in court.
Section IV of the bill, empowering the state to impose massive fines on student unions in order to coerce them into compliance with the law, is excessive and unnecessary. While I admit that something has to be done to enforce court orders (i.e. injunctions) being violated by protestors ( like those that forcibly evicted law students from their classes last week at UQÀM’s law school), this could be accomplished more effectively and with less harm to our fundamental rights, through some sort of contempt of court ruling by the judges whose injunctions are being ignored.
But the real affront to our democratic society can be found in article 29 of this same section. ‘Anyone, who by an act or omission….induces a person to commit an offence under this Act is guilty of the same offence and is liable to the fine…’ Levy calls this ‘police state stuff’ and says it makes section III, IV and V ‘illegitimate,’ and rightfully so. It basically means that anyone who is in contact with the student unions or protesters, or, even if they avoid them but do nothing to stop them from acting illegally, are liable to the same fines as the protestors and could be taken to court by the authorities.
Our governments need to be extremely careful about the way they respond to perceived threats to law and order. Bill 78, much like the anti-mask by-law introduced by Mayor Tremblay this week (see my column for more info) is an ill-conceived attempt by the Charest government to expand police powers in such a way that they violate basic human rights in Canada and Québec. That the state is dealing with a social and political crisis, is no excuse for it to behave totally undemocratically and ride roughshod over its own legal and moral duty to respect the freedom of expression and assembly of its citizens.
* Image: CTV News