Ethan Cox is a Montreal-based writer and political organizer. He was formerly FTB’s news editor and the Quebec director of Brian Topp’s NDP leadership campaign. He is currently a special correspondent reporting on the Maple Spring for Rabble.ca where this post originally appeared.
Quebec Superior Court Chief Justice François Rolland on Wednesday rejected a motion filed by Quebec’s student associations asking for an emergency injunction against certain elements of Quebec’s contentious Bill 78.
In a twenty-one page decision released late Wednesday afternoon, Rolland found that the students case had the “appearance of right”, but failed to meet the two other criteria for this type of emergency injunction, namely “irreparable prejudice” and “balance of inconvenience”.
In Quebec’s legal system various types of injunctions are available, to deal with situations too urgent to leave until a full court case can be conducted, potentially years in the future.
The injunction sought here was a “requete en sursis“, which is similar in nature to a safeguard injunction, and requires the aforementioned three standards be met. It is the most immediate form of injunction, and as a result it is the most difficult to obtain.
In addition to proving that your cause of action is not frivolous, and that you have a reasonable chance of winning the eventual court case (the “appearance of right”) you must also prove that if the injunction is not granted you will suffer irreparable harm, which cannot be remedied at a later stage (the “irreparable prejudice”), and that greater damage, or inconvenience, will happen to you if the injunction is not granted, than would to the respondent if it is granted (the “balance of inconvenience”).
“We have to remember it’s a decision on an emergency injunction, which was only seeking to temporarily suspend some articles of the law. Soon we will be able to argue against the law itself, and we have high hopes that when we argue on the deeper issues we will win,” said Gabriel Nadeau-Dubois, co-spokesperson for CLASSE, one of the student groups seeking the injunction.
In an interview with rabble.ca after the decision was released, Nadeau-Dubois explained that the student groups had filed two motions, today’s injunction, and a request to annul the law in it’s entirety. The second case will hopefully be heard this fall.
On the question of whether the student groups would appeal this ruling, or simply proceed with their main case against the law, Nadeau-Dubois wasn’t ruling anything out. CLASSE will be meeting with their lawyers, and other student associations, tomorrow morning to determine their strategy going forward, but nothing is off the table.
Nadeau-Dubois described Bill 78 as “a strategy from the government to apply the law in the short term, knowing the process to challenge the law will take longer. It’s a deliberate strategy to override the institutions which are there to protect our rights. If it succeeds then any government can pass an unconstitutional law, knowing by the time it’s overturned the crisis will have passed. It’s a terrible precedent.”
Justice Rolland’s impartiality has been harshly criticized by La Presse and Le Devoir, among others, in recent months. He has been quoted arguing that judges must not take part in public discussions, because doing so will compromise their impartiality. Nevertheless, he appears to have done just that earlier this year, when he told students seeking injunctions allowing them to return to class to appeal to the government, and seemed to demand that the government intervene. They of course did, with Bill 78, and he is now the judge handling appeals of the law.
“We had asked the judge to recuse himself in other matters, injunctions, because we thought he was not impartial at the time. This time we decided not to ask him to do so, and maybe that was a mistake. We will be considering all our options about this judge in the future,” said Nadeau-Dubois.
He also took strong issue with the government assertion that freedom of association does not apply to student associations in the same way it does to labour unions.
“We can’t wait to argue the real case. We have strong evidence and documents which prove that the student strike is legal, it should be recognized, and obviously freedom of association applies to student associations as well as unions. When it [the provincial law granting recognition and rights to student unions] was originally passed by the National Assembly, the argument that was made was that obligatory fees are at the heart of having the right to associate”.
One of the articles of Bill 78 which the student groups tried to have suspended allows the government to block the collection of dues by a student association or federation which violates Bill 78.
Nadeau-Dubois explained that the threat of this section of the law was one of their main arguments for the urgency and necessity of the injunction, and they were very dissatisfied with the judge’s decision that since the penalty had yet to be applied, their rights weren’t threatened.
“This is a clear attack on student associations, and on our right to freedom of association. If that part of the law is applied in August there is a high probability that it will simply kill the student associations of Quebec. That would be very sad. It’s probably the element of the law which is least explained in the media, but it’s one of the most serious parts.”
There was further confusion over the legality of spontaneous protests. Although Bill 78 seems to clearly make them illegal, the government argued – and Justice Rolland accepted – that they were legal if not formally organized.
“Bill 78 made spontaneous protests illegal. Now this judgement says they are legal, but what is the definition of a spontaneous protest? Citizens will not know if a protest is spontaneous or not, if it is illegal or not. We don’t know what we have the right to organize. In a democratic society everyone should have the right to organize and go down into the streets whenever they want, without the fear of a huge fine,” said Nadeau-Dubois.
To get a better handle on the legal issues involved, rabble.ca spoke to two legal experts to get their take on the ruling. Patrice Blais, a lawyer in Montreal, and David DesBaillets, a law professor at UQAM.
Both expect the students to win, and prove the law unconstitutional, at trial. They cautioned that while this ruling may be a setback, it should in no way be interpreted as a defeat.
“This is a preliminary ruling, which was decided on prejudice and inconvenience, not the facts of the case. It’s important to understand that losing at this stage does not indicate that you have a weak case, merely that you were unable to clear some exceedingly high legal hurdles. It is exceptionally rare to see a law overturned at the stage of a temporary injunction, that’s why I’m not surprised by this ruling. I would have been very surprised if a court at this point granted this injunction, just as I’ll be shocked if the law is not ultimately struck down,” said Blais.
“The court will almost always take the safe, conservative route, and in this case that was putting off a decision on the constitutionality of the law.”
“To me the decision is disappointing. I think it’s a cop-out. The court chose to pass the buck on constitutionality, and cited the case of Manitoba v. Metropolitan Stores Ltd. to establish that they were required to accept the constitutionality of the law Prima Facie, or as a given,” said DesBaillets. “This case was decided on the balance of inconvenience, by a court which was clearly eager to pass the decision onto a higher court.”
Both lawyers noted that it was odd that Rolland accepted the assertion of the Quebec government that Bill 78 does not restrain the right to hold a spontaneous protest. Given that a spontaneous protest would be considered illegal under Bill 78, and participants could be charged for attending, it seems clear that the law does exactly that.
“My reading of the decision is that the court is trying to make a fine distinction between student associations and individual protesters to provide constitutional cover, but in reality we know they’re one and the same,” said DesBaillets. “You’re not going to have much of a protest if no one organizes it or publicizes it, and in this case that’s the student associations. Bill 78 places so many limits and conditions on protests that, in effect, your rights have been curbed to the extent that you no longer have any meaningful right to protest.”
“I certainly think the reason the government inserted a time limit on the law has a lot to do with their own judgement that this law is not constitutional. It looks like they very deliberately passed a law they knew was unconstitutional in order to restore order at any cost, even if it undermines basic civil liberties. It’s a very dangerous precedent,” he continued.
“I find it interesting that the government is trying to minimize the effect of the law in order to justify its constitutionality” added Blais. “The time limit on the law [it is set to expire on July 1, 2013] is also very interesting, insofar as if this case goes to the end, the law will likely have expired and the government will argue that the issue is academic and the case should not be heard. But I think there will be a strong argument to continue the case, that it is not academic, because it will be about the government imposing laws with a time limit and avoiding constitutional challenges to their actions. That would set a very bad precedent in a democracy, that a government could pass any temporary measure without consequence or judicial review.”
“My understanding of the constitution is that it’s on the students side,” summed up DesBaillets. “I can’t imagine the court ultimately upholding this law.”
Photo of Gabriel Nadeau-Dubois courtesy of Justin Ling via Flickr