Translating the printemps érable

Speech by Véronique Hivon, MNA for Joliette and Parti Québécois justice critic, on Bill 78.

TRANSLATION:

Mme Hivon: Thank you, Madam President. I notice, in the initial interventions of my colleagues opposite, that they have not said a word on the contents of their emergency law. They are of course continuing their set piece; they are beginning to believe seriously that they are in the film they have scripted themselves, but unfortunately Quebecers are not fooled. They are outraged to see what has been happening for weeks now, and they are completely – I do not think the word is too strong – bowled over by what has been tabled before us tonight, before the elected officials who, democratically, are supposed to represent them.

Why? Because it is odious, it is ignoble, it is profoundly unacceptable and unjust. It calls into question the fundamental principles of democracy. It calls into question fundamental values. It calls into question nothing less than the freedom of expression. This bill contains a severe attack on freedom of expression and association, and we are asking what the government thinks of collective rights. This freedom of expression, this reality of student associations, is completely on its way out the door with this bill.

Quite sincerely, I don’t understand how a government could let such a bill be tabled. There are doubtless people in that government who decided on law and order, but there must be people in that government who want to preserve social peace, who still believe in our liberties, who still believe in individual rights but also in collective rights.

In particular, I am wondering how a minister of Justice could have let such a thing by him. I wonder how they convinced a law clerk to draft such a thing. I may seem alarmist, Madam President; I think you know that isn’t my style, but what we are looking at tonight is very grave.

If you will allow me, because the government for its part does not seem very proud of this bill since it has not said a word about it, I would like to discuss certain completely unacceptable elements of this bill.

Section 3, Madam President: “Every institution and its officers and representatives must employ appropriate means to ensure that institutional services are delivered or continue to be delivered to all students having a right to such services.”

What does that mean, “appropriate means?” And why, once again, is the government hiding behind other actors? Who will bear the shame of these “appropriate means”? Not the government, no; it will be the institutions, the management of the institutions. Such a brave gesture.

Section 9, Madam President. This one is especially muscular and, to my knowledge, is completely unprecedented. What is going on in article 9? Quite simply the abolition of the principle of separation between the executive and legislative branch, nothing less. Why? Under section 9 – and this is right there in black and white, this is not an interpretation, this is not something I’m making up based on three or four possible interpretations, I quote: “The Minister of Education, Recreation, and Sports may take all necessary measures […] including specifying certain legislative […] provisions…”

Who normally adopts legislative provisions? Here I thought it was the National Assembly, the MNAs. So I’m going to need an explanation. “As not applicable…” So it will decide in an Act: Here’s a bill, and I am deciding that this, that, and the other section will no longer apply, from my high position as Minister of Education.

So this is truly a deep attack on the principle of separation of powers. You know, in committee we have a fight whenever regulatory powers are too broad, saying that these regulations have to pass before the legislative branch because we cannot give a blank cheque to the executive branch. Imagine, just imagine the blank cheque that the government is giving itself, the absolutely disproportionate power in a democracy, that the Minister of Education is giving herself.

And it goes further: she can “prescrib[e] any other necessary modification to this Act…”. What does that mean? She can negotiate with the managements of institutions. So we have this bill that we have shoved down people’s throats, and now we will see with you what adaptations we could make that you might like. So, yes, in theory there is a legislative branch, but we decided that it would be a bit cumbersome, so we have come to discuss with you. Sincerely, I would like to see what kind of support the government will have for that wording, which, I repeat, is in my opinion unprecedented.

Section 10: “All employees must” – so we are creating the entire regime for employees – “[…] report for work according to their normal work schedule…” Very well. They will have to go. Whatever the circumstances, they must report for work. So even for reasons of safety, they are required, on pain of fines, to be at work every day, between such and such o’clock, and to hell with safety.

Section 13. So in section 13, you see, it is stated that “No one may, by an act or omission” – this also is really something – “deny students their right to receive instruction from the institution they attend or prevent or impede the resumption or maintenance of an institution’s instructional services or the performance by employees of work[…] or directly or indirectly”– indirectly – “contribute to slowing down, degrading, or delaying the resumption or maintenance of such services or the performance of such work.”

I was discussing this with my colleague earlier, the member for Lac-Saint-Jean, and we were saying: If there is a demonstration, I don’t know, 500 metres away… We know that here it says that there can’t be anything within 50 metres from the perimeter of the institution. So if you have a huge campus, you go entirely around your huge campus, and protests have to stay 50 metres away. A little restriction that is fairly significant for the right to protest and the freedom of expression, but I’m not even there yet. So with this “indirectly,” we’re saying that if you are protesting, I don’t know, 500 or 700 metres away, someone could come and say, Oh! Indirectly, they impeded access to the institutions. Another lovely way of promoting freedom of expression in a free and democratic society, Madam President.

Section 16. Now section 16, here we’re going completely overboard. And here, I should add, law professors have already spoken out. We are no longer in the context of the student conflict at all. We are taking advantage of it to restrain, in a completely outrageous manner, the right to protest, by saying that “a person, a body or a group that is the organizer of a demonstration involving 10 people or more to take place in a venue accessible to the public must, not less than eight hours before the beginning of the demonstration, provide” all the information “[…] in writing to the police force.” So that means no more spontaneous demonstrations. But it’s much worse than that: 10, 12, 14 people get together spontaneously to demonstrate, to signal their disagreement with or their approval of an action, and they have to advise the authorities, eight hours in advance, of their route and how they will get there. Listen, this is nonsense. We understand that the government is surely very worried about how things will go during its next election campaign, but honestly, going to this level is completely senseless. So, that’s section 16.

Moving on, section 18, paragraph 2: “If the Minister notes that the institution is unable to deliver instructional services” – we are talking about the institution, the educational institution – “as a result of a failure by a student association to comply with an obligation imposed by this Act, the Minister may, despite any provision to the contrary, order the institution to cease…” So all the other laws that exist are unimportant; “despite any provision to the contrary.” And I’d just like to say that this comes up a huge amount in this bill, “despite,” “despite any other law,” and we have an example here. So he can “order the institution to cease collecting the assessment established by the student association or any successor student association and to cease providing premises, furniture, notice boards, and display stands[…] free of charge.”

So this, Madam President, is a head-on attack on student associations’ freedom of association, and furthermore, it gives this power, the power to cut off student associations’ lifelines, to a completely arbitrary authority. How will they judge? We are not talking about a neutral arbiter, here. We are not talking about a body that will say, here we are in front of the situation described. No, that’s not at all how this will work. It is the institution and its managers who will decide.

I continue to section 22. What we say here is that a student association and a federation of associations to which it belongs “are solidarily liable for any damage caused to a third person as a result of a contravention of section 13 or section 14 relating to the institution, unless they prove that the damage is not attributable to the contravention or that the contravention is not part of any concerted action.”

This is more technical, but in law, it is fundamental. In civil responsibility, you must prove three things: the fault, the damage, and the link between the two, the causal link. This reverses the burden of proof. We presume that you are at fault, we presume that you caused the damage, and you are responsible for proving that you are not the one who caused the harm. This is something that exists in a highly exceptional fashion for serious faults, and here it is being thrown in left and right in this bill before us today.

Section 24 is a total intrusion into the judicial branch. So earlier we saw that the executive branch has decided to give itself legislative power; but here it’s invading the judicial branch as well. It is a real paradox, given how often the government invokes the principle of judicial independence not to say a word on conflicts that might be emerging; well, here, it is moving right in and giving itself judicial power. It is redefining, despite the Code of Civil Procedure – another “despite,” Madam President, here it is the Code of Civil Procedure, article 1003 on class actions that we are setting aside. I suppose it was a bit cumbersome for the government’s purposes. So we are redefining and telling the courts that they will now have to decide that a class action can be brought, because, of course, they want to facilitate class actions in the circumstances they like. So another fine example of an assault on the principle of the separation of powers.

And then, Madam President, we have section 25’s whole list of fines, of course, exorbitant fines, whether for a person, a senior officer, up to $35,000 for a senior officer, up to $125,000 for a student association. Listen, it’s utterly exorbitant.

Section 29. Now, this one – I know I’m repeating myself, Madam President, but we are going from horror to horror. 29, I think this one is worth reading. “Anyone who, by act or omission, helps or, by encouragement, advice, consent, authorization, or command, induces a person to commit an offence under this Act is guilty of the same offence…” So here, you can imagine, you have the parent who did not tell h child not to go protest. Has he committed the offense? You have the student who refused to call for calm. Has she committed the offense? What her brother or her friend goes to protest with her knowledge? Listen, the red square, is the red square an encouragement? Are we going to go there? I tell you, the way it is written, it’s so broad. I say again: encouragement, advice, consent. Your child is going to go protest, and you say “all right.” So if there is a problem, you as much as your child will be penally responsible? Listen, this is just complete insanity.

And finally, section 31, another serious intrusion into the judicial branch. This government, which told us that we should encourage the use of the courts, injunctions – the premier said himself that this was what we should do – well, this is a pretty incredible paradox, article 31 says that the injunctions are revoked, and retroactively. So this famous judicial independence is once again totally eliminated, because the executive branch is saying that the injunctions given up until now are cancelled, and I am doing it retroactively.

But, quite remarkably, the second paragraph maintains proceedings for contempt of court. So I think this is the Gabriel Nadeau-Dubois clause, to make sure that a prosecution for contempt of court can be maintained, because we know that certain members of the government are rather obsessed with that student leader.

So, Madam President, this is a first overview; you will understand that this is just what we noted in a very brief study. I can barely conceive of how harsh the comments about the government will be over the next hours and days, and very sincerely, I think that, if there are people in this government who still have a little honour, who believe in democracy, who believe in the fundamental values and principles of our society, there is still time to withdraw this bill. Thank you.

[Note. The version referred to in the speech is the version as originally introduced: http://www.scribd.com/doc/93984945/Bill-78

The version as amended and passed is here: http://www.scribd.com/doc/94145200/Bill-78-English]

Translated from the original French by Translating the printemps érable.

*Translating the printemps érable is a volunteer collective attempting to balance the English media’s extremely poor coverage of the student conflict in Québec by translating media that has been published in French into English. These are amateur translations; we have done our best to translate these pieces fairly and coherently, but the final texts may still leave something to be desired. If you find any important errors in any of these texts, we would be very grateful if you would share them with us at translatingtheprintempsderable@gmail.com. Please read and distribute these texts in the spirit in which they were intended; that of solidarity and the sharing of information.