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July 19, 2012
Original French Text: http://www.cdpdj.qc.ca/Comm_HTML/COMM_PL78_commentaires_juillet2012.html
For immediate circulation
Special law aimed to ensure the students’ return to classes
Some disposals of the Law infringe upon the Charter of Human Rights and Freedoms, according to the Commission des droits de la personne et des droits de la jeunesse [The Human Rights and Youth Rights Commission].
Montreal, July 19, 2012 – The Commission des droits de la personne et des droits de la jeunesse [The Human Rights and Youth Rights Commission] is of the opinion that the special law seeking to ensure the students’ return to classes infringes upon fundamental freedoms guaranteed by the Charter of Human Rights and Freedoms.
The detailed analysis of the Law allowing students to receive education dispensed by the post-secondary institutions they attend, which was made public today, confirms the serious concerns that the Commission had expressed last May 18 when the National Assembly adopted Bill 78. The Commission had then committed to analyze the Bill, in accordance with its responsibility to take issue with disposals of Quebec laws that are contrary to the Charter.
The 56-page analysis recalls that the Quebec Charter is a fundamental law that has a quasi constitutional status and that has precedence over all other Quebec laws. Article 52 of the Charter cautions that no legislative disposal, even subsequent to the Charter, can derogate from articles 1 through 38, unless the las enunciates explicitly that the disposal is to be applied despite the Charter.
The Commission concludes that articles 12 through 31 of the Law infringe directly or indirectly upon fundamental freedoms, including freedom of conscience, of opinion, of expression, of peaceful assembly, and of association, guaranteed by the Charter. These articles of the Law do not satisfy the test of justification of compliance with the Supreme Court’s jurisprudence in the application of article 9.1 of the Charter.
These articles of the Law should consequently be lawfully inapplicable, given that the legislator has not specifically derogated from the Charter, in accordance with article 52 of the Charter.
More specifically, the Commission considers that the following articles are contrary to the Charter:
- Article 13 because it infringes upon the freedom of expression, of peaceful assembly and of association. Formulated in broad and imprecise terms, it forbids gestures and activities that are protected by the guarantees relative to fundamental freedoms.
- Article 14 because it infringes upon the freedom of peaceful assembly and, consequently, to the freedom of expression and of association by forbidding all assemblies inside a building where educational services are dispensed, on its lot, or within a 50 meter radius of its outer limits.
- Articles 12 to 14 because they infringe upon the freedom of conscience of targets individuals by forcing them to act in disregard to their feeling of solidarity and to their convictions.
- Article 15 because it infringes upon freedom of association by imposing a principle of distinct responsibility upon targeted associations, which includes an obligation of means or consideration towards a control that they do not have, either in fact or in law, upon their members.
- Articles 16 and 17 because they infringe upon the freedom of expression and of peaceful assembly by implementing a regulation of prior declaration for all demonstrations of 50 or more people.
- Articles 18 through 31 because they infringe upon the freedom of expression, of peaceful assembly and of association owing notably to the severity of the sanctions and of the doubt that they raise pertaining to what is allowed or not.
The document Commentaires sur la Loi permettant aux étudiants de recevoir l’enseignement dispensé par les établissements de niveau postsecondaire qu’ils fréquentent (L.Q. 2012, chapitre 12) is available at the following address [transl. note: not yet translated]: www.cdpdj.qc.ca
Source : Patricia Poirier 514 873-5146 or 1 800 361-6477 extension 358 email@example.com