This will just be a set of links. Please contribute more links and / or discussion in comments.
Here is a downloadable PDF of the final (English) version of the bill.
Jacob T Levy's critique of the "banana republicanism" of the bill. (The title of this post is inspired by his critique.)
Aaron Bady's take: "il faut défendre la société contre les étudiants."
[UPDATE 22 May, 7:50 am CDT: Daniel Weinstock, "an open letter to my English-Canadian friends."
[UPDATE 21 May, 8:45 pm CDT: a wonderful Tumblr: http://www.arretezmoiquelquun.com/ ("somebody arrest me!") with lots of great homemade signs: "je désobéis" / "I disobey"]
Here is the Québec Bar Association's press release on Bill 78. [UPDATE: 20 May, 5:20 pm CDT. Below the fold, a brief comment on and translation of the memo, by Iain Macdonald. UPDATE 21 May, 8:40 pm CDT: changing the term from "memo" to "press release."]
Bill 78 and Its Questionable Constitutionality, According to the Québec Bar Association
The student strike in Québec is now in its 14th week. The government, unwilling to negotiate with the students, has instead passed emergency legislation (Bill 78) in order to force an end to the crisis. This legislation came into effect on May 18.
What follows is an unofficial translation of a press release issued by the Québec Bar Association regarding Bill 78, which proposes severe restrictions on individuals, student associations, unions, and the freedom of assembly and expression more generally, as well as giving extraordinary powers to the government. The Bill was rushed through its various stages, leading up to its coming into effect, in a period of merely 24 hours. The stages of the Bill, a list of amendments, and an English translation of the final text of Bill 78 are available here: The original version of the Québec Bar Association’s press release is available here:
The Bar Association’s press release was issued prior to the Bill receiving Royal Assent (on the evening of May 18), and thus takes aim at its first draft. For obvious reasons, the Bar Association is not in a position to critique a law once it has come into effect. Some provisions were changed in the interim. Not all of the amendments are salutary. Among the amendments: the government arrogates the right to “take all necessary measures” to enforce certain sections of the law (s. 9); the maximum number of protesters taking part in an unannounced demonstration was changed from 9 to 49 (s. 16); the police must consider that the planned route or venue poses “serious risks for public security” in order to deny approval or require modification to the planned demonstration (s. 16); omitting to discourage or prevent an offence is not an offence, as originally proposed (s. 30); an association of employees is solidarily liable for any damage caused to a third person through the fault of an employee, in the context of the resumption of classes (s. 23).
In spite of the amendments made to the law, the substance of the Québec Bar Association’s critique remains valid.
I will also mention that Bill 78 remains in effect until July 1, 2013. This will, in all likelihood, allow the government to benefit from its effects during the run-up to the next election. (An election must be called before the end of 2013, but many believe it will happen long before the final hour.) Bill 78’s broad provisions of course apply to political demonstrations as well (against the ruling Liberal Party, for example).
The constitutionality of Bill 78 will of course be challenged in the courts, but such challenges will not be resolved until long after the law has taken its toll on society.
Please note that I am not a lawyer and am merely reporting my personal perspective on the law and presenting a translation of the Québec Bar Association’s press release.
Proposed Bill 78 – An Act to Enable Students to Receive Instruction from the Postsecondary Institutions They Attend
The Québec Bar Association Expresses Serious Concerns
Montréal, May 18, 2012 — Whilst the debate on proposed Bill 78 (“An Act to Enable Students to Receive Instruction from the Postsecondary Institutions They Attend”) is in progress in the National Assembly, the Québec Bar Association expresses serious concerns regarding the proposed law. “I consider that the proposed law, if adopted, would infringe upon the fundamental constitutional rights of citizens. The scope of the restrictions on fundamental freedoms is not justified in view of the objectives of the government,” said the President of the Bar, Me Louis Masson, Ad. E.
“Upon preliminary analysis, the Québec Bar Association is particularly concerned by the restrictions placed upon the right of association and of demonstration. Moreover, we criticize the judiciarization of the debate and the recourse to criminal law in the proposed law,” added the President of the Bar.
Several of the proposed law’s sections clearly place restrictions on the right to peaceful demonstration that are applicable to all citizens, whatever the reason for the demonstration. For example, among the provisions that run contrary to the freedom of expression are those requiring the organizers of demonstrations involving 10 or more individuals [later changed to 50 or more, I.M.] to submit written notice to police at least 8 hours in advance of the event, including the route and any transportation arrangements; and the empowerment of the police to order a change of venue or route. “The government is making it very difficult to organize spontaneous demonstrations, for example. It is setting limits on the freedom of expression. This measure applies to every person, organization or group, and even obliges those who participate in demonstrations to make sure that the event conforms to the information submitted to the police. One wonders who will dare to participate in demonstrations,” said the President of the Bar.
The Bar is also of the opinion that the severe financial penalties imposed on [student] associations will also limit the freedom of association and could threaten the associations’ survival, in the event classes do not resume at educational institutions, owing to acts attributable to these associations.
The Bar is also concerned about the reversal of the burden of proof that would render student associations and unions [such as professors’ unions—I.M.] responsible for acts committed by third parties, with whom they have no connection—such as protesters from different institutions or networks [e.g., university-goers protesting at colleges—I.M.]. With this measure, the government departs from the provisions of the Civil Code. Student associations and unions do not employ their members, and so do not exercise control over them. It runs contrary to basic principles of civil responsibility to make them responsible for wrongful acts committed by others, without having to prove their direct involvement,” stated the President of the Bar.
The Bar also condemns the additional powers accorded to the Minister of Education [later broadened to the government in a subsequent amendment—I.M.], who is empowered to order institutions to cease the collection of student association dues, regardless of any other provision. “These are powers that are greater than those of the National Assembly, since the proposed law allows the minister to bypass the enforcement of [existing] laws or regulations by decree, without having to take the matter before the National Assembly,” said the President of the Bar.
The severe criminal provisions that target youth are also of concern to the Bar. They could, for example, discourage young people from assembling and participating in peaceful demonstrations, or from organizing them. “These provisions, like the one that goes beyond the Code of Civil Procedure in order to promote class action, will lead to excessive judiciarization of the debate,” added the President of the Bar.
“Several of the proposed law’s provisions threaten the principle of the rule of law, which requires, in the interests of proportionality, that rules of common law [ius commune—I.M.] be set aside only on the basis of a convincing justification. I fear, however, that the proposed law does not make this case and so threatens our fundamental rights,” added the President of the Bar.
“The Bar pursues the same aims as the government and hopes for a resolution of the crisis, for a return to peaceful conditions and to the classroom for all those who wish to carry on with their studies. Our hope is that this should occur through respect of the rule of law, and in conditions of social peace. The plan to modify the academic calendar in order to allow students to finish their semesters is laudable. For this to work, legislation will have to be adopted and respected, but care must be taken not to include provisions that will harm the integrity of our fundamental rights,” concluded the President of the Bar, Louis Masson.
Translation by Iain Macdonald