It was one of those days where time flies by like a bumblebee; nonchalantly. The temperature was finally starting to look like spring. As usual my workload was nearly unmanageable, but my coworkers were taking care of the surplus work I had. Feeling less stress than the average day, I felt compel to accept a lunch (averaging 2 hours in length) offer from my mother. We ate, of course, and I even drank a beer, oh frivolous me. We talked politic on that beautiful Thursday as we always do. The topic of the day was the never-ending student strike and the inability of the complaisant and ineffective Québec government to deal effectively with the problem it created in the first place. We were blissfully unaware of the content of the so called special law that the National Assembly was going to pass. Life was relatively good. The next day … not so much.
You can probably guess what the topic of this post is. The few of you who know me and/or read everything I post know that I usually write in French about things that are the business of the francophonie. Although the student strike falls in this category, the hideous thing I read in the English media (ok, I confess I never read the English papers as I find none of them to be adequate for my taste, but those sorts of hideous things often end up all over the internet) and the ignorant and somewhat revolting things some people that I know and thought were progressive posted (to my great surprise and disappointment) encouraged me to break my self-imposed rule in order to make sure everyone would understand what I was writing. It will come to no surprise that I am a lefty (I should add very VERY lefty) and that I do support the students in my home province. Regardless, the above critique does not encompass every argument against the strike as some are well articulated and polite, and as a believer in the freedom of expression, these opinions are not per se hideous (although often disappointing from my point of view). And needless to say that some Québécois are equally guilty of bigotry.
What I found revolting was the condescending, highly individualistic (sometimes narcissist), and misinformed opinion I read. Even though I lived nearly all my life – except for the past two years – In Québec, I did all of my university education in the ROC (University of Ottawa and University of British Columbia). During my time at U of O the tuition increased by approximately 500$ each years. What would the students do? A half day protest. Not very impressive if you ask me. Nevertheless I did not interfere as I found that it was not my place to tell Ontarians students what to do. After all I am an outsider and I have to admit that I sometimes have trouble understanding the ROC. I shared my opinion with people who wanted to hear, but always in a respectful way. I know none of you are the Margaret Wente or the Macleans of this world, but I wish to communicate this simple thing: the biggest mistake a non-Québécois can do is to critique an outside movement without first really understanding it and the society that created it. It does not preclude self-reflection on your education system or on broader debates of university financing, asking questions about the strike, etc.; however characterizing Québec students as spoiled brat, using comparison with ROC tuitions without context or reflection, and complaining about the strike when it doesn’t even affect you are no ways of making friend in the Belle Province. Before calling the student strike ridiculous, ask yourself those simple questions: does it need to be said? Does it need to be said by you? And does it need to be said by you right now? By the way this simple exercise is applicable to anyone in pretty much any situation. Click here for a more on this topic.
Now that I’ve dealt with this, I can jump into the heart of my current concern: bill 78. For those who have been living under a rock, bill 78 is the so called solution the government found to the student strike. Everyone was expecting the measures “freezing” the current semester until August. I might not be for it, but at least it stays in the realm of reasonableness. What bothers me is the rest: an unnecessary, unwarranted, pompous and overreaching law limiting freedom of expression, association and peaceful assembly that goes beyond what is constitutionally acceptable (it’s been denounced by the Barreau du Québec, the Canadian Civil Liberties Association, UN Special Rapporteurs, and Amnesty International, amongst others). It is grotesque and shameful. For the first time in my young existence I was truly ashamed of my province. I never liked the current government but I thought that Québec was minimally protected against the sort of bigotry I expected from the far right. Bill 78 is the kind of measure would expect from the federal government, but never from my home province. On 18 May 2012, I was ashamed of being a Québécois.
There are two sides to this law: a legal one and a social one. I won’t dedicate too much time on the unconstitutionality of the law as it’s relatively obvious and simple. On the one hand, freedom protected by the Charter a quite broad and thus any limit, however small or logical it may seem, is a breach. The real question is thus are the restrictions imposed by Bill-78 saved by section 1 of the Charter? To be “saved” by section one, an impugned law must survive the Oakes test. The test is four parts: (1) is the objective of law legitimate; (2) is the objective rationally connected to the breach; (3) is the breach a minimal impairment; and (4) is the breach proportional to the objective. If a legislative provision fails at any step, it will be found unconstitutional. Bill 78 will probably pass the first step, but many of its provisions are arbitrary, disproportionate and overbroad. The fines are excessive, the restrictions on protest are disproportionate, police forces are granted too much power, the burden of proof for certain provision is reversed (presumed guilty), student associations are treated as if they have complete control over their membership, the parameters of the legislation are ill-defined, etc. One thing is certain: the Superior Court of Québec will not lack reasons to declare this law unconstitutional.
Court proceedings are, however, not known for their expediency. The questions remain: what should happen in the meantime? Should everyone respect the law until it is declare unconstitutional or repealed? Or is it our duty as citizens to protest the law and by doing so disobey the law? The rule of law – no one is above the law and everyone is bound by it – and democracy may favour the former at first view. But as it is often the case in law, it all depends on how you interpret the law. If the rule of law means that the constitution, and thus the Charter, is supreme, to what extent does it require us to follow an abusive and unconstitutional law? Can the principle of democracy require that citizens forego there democratic rights (as democracy is not expressed solely through elections) in order to obey the elected National Assembly? I do not have academic answers to those questions at this time. Personally, and it will come as no surprise, I feel that in a situation as the present one, disobeying Bill 78 is justified and actually an excellent exercise of civil rights. Before I move on to the social aspect of Bill 78, I’ll do one parallel with the civil rights movement of the US. Firstly, I am in no way comparing and/or equalling the plight and discrimination black people have and continue to suffer with what is happening in Québec; they are completely different things. I am using this parallel as an example to demonstrate that civil disobedience can be necessary and useful to create positive/needed change in society.
I may have felt shame the day the National Assembly adopted Bill 78 and no one in the liberal caucus had the decency of opposing it, but since that time, I must say the ongoing protest (now generalized beyond the tuition question) is giving me hope. A hope that we are able to move, even if only a little, pass the general feeling that nothing can be done, that the economic changes are inevitable, that the quiet and comfortable life of people should never be disturbed and that authority should be respected above all else. The law was adopted to bring back the so called “social peace”. Well it’s too late for that. The only thing Bill 78 did in that regard was to push more people out of their home onto the streets … with casseroles! After months of doing nothing, the government used the negotiation process as a political tool (apparent by its wish of not addressing the real issue such as tuition and Bill-78 and by the tone it uses when speaking of the students) and adopted the law and order discourse, which is very hypocritical coming from the government who constantly chastises the federal government on that point. How can this government ask us to respect the law when it adopts legislation like Bill 78 and while its police forces abuse their powers? How can it ask us to respect democracy when it is blind and deft to the social discontent of its population? How can it ask student to do/pay their fair share when the government is drowning in corruption scandals of all sorts and prepares to sell Northern Québec for peanuts? In Jean-Jacques Rousseau’s words, the social contract is broken. The government went too far and gave a reason to all the dissatisfied citizens to express their outrage, their discontent and their “ras-le-bol”. Are broader social changes in the move? Maybe, I don’t know. One thing I know is that this movement is not getting tired yet and the constant failure of the government to deal responsibly with the student question and now with broader social issues only gives it fuel. The government would probably benefit from taking a few courses (in sociology and law for example). I wonder where all of this will bring us. Sadly, I have little hope in our current political system and I don’t see how this government waking up soon. Maybe my hope should be placed in the street? To your casserole!
 Section 2 of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitutional Act, 1982, Enacted as Schedule B to the Canada Act 1982, (UK) 1982, c 11 : http://laws.justice.gc.ca/eng/Charter/
 See Irwin toy ltd v Quebec (Attorney general),  1 SCR 927 per the Chief Justice, Wilson J. and Lamer J. (http://scc.lexum.org/en/1989/1989scr1-927/1989scr1-927.html); Libman v Quebec (Attorney General),  3 SCR 569 at paras 27 to 37 (http://scc.lexum.org/en/1997/1997scr3-569/1997scr3-569.html); and R v Collins,  OJ No 2506, 31 CR (3d) 283.
 R v Oakes,  1 SCR 103 (http://scc.lexum.org/en/1986/1986scr1-103/1986scr1-103.html); see also R v Keegstra,  3 SCR 697 per Dickson C.J. (http://scc.lexum.org/en/1990/1990scr3-697/1990scr3-697.html)
 See Reference re Secession of Quebec,  2 SCR 217 at paras 61-78 for a description of the principals of democracy and rule of law (http://scc.lexum.org/en/1998/1998scr2-217/1998scr2-217.html)