Law 78: An Explanation

01.06.2012 - Montreal - Pressenza IPA

This text is a point-by-point summary of the law’s Sections, meant to explain and clarify the law.

Please note: This is NOT legal advice, this is simply an attempt to clarify the law. It is of no legal standing.

Division I – INTERPRETATION

Section 1: Defines the relevant terms. These interpretations will be used throughout the law.

Division II – CONTINUANCE OF INSTRUCTIONAL SERVICES

All semesters which were and remain under strike mandates are suspended (including both winter 2012 and summer 2012). The understanding of this paragraph is essential to better understand the text, as many of the following Sections make reference to it.

For all CÉGEPS (excepting Maisonneuve and Ahuntsic) courses must start August 17th. In these institutions, the courses are suspended until the resumption of class, as determined by the CEGEP, unless it cancels the interrupted classes.

There is also a clarification to assure that nothing prevents the institution from organising a summer semester for the 2012 scholastic year or from organising a summer resumption of class, in the form of an agreement between all parties, as defined below.

– Section 3: The instructional institutions and their administration use all necessary means to assure that instructional services are offered to all students. This section takes effect at the resumption of classes for those affected by the suspension of the semester, and immediately for those unaffected.

– Section 4: Simply put, this section means that CEGEPS (with suspended semesters, per Section 2) must send a plan for the resumption of classes before June 1st. They can do what they wish to ensure the validity of the winter and autumn semesters, and if necessary, winter 2013 as well.

– Section 5: This section simply mentions that if the courses are suspended in a CEGEP (as per Section 2), the college must ask students prior to June 15th, 2012 if they wish to continue the suspended courses or not.

– Section 6: A CEGEP may take special measures in order to ensure the validity of its semesters, even in spite of the definitions provided earlier (“course”). They may, among other things, end the teaching and evaluation period at the latest September 30th. This Section also allows CEGEPs to organise semesters shorter than 82 days, as long as the course objectives are met.

It may also ask teachers to use special educational measures necessary to attain the course objectives.

This section effectively allows CEGEPS to modify their semesters in a particular way (fewer teaching/evaluation days, ending the winter semester in autumn, special educational measures, etc.)

– Section 7: A university must do everything in its power to not penalize students from CEGEPS whose courses have been suspended/interrupted for the winter 2012 semester, both in the fall 2012 and winter 2013 semesters, regardless of any provisions indicating otherwise.

The goal here is to oblige universities to be as flexible as possible towards students and to avoid penalizing those affected by the suspension/interruption of courses for the winter 2012 semester.

– Section 8: This section confirms the authority of an institution’s administration to reorganize winter, summer and autumn services to mitigate the student strike.

– Section 9: This Section explains that the government (under recommendation of the Ministry of Education, Recreation and Sports [MELS]) may implement ANY measures necessary to assure the enforcement of Sections 2 and 4-8 (explained above). “All necessary measures,” includes the modification of legislation and regulations, either of this law or other laws/regulatory instruments (MELS directives, etc.).

Institutions must respect all government directives. Further, the ministry must approve every agreement made in the framework above with employee’ associations (eg professors’ unions).

– Section 10: As of the law’s application, all employees of a post-secondary institution must be at work, per their normal schedule, except those who have resigned, dismissed, or retired.

– Section 11: As of the law’s application, an employee must comply with all duties associated with his/her job (eg. Professors must respond to students’ questions on the class material). She or he may not stop, slow down, degrade or alter his or her normal activities (This prohibits the voluntary disruption of work quality as a pressure tactic, or for whatever reason judged not conducive to the delivery of instructional services).

– Section 12: This section clarifies the preceding two sections. It specifies that these do not bar the right to strike as an employee. They are, however, prohibited from taking part in any actions covered in Sections 10-11.

– Section 13: No person may (whether by action or omission), deny or block access to receive instructional services. In other words, this section prohibits any action that could degrade the quality of students’ instruction, with the goal of resuming or maintenance of classes.

– Section 14: It is prohibited to do anything (or to forget to do something) that would have the effect of preventing anyone (whether it’s a student, instructor, or professor) from having physical access to a location where a course is supposed to take place.

It is prohibited to have any assembly that COULD have the effect of blocking physical access to a location where a course is supposed to take place, at a teaching institution, whether inside the building or on the premises thereof. Further, these assemblies that could have the effect of preventing access to a teaching institution’s premises are completely forbidden within 50 meters of such an institution.

In other words, it is prohibited to have any assembly that COULD potentially block access within 50 meters of a teaching institution.

– Section 15: An employee’s association (union) is obliged to do everything it can to respect sections 10 and 11, and to not go against sections 13 and 14.

A student association is also obligated to do everything it can to prevent its membership from violating sections 13-14. The same concept applies for federations of associations (FEUQ-FECQ-CLASSÉ-TaCEQ), with its member associations and the students they, in turn, represent.

DIVISION III – PROVISIONS TO MAINTAIN PEACE, ORDER AND PUBLIC SECURITY

– Section 16: This part of the law is designed to regulate demonstrations taking place in public spaces. If a person, a group or an organisation organizes a demonstration of more than 50 people that takes place in a public space—a place accessible to the general public—it must provide, in writing, certain information, 8 hours prior to the event.

Information that must be given:
-Date
-Time
-Place
-The route of the demonstration (if applicable)
-The means of transit used to this end.

The police have the right to demand organizers modify the route or place if they judge that the place or the route may pose serious risks of public security. The organizer must then submit a new place or route and inform participants.

– Section 17: The organizers, regardless of their position, as well as a student association or a federation of student associations that participates in a demonstration (even without being organizers) must ensure that the demonstration conforms with the given requirements (see Section 16 above) and, if necessary, to police orders (again, see Section 16 above).

DIVISION IV – Administrative and Civil Measures
Assessments, premises and furniture.

– Section 18: As soon as a course (or any educational activity) is perturbed, the affected institution must report to the MELS all pertinent information in order to apply the law. For example, this may include:

The Circumstances
Relevant student groups
The student association that the students belong to
Any other information

Following this report, if the Minister of Education believes that this is the result of the failure (see Section 15 which obliges student associations to take ALL measures necessary to stop their members from preventing access to class) of a student association, the minister may require the institution to stop:

collection of fixed fees
providing an office
furniture
notice boards
display stands

This in spite of any law indicating otherwise, for example in the Accreditation Act and the Rand formula as it applies to student associations.

This paragraph defines the applicable sanctions. It elaborates that the withholding of fees applies is equivilent to one trimester, for each day that it is impossible to provide instructional services because of a student association’s failure or the impossibility to demonstrate that it was unreasonable.

– Section 19: The student members of an association that committed, according to the Minister of Education, a breach causing the perturbation of instructional services are not obligated to pay their student fees during the times of a sanction.

– Section 20: Following the principle of Section 18, except applying to federations of student associations. This means if the inability to hold classes is caused (according to the minister) by the failure of a federation of associations, the minister can mandate the withholding of fee-collection, in spite of any other provision (eg a contract), of the fee collection (or any other sum of money) by the student association to the federation. The end of paragraph one clarifies that this money cannot be transferred in any manner between the student association and the federation of student associations.

The same delays of sanction are applies as in Section 18, a trimester per day (part of the day) where there is the impossibility of providing instructional services.

– Section 21: Following the principle of Section 19, except between student associations and federations of student associations. A member association of a federation that the ministry sanctions in accordance with Section 20 is not obliged to pay its fees (or any other payment).

CIVIL RESPONSIBILITY

– Section 22: A student association, and the federation of student association it belongs to, that helps or induces its members to violate section 13 or 14 is solidarily liable (each party is responsible to play the entirety of the fine) for any damages caused to a third person by its members.

The same applies for an employee’s association whose members don’t comply with Sections 13 or 14.

This section is very troubling, as it contradicts the Common Law Tradition applied in Canada. Normally, it is the responsibility of the plaintiff to prove the validity of his or her request. Here, there is the reversal of the burden of proof. As such, it is the defendant’s responsibility to prove that she or he has done everything to avoid such situations and, in this sense they are not guilty. This is a complete break with Common law, as it applies in Quebec.

– Section 23: In the same vein as Section 22, but applying to employee’s associations and with Section 10 or 11, except if it can demonstrate that the violation was not part of a concerted action.

– Section 24: Section 24 defines “damage.” It includes any additional cost assumed or loss of earnings or revenue incurred by anyone (students, an institution, or the state).

– Section 25: This section allows anyone suffering damages resulting from the violation of sections 10, 11, 13 or 14 to bring forth a class action law suit.

DIVISION V – PENAL PROVISIONS

– Sections 26 to 29: Exceptionally offensive fines are put in place against those in violation with the law.

For the violation of the following sections: Section 3, the first paragraph of Section 4, Sections 5,7, the first paragraph of Section 10, Sections 11, 13, 14, 15, 16, 17.

$1,000 to $5,000

• Anyone in violation

$7,000 to $35,000

• Leader, employee, spokesperson or representative of a student association, of a federation of student associations
• Leader or representative of an institution
• Individual who organizes a demonstration
• Student associations
• Federation of associations
• Association of employees
• Institutions

$25,000 to $125,000

• Moral person, organism or group organizing a demonstration.

For the violation of Sections 18 and 33
$25,000 to $125,000

• Institutions

For the violation of Section 20
$25,000 to $125,000

• Student Associations

This section renders each person a gaurdian or enorcer of the law at risk of a massive fine, as “Anyone aiding or leading another person to commit a violation…” is liable.

Parents, professors, students, and even unrelated passerbys are all obliged to intervene and enforce the law, or risk immense fines.

– Section 30: This section requires the application of these fines in spite of section 233 of the Criminal Code that limits fines of minors at $100. A 17 year old college student must pay the fines in this law in their entirety, completely disregarding the law meant to protect minors in Quebec.

DIVISION VI – FINAL PROVISIONS

– Section 31: This section stipulates that all injunctions that haven’t been ordered prior to this laws passage are null and void, as are those concerning the provision of instructional services. The law serves the same effect, but applies across the board.

However, claims of contempt of the court, are not voided and may still be presented. Effectively, this represents a double standard for injunctions.

– Section 32: Some institutions may enter into an agreement with the student association and the professor’s union to continue instruction for students with injunctions. They must receive instructional services prior to the application of the law AND after. This affects only students with injunctions.

– Section 33: All information required by the MELS for the application of the law must be provided by the institutions in respect to the applicable delays.

– Section 34: The MELS is responsible for the application of this law, notwithstanding Division III which is the responsability of the Sécurité Publique.

– Section 35: Law will expire July 1st, 2013, or a date prior if the government desires.

– This is an explanation of each section, inclusive of amendments. Please note also that Minister Courchesne has been drafted over the past several weeks: this speaks volumes about the nature of the “negotiations” that took place, and leads us to believe that they were nothing but a build up for this law. Did Mme Beauchamp resign because she refused to implement this brutal attack on our democratic values or was it another prop to legitimize this Special Law?

Source: http://1625wontpass.ca/2012/05/law-78-explanation/

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