Below is a brief summary and overview of the request for relief that was submitted earlier today, with the ultimate goal of having certain sections of “An Act to enable students to receive instruction from the postecondary institutions they attend,” or the special law, deemed null and void immediately. This action is a temporary measure to avoid irreperable damages while the case is brought through the standard legal venues, which take significantly more time.
Please note that this document is a summary meant to explain the request, is not legal advice, and does not hold any “legal weight.”
The claimants (comprised of the FEUQ, FECQ, and dozens of individuals and associations), wish to have certain provisions within the special law deemed void. These provisions represent for their respective members a violation of guaranteed rights, freedom of expression, freedom of association, and personal dignity.
Summarizes the broad outcry of the legal community against Law 78, including the Bar Association of Quebec, M. John Gomery (a retired Quebec Superior Court Judge).
Applicable Criteria for the request for relief:
In short, the claimants argue that the special law is unconstitutional, as it is in contradiction with Section 2 of the Canadian Charter, to Sections 3 and 4 of the Quebec Charter, and cannot be justified under Section 1 of the Canadian Charter nor Section 9.1 of the Quebec Charter.
Section 2 of the Canadian charter guarantees the right to “[…] (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; (c) freedom of peaceful assembly; and (d) freedom of association.” but is limited by Section 1, which suggests all rights are subject to “reasonable limits…. as can be demonstrably justified…”
Similarly, Section 3 of the Quebec Charter guarantee the right to liberty, opinion, expression, peaceful assembly and association, Section 4 guarantees the right to dignity, honour and reputation. Section 9.1 requires that these (an all freedoms) are exercised with respect to democratic values, public order, and the general well-being of Quebecers.
This sort of request for relief requires that three standards are met before the law is voided:
1. There must be a serious legal question at the basis to judge.
2. The claimants must be subject to irreparable damage if the
request is denied.
3. It must be determined who will suffer greater damages with
the approval or denial of the request, and the effects of the
granting or denial of the request on the public interest.
Seriousness of the legal question
The criteria of a “serious question” is only that the question is judged neither futile nor vicious, and then the second and third criteria must be evaluated.
In summary these are:
– Sections 16 and 17 contains restraints that are unnecessary, vague, impossible to implement, and accord troubling discretionary power to the police.
– Due to deficiencies in the Accreditation Act (which accords certain rights to student associations, not including mediation, negotiation, etc.), the only real medium of expression and advocacy are demonstrations.
– The provisions to stop the collection of student fees are contrary to the Accreditation Act, and threaten the ability of these organizations and their members to express themselves.
– This law is valid only until July 1st, 2013, an election year. Most provisions apply to students and non-students alike.
– As such, this law violates the freedom of peaceful assembly and the freedom of expression, and constitutes a “serious [legal] question.”
The claimants submit that irreparable damage includes the grave violation of fundamental rights.
– The damage caused by the cancellation or displacement of a demonstration cannot be undone or compensated for. In other words, the ultimate reversal of the Special Law does not account for and cannot compensate for the period the law was in effect.
– Similarly, excessive fines and prison time cannot be compensated for.
-This law is designed to bankrupt student associations and national student associations. This, also, cannot be undone.
Public Interest and the Balance of Harm
In the context of a constitutional challenge to a law, the court must analyze the “balance of harm,” in this instance the claimants must detail the harm done by the refusal of this injunction (eg the maintenance of the law), and the defendants (the MELS and Ministry of Public Security) must prove the harm done by the granting of an injunction.
– It is unnecessary to limit or qualify the freedom of expression and right to protest to achieve the (nominal) goal of allowing students to receive instruction at their post-secondary institutions.
– The Criminal Code already contains provisions for illegal gatherings and riots.
– Many provisions of this law, including particularly those to fine and (ultimately) destroy student associations are completely unrelated to the ostensible goal of allowing students to return to class.
– The claimants are subject to far more substantial harm by the maintenance of this law than the respondents, who still have legal avenues of recourse.