By: Anne Levesque
Cross-posted from the CBA's The National
Last
week, the Supreme Court of Canada heard an appeal relating to the contempt of court
order made against the Quebec student activist, Gabriel Nadeau-Dubois. The legal
dispute at issue arose in the context of the 2012 student protest which
received international attention. Lead by two student groups, l’Association pour une solidarité syndicale
étudiante and la Fédération étudiante
collègiale du Québec with broad support from the general
public, the movement
commonly referred to the ‘’Printemps érable’’ (Maple Spring) was triggered by former Premier Jean Charest’s
proposal to increase tuition by 75 per cent over the course of five years. Hundreds
of thousands of Quebecers from across the province took to the streets, wearing
le carré rouge and banging casseroles to protect what is widely
regarded in the province as a fundamentally core value: universally accessible
post-secondary education.
In
the course of the protest, another university student, Jean-François Morasse, obtained
an interlocutory injunction to enable him to cross the picket line and attend
class. When asked to comment on the injunction during a television interview on
RDI, Radio-Canda’s news network, Nadeau-Dubois expressed his disappointment regarding
the judicialization of what he considered to be a political protest and
stressed that students had the right to strike. The Quebec Superior Court found
Nadeau-Dubois guilty of contempt of court since his statement could be taken as
an invitation to disregard the court’s injunction and, accordingly, sentenced
him to community service. The decision was overturned by the Quebec Court of
Appeal which emphasized in obiter the
importance of respecting the freedom of expression in accordance with both the Canadian Charter of Rights and Freedoms
and the Quebec Charter of Human Rights
and Freedoms. This argument was again reiterated before the Supreme
Court by the two intervenors that were granted leave to make oral
submissions.
An
added consideration in this case is Nadeau-Dubois’ particular legal status as a
human rights defender. Under international law, all persons who act to promote
or protect their own human rights or those of others ought to be accorded a
heightened degree of protection from the State. To that end, there are specific
international instruments and mechanisms aimed at protecting human rights
defenders. By way of example, the 1998 UN Declaration on Human Rights Defenders provides, amongst other things, that
everyone has the right to freely publish and disseminate their views and
information on human rights and fundamental freedoms. Moreover, the UN Special Rapporteur on the situation
of human rights defenders
works to ensure that States afford appropriate protections to human rights
defenders. Regional human rights instruments, such as the European Union Guidelines on Human
Rights Defenders,
also urge States to ensure that those who act to promote and protect their
human rights or those of others are supported by the State and free from harm.
In
Canada and internationally, socio-economic rights are often seen as the ‘’poor
cousin’’ of civil and political rights. But they are human rights and those who
protect them deserve protection. The International Covenant on Economic,
Social and Cultural Rights
provides that states must protect and promote everyone’s rights to education. States
are also required to ensure that higher education is accessible to all and must
work toward the progressive realisation of free secondary and post-secondary
education. The Committee on Economic, Social and
Cultural Rights has
also commented that higher education must be culturally appropriate. In the
context of a province in which the French speaking majority was largely
excluded from post-secondary education for generations and the survival of the
language depends on one’s ability to study in one’s mother tongue, the
accessibility of higher education is all the more crucial. Though the demands
made by the student movement in Quebec in 2012 were articulated as politician
ones, they were in line with Canada’s international human rights obligations. As
such, Nadeau-Dubois was a human rights defender and his case ought to be
treated in accordance with relevant international human rights standards.
Canadian
courts must play their part in ensuring that those who have the courage to
speak out to protect our fundamental rights can do so freely, safely and
without fear. This is not just an issue of concern for citizens living under
repressive regimes. In recent years, many Canadians were shocked to learn that
Dr Cindy Blackstock, an internationally respected children’s rights advocate
who filed a human rights complaint against the government of Canada alleging that
it was racially discriminating against First Nations children, was being spied
on and monitored by nearly 200 government officials. While the Canadian Human
Rights Tribunal found that Canada had retaliated against Dr Blackstock and awarded her 20 000$ in damages,
it remains unclear whether the government surveillance continues to this day. Government
officials and lawyers have refused all requests to confirm that the conduct has
ceased. Likewise, as the spokesperson
for student movement in support of the right to accessible education,
Nadeau-Dubois faced personal attacks, frequent death threats and
cyber-bullying.
Canada
can boast having some of the world’s strongest constitutional and legislative
human rights protections. But those rights are weakened if we do not ensure
that our union leaders, academics, feminists, Indigenous activists, students,
environmentalists and other human rights defenders who seek to assert and
advance human rights in Canada are appropriately protected. It is in through
this lens that courts must see their duty to protect Nadeau-Dubois’ freedom of
expression.
