The Power of Perspectives

The Canadian Bar Association

Anne Lévesque

The judicialization of public protest

April 21 2016 21 April 2016

This week, the Supreme Court of Canada will hear 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-Canada’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 will again be 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 the fact remains that Nadeau-Dubois was a human rights defender. 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.

CBA National Magazine covers legal trends and issues. Any opinions expressed are the author’s own.

Anne Levesque is a human rights lawyer based out of Ottawa. She was one of the lawyers representing the First Nations Child and Family Caring Society in its historic human rights complaint against Canada relating to its discriminatory conduct toward 163 000 First Nations children. She studied law in the French Common Law Program at the University of Ottawa and holds a Masters in International Human Rights Law from the University of Oxford.

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