Despite the significant outcry aroused by the content of Bill 32 on academic freedom in the university environment1everything suggests that the government wishes to adopt it before the end of the current parliamentary session, in mid-June, as it has just announced a day of hearings in the parliamentary committee on the subject on May 10 .
Posted at 2:00 p.m.
However, considering the extent of the problems affecting the first draft of this bill, it must be thoroughly overhauled and cannot be adopted on the sly before the next provincial election campaign.
Of all the problems undermining this bill, which is at odds with the global criteria found in the 1997 Recommendation of UNESCO on higher education, one of the most worrisome is without a doubt the introduction, within Quebec universities, of the problems associated with the obligation of loyalty in the public sector.
The omerta of the obligation of loyalty
As we have seen (and decried) in recent years, the establishment of a certain jurisprudential drift stemming from the obligation of loyalty2 gradually imposed itself in the rules governing labor relations in the public sector. In a nutshell, this case-law would prohibit State officials from publicly criticizing the institution for which they work, in the same way that it restricts the right of an employee of a multinational to damage the image of the ‘business.
This drift, which has been the subject of much controversy in recent years – just think of the cases of the agronomist Louis Robert or the teacher Kathya Dufault – constitutes a major obstacle to the ability of citizens to be informed of dysfunctions within certain public institutions3. For this reason, Ministers Roberge (Education) and McCann (then Minister of Health) promised to tackle, in 2018 and 2019, the source of this same drift, which they then described as “omerta » or « law of silence ».
Since these promises have not been followed by concrete actions on their part, this deplorable situation persists in these two sectors. Now that higher education is under her control, the height of irony would be that the same minister who broke her commitment to end the omerta in the health sector… is responsible for introducing it in universities!
However, this is exactly what the current version of the PL 32 could produce.
Academic freedom subject to the obligation of loyalty
Similar to the freedom of the press, which aims to protect institutions and individuals responsible for providing information of public interest to the population, academic freedom, to be effective, must offer protection to universities AND individual protection to academics. who work there.
While the first, institutional component must ensure that universities can carry out their mission of public interest without interference from the State or interest groups, the second must provide individual protection to academics against pressure which could be exercised against them, from outside or inside the institutions in which they work.
It is precisely to ensure this co-protection that, both the 1997 Recommendation of UNESCO than the bills proposed, in 2021, by the Quebec Federation of University Professors (FQPPU) and the report of the Cloutier commission on academic freedom4 clearly establish milestones to ensure the preponderance of academic freedom for any dispute concerning the teaching or research of professors and lecturers.
These milestones include the specific statement, in any definition of academic freedom, of the right of the holders of this freedom: “to express [leur] opinion on the institution or system within which [ils] working “ 5.
However, despite this very clear recommendation formulated by the three flagship documents that preceded the filing of Bill 32, the government chose not to include this fundamental passage in its definition of academic freedom; rather limiting it to the right of academics: “to criticize society, institutions, doctrines, dogmas and opinions; » [mes soulignés].
This deliberate exclusion is fraught with consequences, since it opens the door, without having to write it, to abuses of the obligation of loyalty within a bill which should nevertheless have the objective of keeping them out .
Since Quebec laws are interpreted in relation to each other, the right to criticize “institutions” will thus have to be modulated by virtue of the obligation of loyalty imposed by the Civil Code of Quebec. In other words: the net effect of adopting PL 32, in its current state, would have the effect of subjecting the scope of academic freedom to this famous obligation of loyalty.
A few days before the start of a parliamentary process which could lead to the rapid adoption of a law which, without substantial changes, would constitute a setback for the academic freedom of university students, it is important to recall forcefully that, by nature, any legislative intervention by a government on this issue can only be done with the utmost caution.
This caution requires, at a minimum, not playing the sorcerer’s apprentice by butchering the balanced recommendations of a commission which, precisely, had been set up to determine the legitimate measures that could be adopted to strengthen the protection of this fundamental freedom. And, it goes without saying, to give itself the time necessary to correct the many shortcomings of PL 32 which, in its current state, will create much greater harm than the one it wishes to tackle.
1. See in particular the resolution of the Federal Council of the FQPPU, unanimously adopted on April 22 and equally unanimously supported by the Federal Council of the Canadian Association of University Teachers (April 28, 2022), which denounces the unacceptable nature of PL 32 in its current form.
2. Imposed on all Quebec employees through article 2088 of the Civil Code of Quebec: “2088. The employee, in addition to being required to perform his work with prudence and diligence, must act with loyalty and honesty and not to make use of the information of a confidential nature that he obtains in the performance or on the occasion of his work. »
3. On this question in particular, see in particular: “The culture of silence and the duty of scale” by Louis-Philippe Lampron, published in the blogs of Contact May 11, 2020
4. Chaired by the former PQ Minister and current Vice-Rector for International Affairs of the University of Quebec at Chicoutimi, Alexandre Cloutier, the full title of the Commission is: Independent Scientific and Technical Commission on the Recognition of Academic Freedom in the university environment.
5. We use here the formula used by the authors of the Cloutier report in their recommendations regarding the definition of academic freedom (see pages vi, 45, 58 and 62 of this same report).