There is nothing in the law that allows the students to make the strike, but nothing, either, that prevents them. This legal vacuum leaves free course to multiple interpretations that the higher education Minister, Pierre Duchesne, promised to consider. The story may be good advice, suggest experts in law.
Doubts were expressed, with reason, if these avid students of spring had the right to strike. A legitimate question that has emerged that liked applications for injunctions, in April, and the liberal government, preferring the word “boycott”, has refused to recognise the legality of the use of the unlimited release to the student protest movement.
In an unstable climate who commanded to act swiftly, the courts responded favourably to the injunction requests from students who did not support the strike and demanded the right to attend their courses. Many judges have considered the right to strike as an individual right to boycott a course which did not confer on the associations the right to impose the choice of the majority, such as vote in general meetings.
This interpretation “clienteliste education” is improper, believes a group of professors from the Faculty of law at Laval University and members of the Panel in rights and freedoms (GEDEL). In an article they are about to be published in the review the books of law, Louis – Philippe Lampron and Christian Brunelle are escalated over time, considering necessary this historical perspective in order to understand why, this time, while the right to strike for the students had never been questioned by political and legal powers – or even the liberal Government of Jean Charest at the strike of 2005-It had doubted.
Of the preceding
“The gap has always existed, but the social consensus had never been problem. There was like a gentlemen’s agreement”, points out to duty Me Lampron, lawyer and Professor of law at the Université Laval. There were at least nine General strikes student in Quebec since the early 1960s and nobody had never hesitated to consider strikes, he added.
Looking for the spirit of the Act and in order to demonstrate the spirit of the legislature, researchers and searched in the archives, dating back even to the verbatim of the exchanges during the parliamentary debates in the National Assembly. They made surprising discoveries… resembling premonitory.
June 20, 1983, Claude Ryan, leader of the liberal party and the official opposition in the National Assembly of Quebec, urged his colleagues to recognize student associations the right to carry out any purpose that “its members want democratically give it”, in a way, he hoped, to close thus “door to injunctions and challenges of all kinds which will more disorder and instability they will bring solutions to the problem”.
Camille Laurin, Minister of Education, would have immediately suggested that the Bill 32, on the accreditation and financing of student associations created obligations without sanctions. “We made the bet that this law would be used more as a pedagogical tool, as an instrument of reconciliation to facilitate the settlement of the disputes. This law is so educational and non-punitive. »
Act 32 against the Labour Code
To decide on the legality of the student walkout, several legal specialists undertaken to compare the statutes of the student strike, next to the Bill 32, and strike of unionized employees, governed by the Labour Code. The interpretations are very mixed.
The almost all of the judges who had to rule on applications for an injunction ruled that a student could not enjoy the same rights as employees association. Justice Robert Mongeon, in Joseph v. Cégep Saint-Laurent, is categorical: “nowhere, can find powers granted to the Association that compare closely or from afar on the rights and powers granted to a trade union or to a bargaining unit under the Labour Code”, wrote in his judgment. “Students and their associations claim date a right to”strike”without controls, without limits and without supervision. This is called a wild-cat strike law. With respect, I believe that no act of Quebec allows such abuse, such a derailment. In contrast, labour laws mentor, limit, and mark the right to strike while providing for a means of escape through the negotiation of a collective agreement of work, of conciliation, mediation or even arbitration. »
Even if the comparison between the two is not perfect, Brunelle and LAU do not share this point of view. According to them, the only effect of accreditation by “student associations have of powers that can be compared – making necessary modifications, of course – those of associations of workers governed by the Labour Code,” they write in their article “freedom of expression in the context of crisis: the case of the student strike.
And even once, they rely on the history of the past 50 years to justify the right of students to the strike. “In Quebec, it seems to us that the phenomenon of student strikes has sufficiently marked, over the years, the relationship between the authorities (governmental, academic, College) and students to pass, somehow, in the manners. Opportunities to strike unlawful the use at this means of pressure were too many in the past, to not infer a certain tolerance of the State towards them, they point out.
Individual, collective right
What then of the right of the student who does not wish to make the strike as it was voted by the association of which he is a Member? In case Carrier v. Université de Sherbrooke, judge Gaétan Dumas compares the strike movement student to a boycott from a shop in superstores. According to him, an individual has quite the right to boycott a store, but it can prevent another buying in this same store, much less to block access.
According to Mr. Michel Filion, lawyer and author of two dictionaries of law, civil law, the contract that students with the educational institution takes precedence over the contract they have with their student association. “The students have a contract with the educational institution and this is the reason why they are in such an institution, and, incidentally, in the association. So the contract with the association and the decisions of the Assembly of the members do not rule out the contract with the establishment,”he wrote in a letter published in June last in journals of Quebecor.
Once again, Brunelle and LAU diverge and reject the words of Mr. Filion, believing that freedom of contract by civil law lacks a balance on any other right. For them, compare freedom of commercial expression and freedom of political expression is “a regrettable confusion”. “It is confusing to see with what indifference the collective representation system set up by the legislator is thus diverted, on behalf of a purely individual logic that trivializes the exercise of participatory democracy student.”
But the issue of the right to strike home: student associations wish to respect their democratically acquired right to strike, while students disagreed with the strike claim their right to attend their course. Who give reason? Brunelle and LAU rejected the individualistic vision. “As for the damage to be caused to the student who has no access date its course because of the strike by its student association and picketing that it provides as a result, what differ basically of the”collective”harm suffered by all of his colleagues faced with the same situation?”, they contend.