Academic Freedom Act | The omerta in college?

Despite the considerable outrage aroused by the content of Bill 32 on academic freedom in the university environment1everything indicates that the government wants to adopt it before the end of the current parliamentary session, in mid-June, which has just announced a day of hearings in the parliamentary committee on the subject on 10 May.

Posted at 2:00 PM

Louis-Philippe Lampron

Louis-Philippe Lampron
Professor, Faculty of Law, Université Laval

However, given the magnitude of the issues facing the first draft of this bill, it will require major overhaul and cannot be secretly passed before the next provincial election campaign.

Of all the problems that undermine this bill, which is at odds with the global criteria in the 1997 Recommendation of UNESCO on higher education, one of the most worrying is undoubtedly 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 condemned) in recent years, the emergence of a certain jurisprudential drift arising from the obligation of loyalty2 gradually intruded on industrial relations rules in the public sector. En quelques mots, cette jurisprudence interdirait aux agents de l’État de critiquer publiquement l’institution pour laquelle ils travaillent, de la même manière qu’elle restreint le droit d’un salarié d’une multinationale de nuire à l’image de l ‘company.

This drift, which has been the subject of much controversy in recent years – consider the cases of the agronomist Louis Robert or the teacher Kathya Dufault – constitutes a major obstacle to citizens’ ability to be informed about dysfunctions within certain public institutions.3† For this reason, in 2018 and 2019, Ministers Roberge (Education) and McCann (then Secretary of Health) pledged to address the source of the 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 irony would be that the same minister who broke her promise to end omerta in the health sector… is responsible for introducing it to universities!

However, this is exactly what the current version of the PL 32 could produce.

Academic freedom subject to the obligation of loyalty

Like freedom of the press, which aims to protect institutions and individuals responsible for providing information of general interest to the population, academic freedom, to be effective, must protect universities AND individual protections to academics working there. .

While the first, institutional component, should ensure that universities can carry out their public interest mission without interference from the state or interest groups, the second should provide academic protection for academics from pressures that could be exerted on them, from outside or within the institutions. in which they work.

Precisely to guarantee this co-protection, 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 establish clear milestones to ensure the preponderance of academic freedom for any dispute related to the teaching or research of professors and lecturers.

These milestones include the specific declaration, in any definition of academic freedom, of the right of the holders of this freedom: “to express [leur] assessment of the institution or system within which: [ils] to work “ 5

Despite this very clear recommendation made by the three flagship documents that preceded the billing of Bill 32, the government has chosen not to include this fundamental passage in its definition of academic freedom; rather limiting to the right of academics: “to criticize society, institutions, doctrines, dogmas and opinions; † [mes soulignés]†

This deliberate exclusion has grave consequences, as it opens the door, without having to write it, to the excesses of the obligation of loyalty within a bill which must nevertheless aim to keep them away.

As Quebec’s laws are interpreted in relation to each other, the right to criticize “institutions” will thus have to be modulated according to the obligation of loyalty imposed by the Quebec Civil Code. In other words, the net effect of the introduction of PL 32, in its current state, is 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 that could lead to the swift adoption of a law which, without substantial amendments, would be a setback for the academic freedom of university students, it is important to strongly recall that, from naturally, any legislative intervention by any government in this matter can only be done with the utmost prudence.

At the very least, this caution requires that we do not play the sorcerer’s apprentice by slaughtering the balanced recommendations of a committee set up precisely to determine what legitimate measures could be taken to strengthen the protection of this fundamental freedom. And it goes without saying that he must give himself the time it takes to correct the many shortcomings of PL 32, which in its current state will cause far greater damage than the one who wants to address it.

1. See in particular the resolution of the Federal Council of the FQPPU, unanimously adopted on April 22, and also unanimously supported by the Federal Council of the Canadian Association of University Teachers (April 28, 2022), in which the unacceptable nature of PL 32 is denounced in its present form.

2. Imposed on all Quebec employees by Article 2088 of the Quebec Civil Code: “2088. The employee must not only perform his work with prudence and diligence, but also act with loyalty and honesty and not use the information of confidential nature that he acquires during the performance or on the occasion of his work. »

3. On this question, 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 Minister of PQ and the current Vice-Rector for International Affairs of the University of Quebec in Chicoutimi, Alexandre Cloutier, the full title of the committee is: Independent Scientific and Technical Commission for 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 on the definition of academic freedom (see pages vi, 45, 58 and 62 of the same report).

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