Injunctions May be a Merely Theoretical Victory

The Gazette Montreal Muise, Monique

4 mai 2012

Eric Milner, a Collège de Maisonneuve student with a days-old court injunction to have access to his school, was able to enter the building only yesterday. Several schools have remained closed in the face of student blockades despite having a legal mandate to open. Monique Muise asks what this says about our justice system.

As dawn broke over Montreal on Wednesday, a group of about 30 people slowly began assembling outside Collège de Maisonneuve on Sherbrooke St.

As they have done every day since Monday, they stood stone-faced and arms crossed, shoulder to shoulder in a large clump in front of the CEGEP’S main doors, blocking access to the classrooms and lecture halls inside. Some wore black clothing and scarves over their faces. Others donned ski goggles, so that even their eyes were obscured.

Their message was clear: No one gets through.

The protesters were there in direct defiance of an injunction issued by a Quebec Superior Court judge on behalf of 16 students a few days earlier that ordered the school’s administration to continue providing access to classes for those who say they are not participating in an ongoing strike. Those students were able to get into the building on Thursday following a meeting between administrators and the strikers, but the blockade of the building Wednesday morning was, simply put, illegal.

Still, no one was arrested. No one was charged, or even ticketed.

It was by no means an isolated event. Over the past several weeks, students at postsecondary institutions across Quebec have gone to court and asked for injunctions (court orders that prevent someone from performing a particular act or require them to perform a particular act) to compel their schools to keep classes running, ensuring that they don’t lose their semester. Many of those in- junctions have been issued, and the schools have dutifully announced that their doors would be open and their teachers ready to teach, only to backtrack when protesters turned up on their doorsteps. The chance of a violent confrontation is something administrators say they are simply not willing to risk.

So has the rule of law failed, or been circumvented somehow?

No, says Université de Montréal law professor Stéphane Beaulac, but the fact that the injunctions are being ignored so wilfully suggests that they may not have been appropriate in the first place.

“One of the tests followed in order to decide whether to grant an injunction is to evaluate the so-called balance of inconveniences,” Beaulac said. “You also need to take into account factors linked to the administration of justice.”

Essentially, he explained, before issuing an injunction a judge must take into account how likely it is that the order will be respected, and whether it can be enforced if it is not.

“In the present circumstances … we’ve seen that they’re really not enforceable, or certainly not easily enforceable.”

The police cannot intervene to break up the blockades unless a criminal act (a verbal threat, for example) has been committed. Instead, they have to wait for someone to go back in front of a judge and file a motion to find the door-blockers in contempt of court. One such motion was filed this week in Sherbrooke, and a decision is expected on Monday.

“In view of the facts presented to the court, the court may then order the police to apprehend the violators of the court order, to bring them before the court so that the judge can actually pronounce them in contempt of court,” Beaulac said.

This may seem convoluted, he acknowledged, but it works under normal circumstances. But what is happening in courtrooms and on campuses across the prov- ince right now, said Beaulac, is extremely abnormal and may start to shake public confidence in the justice system as a whole.

“We’re still too close to the trees … but I’d be surprised if the justice system and our rule-of-law liberal democracy will be seen as the winner in these episodes,” he said. “To a certain extent, the very essence of our democratic system is in part linked to the respect of different public authorities, including the judiciary.”

The outrage from the legal community, meanwhile, has been palpable.

On Wednesday, the Chief Justice of the Superior Court of Quebec, François Rolland, was quoted in La Presse as saying that the situation is similar to a hockey team continuing to play after a referee has blown the whistle. He even suggested that the province’s attorney-general, Jean-marc Fournier, should step in. Fournier refused.

Yvon Garneau, a Drummondville lawyer who acted as a legal adviser to a Uni- versité Laval student who sought an injunction so he could access his anthropology classes, said he is “surprised and astonished” by what he has witnessed over the last few weeks.

“I have never, ever seen injunctions not being respected to this point in Quebec, not even in the area of labour and unions,” he told The Gazette. “I think that right now, the police forces, the authorities at CEGEPS and the universities – really all of those who are involved in these orders – are not taking their responsibilities seriously at all. We’re in a situation where there is a tolerance, but that tolerance is illegal.”

Beaulac cautioned that the current turmoil “does not mean we’re going to have anarchy in Quebec tomorrow,” but it should serve as a lesson in the decades to come.

“A good system based on the rule of law is somewhat fragile,” he said. “This is all very troubling.”

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