Free Speech Matters, In Quebec And On Campus

January 2016

A presidential selection committee has unanimously approved the appointment of Jacques Frémont as the University of Ottawa’s 30th president and vice-chancellor, effective next July. Frémont will succeed Allan Rock, who has served in those roles since 2008.

On paper Frémont, an emeritus professor of the University of Montreal, is an impressive figure and quite a “catch” for any university. Over the past 30 years, he has held many distinguished positions at the U of M, including director of the Public Law Research Centre, dean of the faculty of law, as well as provost and vice-rector, academic affairs. He has a reputation as a leading expert in constitutional law.

But most relevant in any discussion of Frémont’s suitability for his new post is his present highly visible position as president of the Quebec Human Rights Commission. Frémont is the driver behind a new Quebec law — Bill 59 — that is not only contentious, both politically and legally, but raises troubling questions about the future of freedom of speech in the province.

Bill 59 assigns new powers to the Quebec Human Rights Commission (QHRC) to combat hate speech, as well as a variety of other provisions meant to protect against extremism by censoring speech that promotes “fear of the other.” Ominously, the bill would allow the QHRC to pursue websites that in its estimation describe and denounce Islamism. Article 6 would “give the QHRC the power to initiate legal proceedings before the Quebec Human Rights Tribunal without having to wait for complaints from the public.” Frémont explained that he planned to use the requested powers to sue those critical of certain ideas, “people who would write against … the Islamic religion … on a website or on a Facebook page.”

On its face, Bill 59 would seem to be an exercise in futility, as the Internet falls under federal jurisdiction. But as noted, Frémont is a constitutional expert and he enjoys a challenge. Last year at a University of Montreal conference, he told his audience that he sees the QHRC’s mandate as “provoking a social change” and “making the law.” “You will make the law with difficult cases, risky cases,” he stated.

When Bill 59 passes (it has been adopted in principle), there will doubtless be a charter challenge arguing that the law violates freedom of expression under Section 2(b). But victory cannot be assumed. The Supreme Court unanimously upheld provisions in the Saskatchewan Human Rights Code in the notorious Whatcott decision as a “reasonable limit” on freedom of expression. On the other hand, in a 1957 Supreme Court decision concerning a Quebec statute prohibiting communist propaganda, the court struck the statute down as beyond the scope of provincial power. So it could go either way.

While Bill 59 is concerning in itself, its inspiration is far more so. Frémont has admitted that he based the provisions of Bill 59 on UN Resolutions 16/18, a brainchild of the Organization of Islamic Cooperation (OIC), comprised of 56 UN member states plus the Palestinian Authority, which constitutes the single largest voting block in the UN. In 1990, the OIC rejected the UN

Declaration of Human Rights, which assumes that all men and women, and all religions, are equal, and in its place adopted the Cairo Declaration on Human Rights in Islam. This document asserts the superiority of Islam over other religions and takes its definition of freedom of speech from the confines of Shariah law, according to which any criticism of the Prophet Mohammad is considered blasphemy and prohibited.

In 2011, the OIC introduced Resolution 16/18, a more nuanced version of the Cairo Declaration. Usually UN resolutions are just political documents, but in the case of Resolution 16/18, it moved on to “implementation” via the “Istanbul Process,” a series of conferences promoting the OIC agenda. The result has been a continuing push toward the stifling of free expression that is critical of any Islam-related topic. And even though no country is obliged to adopt the OIC’s illiberal definitions of defamation, when the same resolutions are passed again and again in UN bodies, there is a risk that they will eventually be deemed “customary and international law.”

The OIC’s objective is to see Western countries draft legislation that would penalize criticism of Islam. Most European Union countries have done just that. And Jacques Frémont is doing just that in Quebec. Freedom of speech is already in grave peril on university campuses. We should not expect to see that situation improve any time soon at the University of Ottawa.