Regarding the Right to Education: Universities and the State of Emergency

November 13, 2021

The idea of “privilege” used by Prime Minister Trudeau, or that of “reward” used by Premier Legault, are not legal concepts.

Vaccinated persons cannot be granted privileges, nor can they be granted rewards. The imposition of such medieval, paternalistic, and infantilizing rules by our leaders has no place in a democratic society.

Working is not a privilege or a reward, nor is educating oneself and educating others, or moving freely, to name only a few of the rights that are now being severely infringed. The law does not recognize “privileges” or “rewards”. The law only recognizes the concept of “rights”. Canadian citizens have rights. The Canadian Constitution and provincial legislations provide broad protection for the rights of individuals and communities, and infringements of rights must be done within the limits authorized by the Canadian Constitution. Thus, no person or category of persons can be granted privileges or rewards in defiance of the constitutional rules that govern our country. The use of such terms runs counter to the rule of law, which can be defined as, “the institutional system in which public power is subject to the law, bound to respecting the hierarchy of norms, the separation of powers and fundamental rights. […] Any attempt to destabilize or distort [the rule of law] must be seen as an attempt to take society away from the democratic model. All the more so when fundamental principles are abolished.

But that is not all. It should be remembered that Canada is a signatory to most of the major international treaties, particularly the Universal Declaration of Human Rights and the International Covenant on Economic, Social, and Cultural Rights.

Although these instruments have not been incorporated into the Canadian Charter of Rights and Freedoms or into the provincial charters of rights, and although Canada showed great reluctance and even disinterest in these instruments when they were being prepared—much to the dismay of John P. Humphrey, a McGill professor leading the United Nations Human Rights Secretariat at the time of the drafting of the Declaration and a formidable contributor to this fundamental legal text—Canadian courts, through their broad and liberal interpretation of the Canadian Constitution and quasi-constitutional provincial instruments, do not hesitate to refer to them.

Thus, in addition to seriously undermining the rights enshrined in the Canadian Constitution, the health measures put in place are at odds with these international texts, recognized by the entire international community. Such disproportionate measures cannot be justified in a free and democratic society.

For example, Article 26 of the Universal Declaration of Human Rights, adopted by Canada in 1945, states in paragraphs 1 and 2 that:

1. “Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available; and higher education shall be equally accessible to all on the basis of merit.

2. Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. […]”

As for the International Covenant on Economic, Social and Cultural Rights, Article 6(1) states:

“The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right”.

As for Article 13 of the Covenant, it elaborates on the various principles affirmed in the Declaration with respect to the right to education.

The imposition of a vaccine or health passport in educational institutions, whether for the youngest, the adolescents or the adults, runs counter the right to education. A group of people cannot be categorically, completely, and permanently excluded from the precincts of such institutions solely based on a health choice which is their own.

The Role of Universities as Guardians of our Free and Democratic Society

The participation of universities in particular, through their administrations, professors, and students, in establishing such a discriminatory regime, is something that goes against their very raison d’être, their mission. Indeed, the university fulfills a specific role in a free and democratic society as an independent institution allowing teaching and research to be undertaken by anyone who wishes to do so, thus contributing to the self-reflection of society, and allowing for dialogue among different ideas. In this respect, universities enjoy a great deal of freedom in their functioning, the determination of curricula, the accreditation of professors, etc., and the academic freedom it advocates cannot be reconciled with the segregationist demands of current governments. Moreover, our universities, their professors and students have a duty to stand up against the establishment of a discriminatory regime based on personal health status.

On the Notion of “Emergency”

A State of Emergency cannot constitute a justification that would facilitate the possibility of infringing rights in a generalized manner. It is, by its etymology, the state of an urgent and therefore exceptional situation. We have been living for 18 months in this state of emergency; 18 months of exacerbated restrictions on freedom and surveillance of the population; of decisions taken behind closed doors; of increased police powers, which finally has nothing exceptional left. Yet, if there is a time in a democratic regime when the infringement of fundamental rights should be scrutinized and very methodically analyzed, particularly by the courts and within the civil society, it is when a state of emergency is proclaimed.

This is not to say that fundamental rights and freedoms are absolute. However, the state of emergency, justified by a health security imperative chanted everywhere in the media, at press conferences or in legislative forums, constitutes one, if not THE most effective means of avoiding the application of the rule of law, thus of restricting freedoms, while maintaining the appearance, but which ultimately only distorts the fundamental principles of a free and democratic society.