06/13/2012 02:52 EDT | Updated 08/13/2012 05:12 EDT

Bill 78: Quebec Had No Choice But To Use Emergency Legislation, Lawyer Argues

MONTREAL - Quebec government lawyers defended a controversial protest law that is being challenged in court this week as well as in the streets virtually every night.

The government said Wednesday that Bill 78 is in the public interest and should remain intact until it can be fully argued in court.

Lawyers representing student federations, unions and other groups are trying to get parts of Bill 78 — sections dealing with public protest — temporarily suspended.

Those same groups are also hoping to challenge the constitutionality of the entire law, later, in a separate case where they will argue that it violates basic rights.

But Quebec government lawyer Normand Lavoie told the judge hearing the case Wednesday that it's important to understand the context in which Bill 78 was enacted on May 18.

The province was dealing with increasingly wild protests and the rule of law was not being respected, Lavoie said. And while more than 40 court injunctions had been handed down to allow students back to class, most weren't being respected by protesters — some of whom formed picket lines outside schools.

"If the rule of law had been respected, would be here (in court) today?" Lavoie said. "I think not."

Lavoie notes that student protesters are now claiming they're the ones whose rights aren't being respected.

He says the law should remain as is until the broader case can be decided on its merits. Justice Francois Rolland, chief justice of Quebec Superior Court, heard two days of arguments before retiring to deliberate. A written decision will come as soon as possible, he told lawyers.

Incidentally, Rolland is the same judge who handed down many injunctions that weren't respected. In one of his rulings, he had urged the government to take action to end the unrest.

Not long after, the province introduced Bill 78, which also suspended the winter semester for institutions dealing with boycotting students. Classes are expected to resume in August for the one-third of students who are on declared strikes.

But since Bill 78 came into force on May 18, police across the province have never applied it. Its introduction only encouraged bigger protests, with more diverse crowds.

With the school calendar into the summer break, and with police officers generally using municipal bylaws to fine protesters, the provincial legislation has gone virtually ignored.

The people challenging the law say that proves it was not necessary in the first place, as police had the tools to act. All it does, critics say, is undermine civil liberties and threaten people with huge fines.

Bill 78 requires protesters to give police eight hours' notice and provide their itinerary. It also imposes extremely stiff fines on protesters who block schools.

A suspension of certain parts of the law is premature, Lavoie said. He argued the law doesn't prevent anyone from protesting; all it does is ask organizers to give police notice and gives authorities the ability to intervene if they feel there are risks, he said.

The right to protest is not an absolute right, Lavoie noted.

"The right to come together and protest doesn't mean we can do whatever we want in the public domain," Lavoie said.

The government argues that Bill 78 preserves other rights — like that of students who want to attend school. Lavoie disputes the idea that freedoms of expression and association are under attack.

Lavoie said that many of the labour unions that are supporting the students' legal actions have themselves been providing itineraries for union marches since 2010.

Quebec lawyers have also argued that similar laws governing protests exist elsewhere in Canada, and some are far stricter. Some require such things as insurance, permits or require people to provide notice that ranges from 48 hours to 90 days.

None of those rules fall under provincial laws. Rather, they are municipal bylaws that vary from city to city.

The nightly protest march in Montreal on Wednesday was declared illegal under a municipal bylaw. However, police allowed it to continue as long as it stayed peaceful. Police said two people were arrested and charges included assaulting a police officer.

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