Does the academic freedom bill add value?
In 2020, controversy arose over two uses of the “N-word” in an academic context: a lecturer at Concordia University quoted the title of a book by Vallières that included the word, and a University of Ottawa professor cited the word as an example of subversive reappropriation. After the University of Ottawa professor was suspended and then reinstated, over five hundred university and CEGEP professors signed an open letter denouncing what they saw as an attack on academic freedom.
The Quebec government responded by forming a scientific and technical commission to address the issue of academic freedom. The recommendations of this commission led to Bill 32, An Act respecting academic freedom in the university sector, which was tabled on April 6, 2022, by Danielle McCann, the Minister of Higher Education.
The Cloutier Report
The Report of the Independent Scientific and Technical Commission on the Recognition of Academic Freedom in the University Environment (hereafter, the “Cloutier Report”) was tabled in December 2021. In the introduction to the report, the Chairman of the Commission wrote that “freedom of thought, expression and discussion are the very foundations of academia and democracy. […] Throughout history, these freedoms have been fought for and won. They must now be reaffirmed and protected.” [Our translation] One of the report’s recommendations was to pass legislation to protect academic freedom by requiring each institution to have an academic freedom committee and policy. These recommendations are reflected in Bill 32.
The Commission also called on academic institutions to establish policies to protect staff from cyberbullying.
Bill 32 defines the right to academic freedom as “the right of every person to engage freely and without doctrinal, ideological or moral constraint in an activity through which the person contributes, in their field of activity, to carrying out the mission of an educational institution.” This right encompasses teaching, research, criticism and free participation in the activities of professional and academic organizations.1
Academic institutions will be required, within one year of the law’s coming into force, to adopt an academic freedom policy that provides for, among other things, the establishment of a council “whose main functions are to oversee the implementation of the policy, examine complaints about violations of the right to university academic freedom and, if applicable, make recommendations concerning such complaints or about any other matter relating to university academic freedom.”2 The policy must not prevent the discussion of potentially offensive ideas or topics during specified activities nor require that such content be preceded by a warning.3
Finally, Bill 32 gives the Minister the right to intervene to improve the university’s academic freedom policy. It also includes a mechanism for reporting to the Minister.4
While Bill 32 refers to the 1997 UNESCO report on academic freedom, it is by no means as far-reaching in its definition of the term. UNESCO defines academic freedom as “the right, without constriction by prescribed doctrine, to freedom of teaching and discussion, freedom in carrying out research and disseminating and publishing the results thereof, freedom to express freely their opinion about the institution or system in which they work, freedom from institutional censorship and freedom to participate in professional or representative academic bodies.”
In Quebec, the right to publicly criticize one’s employer is at odds with the duty of loyalty owed by employees. In addition, public criticism could conflict with the mechanisms provided for in the Act to facilitate the disclosure of wrongdoings relating to public bodies, to which universities are subject. We note that this component is not included in Bill 32.
Moreover, Bill 32 limits academic freedom to that which is exercised “in accordance with the standards of ethics and of scientific rigour generally recognized by the university sector and taking into account the rights of other members of the university community.” While this limitation may prevent the protection of some unscientific communications, it may also lead to enforcement difficulties in the event of internal disputes.
Conclusion: a bill of limited scope and uncertain added value
In Quebec, the collective agreements of university faculty routinely include provisions to protect their academic freedom. It is therefore surprising that the government would respond to an out-of-province situation by imposing a heavy administrative burden on academic institutions.
Furthermore, the concept of academic freedom is used in contexts far removed from the classroom or pure academic research. For example, academic freedom has been invoked to criticize the Governor General’s participation in a scientific conference (seen as an intrusion of political power into university activities), to justify investment decisions that would otherwise have been the responsibility of university governors, and in the context of harassment in the university environment. On the latter point, we note that Bill 32 does not take up the Cloutier Report’s recommendation regarding anti-cyberbullying, even though this has been a central issue in recent debates concerning academic freedom.
The Supreme Court of Canada has recognized academic freedom as vital to democracy and has called for great restraint on the part of governments with respect to university decisions, including those relating to the retention and promotion of staff.5 At first glance, it may seem peculiar to see universities being accountable to the government for matters of internal university management, especially since the Minister will have the power to intervene to add to a university’s policy.
When this bill was introduced, the Leader of the Official Opposition called for special consultations to be held before the bill’s adoption in principle. It is therefore likely that the bill will undergo some changes before it is finalized.
1 Bill 32, s. 3.
2 Bill 32, ss. 4 and 9.
3 Bill 32, s. 4.
4 Bill 32, s. 7.
5 Mckinney v. University of Guelph, 1990 CanLII 60 (SCC),  3 SCR 229.