Bastarache Report – Academic freedom and University of Ottawa

The judicious words in the Report of the Committee on Academic Freedom hardly suggest the tumult that led Jacques Frémont, president and vice-chancellor of the University of Ottawa (uOttawa), to call on retired Canadian Supreme Court justice Michel Bastarache, CC, QC, to lead an inquiry to define academic freedom.

In late September 2020, uOttawa was roiled by unrest after the student newspaper, The Fulcrum, reported that Professor Verushka Lieutenant-Duval used the n-word in a lecture about how some marginalised groups had re-appropriated what previously had been terms of derision, the paradigmatic example being ‘queer’ by gays and lesbians.

Student leaders condemned Lieutenant-Duval, as did the university’s administration, which suspended her (with pay) for three days. By contrast, citing academic freedom, several dozen law professors in the university’s civil law programme signed a letter supporting the professor.

Beyond the campus gates, Lieutenant-Duval was supported by the Canadian Association of University Teachers, by more than 550 professors around the country who signed a public letter denouncing what they called an attack on academic freedom, as well as by politicians in Quebec, even though uOttawa is in the province of Ontario.

“We felt that it was time to have a rational conversation on these issues [academic freedom] on campus,” explained Frémont, when asked why the inquiry was needed. “To have a sense of what the community had to say – as far from the media and social media as possible.”

In addition to the episode involving Lieutenant-Duval, Frémont told me, he called for the inquiry into academic freedom because of a controversy in March 2021. Law and medical Professor Amir Attaran used his private Twitter account to accuse Quebec of being “the Alabama of the North” after: “Two people of colour [were] killed by abuse in your hospitals.”

While Frémont distinguished between Attaran’s university duties and his private Twitter account, the university president told the leader of the (separatist) Parti Québécois, Paul St-Pierre Plamondon – which had demanded an apology – that freedom of expression was not a banquet where you get to choose which comments are acceptable.

The Boyce affair

The Bastarache Committee was the second in less than two years that Frémont struck to consider charges of racism on the uOttawa campus.

In June 2019, Jamal Boyce, a student in the conflict studies and human rights programme, was carded by campus police. In a video Boyce posted to Twitter, a campus security officer is seen threatening to arrest Boyce, who had been skateboarding, for trespass – and grabbing him by the arms and waist.

After Boyce was handcuffed, six security guards forced the student, who was then vice-president of academic affairs for the programme’s student association, “to sit on the busiest street on campus in full view of” scores of his peers and strangers walking by, he told The Fulcrum.

After the Ottawa Police arrived, Boyce was released without charge. “The experience let me know that black students are not members of the ‘community’,” he said.

On 1 October 2019, Frémont accepted the report that found uOttawa’s campus security had violated Boyce’s rights, saying in part: “I’m deeply sorry for the way you were treated and the humiliation you experienced.”

Different sides of the story

Whatever the merits of Professor Lieutenant-Duval’s claim that she used the n-word for the stated pedagogical purpose, student leaders at uOttawa pointed to the painful history and connotation of the word. “It’s very easy not to use the word,” Babacar Faye, who was then president of the student union, told The Globe and Mail.

Speaking less than five months after – and a few blocks from – where Prime Minister Justin Trudeau joined a Black Lives Matter protest at the foot of Parliament Hill, Faye continued: “We believe that the university should also take more action and responsibility with regards to the situation and address the wider issue of systemic racism and institutional discrimination at our university.”

The public letter from uOttawa’s civil lawyers, who teach Quebec’s civil law – and most of whom, like Lieutenant-Duval, are francophones – was not the only public statement.

Black, indigenous and other racialised faculty and staff condemned the faculty union for supporting Lieutenant-Duval under the aegis of academic freedom. Some 25 faculty and staff signed a letter that said in part: “Being prohibited from using racial slurs even in discussion about racism is not a violation of academic freedom.”

Pushed, perhaps, by the heavy coverage of the story in Quebec’s French media and claiming that, as the leader of the only French-speaking government in North America, he has a special duty to speak out in support of francophone professors, Premier Francois Legault broke the rule of political decorum against commenting on issues in another province.

In his characteristically blunt language, he said: “What’s happening in Ottawa is a significant blunder, which is worrisome,” before continuing: “It’s as if [uOttawa] has a censure police.”

Legault’s concerns were echoed by Quebec’s lieutenant governor as well as the leaders of the other parties in the National Assembly.

Dominique Anglade, leader of the Liberal Party of Quebec, the province’s official opposition, said: “We have to be able to be in an environment where people can talk about a word, explain what it means, the history behind it. And I think we need to protect this [freedom to examine] in our institutions.”

In her remarks, Anglade used the word nègres, which some linguists say does not have the same connotation as the n-word does in English. (It is worth noting that Legault’s government says that there is no systemic racial discrimination in Quebec.)

For his part, David Robinson, executive director of the Canadian Association of University Teachers, wrote to Frémont saying that, since Lieutenant-Duval’s example was clearly germane to the subject under discussion, she was protected by the principles of academic freedom.

“An institution of higher learning fails to fulfil its mission if it asserts the power to proscribe ideas, no matter how controversial, expressed in the classroom,” Robinson reminded uOttawa’s president.

Academic freedom in Canada

The central question the Bastarache Report wrestles with is what academic freedom means in the Canadian context.

While the report’s Appendix B contains a survey of how other institutions in Canada and other countries have defined academic freedom, these efforts play little role in the main part of the report. Neither does the experience of the United States where, since a Supreme Court decision in 1960, academic freedom has come under the umbrella of the First Amendment.

“European countries always refer to the US situation,” Frémont told University World News, donning his old law professor’s hat. “Because of the First Amendment, in the US, freedom of expression is as absolute as you can find anywhere around the world,” said Frémont who, before becoming president of uOttawa, had been dean of the school of law at Université de Montréal.

As befits a common law country, the Bastarache Report builds up its definition of academic freedom from a number of sources, including the Canadian Association of University Teachers policy statement on academic freedom.

Section 2 of this policy states: “Academic freedom includes the right, without restriction by prescribed doctrine, to freedom to teach and discuss.”

What legal protection there is for academic freedom in Canada comes, not from stately terms of constitution drafters, but rather from the work-a-day language of contracts. “The only legally valid source is a contract, making academic freedom a labour standard,” says the report.

Approximately 85% of Canadian universities have academic freedom in their collective agreements; another 7% have it in both their collective agreements and the university’s general policies; and 3% have it only in their policies.

The result of this is that most case law in Canada concerning academic freedom is found in cases dealing with tenure.

In a precedent-setting case that the Bastarache Report quotes, McKinney versus the University of Guelph (1990), the Canadian Supreme Court declared that: “Tenure provides the necessary academic freedom to allow free and fearless search for knowledge and the propagation of ideas.”

Since its adoption in 1982, the Canadian Charter of Rights and Freedoms has been cited by many countries as an alternative to the US Bill of Rights, with its protection via the Second Amendment of the right to “bear arms” and the First Amendment’s: “Congress shall make no law . . . abridging freedom of speech.” This makes any hate speech law constitutionally problematic.

The Canadian Constitution, as the Bastarache Report underlines, asserts the right to fundamental freedoms – “freedom of thought, belief, opinion and expression” – but allows “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.

Among those limits, the report notes, are “the prevention of hate that divides society” and “the prevention of harm that threatens vulnerable members of society”.

According to Frémont: “What the courts teach is that you have to balance the rights, liberties, freedoms and presence. So, it is much more relative here [in Canada].

“There is the principle of academic freedom, which is fundamental for any Canadian university. But, at the other end, we also have the [principles] of inclusion, of diversity and dignity” of the students and community that have to be protected.”

The Bastarache committee defines a breach of the principles of dignity and inclusion as being “intimidating, humiliating, dehumanising or dominating conduct, including the use of abusive or threatening language”.

Bastarache Report findings

Oddly, the main text of the Bastarache Report does not mention Lieutenant-Duval or the specifics of the complaint against her.

It leaves no doubt, however, that the former justice and the other five members of the committee – all of whom were drawn from uOttawa’s administration and faculty – concluded that Lieutenant-Duval’s use of the n-word was protected by academic freedom. The racial epithet was not directed toward any individual, nor was it gratuitous.

From the student submissions, the committee knew that black students were offended. However, the committee quoted with approval a uOttawa adviser, who wrote: “The perceived and subjective offence caused to some students in light of lack of animus by the lecturer is not an established human right in need of protection.”

In somewhat less bureaucratic language, the report states: “There is no right not to feel offended since academic freedom protects controversial and hurtful statements.”

It then goes on to assert that, in such cases, university officials must distinguish between “the concept (the citation) and its use in speech”. Usages adjudged to be racist or hateful, Bastarache wrote, “are not protected because they have no scientific or educational justification”.

Going forward

Frémont welcomed the report and promised to implement all of its recommendations.

The central one concerned the establishment of a new standing committee that will clarify academic freedom in practice and establish mechanisms that will set out conditions for filing complaints, assessment criteria and remedial measures, and will provide a public accountability procedure and beefed-up training for faculty members who often feel ill-equipped to address the issue.

By contrast, the student union found the report and recommendations wanting. “Of all parties to this report, academics should be fully aware of the fact that words matter,” the student union said in a statement.

In an interview with the Canadian Broadcasting Corporation (CBC), Josiane N’tchoreret-Mbiamany, a member of the Black Student Leaders Association at the University of Ottawa, was blunter: “It’s literally black trauma being put on display.”

In a video posted on CBC, she said: “It’s quite absurd that we’re [sic, they’re] literally fighting for the right to say a racial slur ... We’re combating and going back and forth, and going back and forth for the ability to say the complete uncensored word. When, in reality, an abbreviation as simple as the ‘n-word’ is completely understood.”

There is no need, she continued, to use the complete term that was used against people to oppress them. After noting that no one in the administration or faculty was affected by the word, she added: “Students aren’t asking for you to completely erase the word out of existence … because to erase the word completely is to erase the historical and significant history of our people.”

Rather, N’tchoreret-Mbiamany – who, after learning that one of her professors was among 34 who signed a public letter defending Lieutenant-Duval, no longer felt safe in the professor’s class and was removed from it – said: “What we’re trying to do is make the present and the future a safer place for people who used to be oppressed in the past.”

While the Canadian Association of University Teachers was pleased that the Bastarache Report exonerated Lieutenant-Duval, Robinson told University World News that it was less impressed with the call for the new standing committee that, he said, would seem to duplicate existing university structures.

Last words

During our interview, I asked Frémont what advice he would give a professor who was planning on teaching a class that deals with the way marginalised groups have re-appropriated words that were once used in derision?

According to the Bastarache Report, he said, neither censorship nor self-censorship is an option.

“But, what is very much an option, is to sit and think about how you present the issue and how the examples you give are going to be taught and need to be taught, but without insulting anyone and trying to be careful. If some words have to be used, certainly you must issue trigger warnings so that some people who might not be comfortable will be aware.”

He continued: “It’s not a matter of protecting students against the issues in these topics. It’s a matter of doing things properly. That’s why the report is suggesting that we give training to all faculty members and teaching staff.”

The training will include a counsellor or specialist with whom a professor can sit and discuss different ways of dealing with difficult topics, he says.