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Free speech on campus is subject to the Charter — but only in Alberta

free speech

On January 6, 2020, the Court of Appeal of Alberta held, in UAlberta Pro-Life v. Governors of the University of Alberta,[1] that the Charter of Rights and Freedoms applies to how universities regulate their students’ expression on campus. The court’s judgment is only binding in Alberta, but its effects may be felt elsewhere, including in the provinces whose courts have, to date, declined to apply the Charter in these circumstances: Ontario, British Columbia, and Saskatchewan.

The Charter on university campuses before UAlberta Pro-Life

The Charter applies to “government”.[2] The Supreme Court of Canada held nearly three decades ago that universities are not “government” for Charter purposes in carrying out their day-to-day activities.[3] However, the Court left open the possibility that “[t]here may be situations in respect of specific activities where it can fairly be said that the decision is that of the government, or that government sufficiently partakes in the decision as to make it an act of government”.[4]

The Court has subsequently held that:

[A]n entity may be found to attract Charter scrutiny with respect to a particular activity that can be ascribed to government…. If the act is truly “governmental” in nature – for example, the implementation of a specific statutory scheme or a government program – the entity performing it will be subject to review under the Charter only in respect of that act, and not its other, private activities.[5]

Until the Court of Appeal of Alberta’s judgment in UAlberta Pro-Life, this jurisprudence has been helpful to universities in resisting the application of the Charter to their internal affairs. Courts repeatedly declined to apply the Charter to a university’s impugned actions when those actions did not constitute the implementation of government policies or programs by the university.[6]

Still, there had been hints that the jurisprudence might evolve. In one case, the Court of Appeal for British Columbia specifically commented on the absence of a legislative provision obliging universities to protect free speech on campus, such as the United Kingdom’s Education (No. 2) Act 1986, to justify the conclusion that university regulations on speech are not subject to Charter review. Section 43(1) of the U.K. legislation requires universities and colleges to “take such steps as are reasonably practicable to ensure that freedom of speech within the law is secured for members, students and employees of the establishment, and for visiting speakers”.[7] The B.C. court implicitly suggested that, if such legislation pertained to a B.C. university, the Charter might apply to how the university implemented the legislation.

In another case, meanwhile, one judge of the Court of Appeal of Alberta would have held that the exercise of a university’s power to discipline students must comply with the Charter’s guarantee of freedom of expression.[8] That judge could not muster a majority, however.

What the Alberta court decided in UAlberta Pro-Life

In UAlberta Pro-Life, the Court of Appeal of Alberta was asked to determine whether the Charter applied to the University of Alberta’s handling of a request by a student group to organize an anti-abortion event. The court held that it did.[9]

Before the court were two appeals:

  • The first appeal concerned UAlberta Pro-Life’s use of a public space on campus to hold an anti-abortion event in 2015. UAlberta Pro-Life contended that the organizers and attendees of a counter-demonstration should have been disciplined. It sought judicial review of the University’s decision not to discipline them. The chambers judge rejected the judicial review application, and UAlberta Pro-Life appealed.[10]
  • The second appeal related to a request by UAlberta Pro-Life to hold a second anti-abortion event. The University told the group that it would have to defray the cost of providing security for the event. UAlberta Pro-Life said the cost was prohibitive and, thus, the University’s decision denied the group’s (and its members’) exercise of the freedom of expression. It unsuccessfully sought judicial review, then appealed.[11]

The Court of Appeal dismissed the first appeal,[12] but allowed the second.[13] With respect to the first appeal, the Court of Appeal held that, as the complainant in the discipline matter, UAlberta Pro-Life did not have standing to challenge the merits of the University’s decision in the absence of procedural unfairness, which UAlberta Pro-Life had failed to establish.[14]

With respect to the second appeal, the Court of Appeal held that “the University’s regulation of freedom of expression by students on University grounds should be considered to be a form of governmental action” for the purposes of s. 32 of the Charter.[15] Moreover, the Court of Appeal held that, in dismissing UAlberta Pro-Life’s judicial review application, the chambers judge had “applied the wrong test, did not allocate the burden of proof correctly, and adopted misconceptions as to factors to be considered”,[16] and thus afforded insufficient protection to the freedom of expression guaranteed in s. 2(b) of the Charter.[17]

While the Court of Appeal set aside the chambers judge’s decision, it granted no other remedy. The court “venture[d] no opinion regarding the University’s ability to justify [a decision to require a student group to share the cost of security for an event] in the future assuming a complete record and the proper allocation of the burden of proof in the overall proportionality analysis”.[18]

Justice Watson (writing for the court on this point) provided five reasons why the University’s regulation of expression by students on university grounds should be considered to be a form of governmental action under s. 32 of the Charter:

  1. The education of students largely by means of free expression is the core purpose of the University dating from its beginnings and into the future. It is a responsibility given to the university by government for over a century under both statute and the Constitution Act, 1867. It is largely funded by government and by private sector donors who likewise support and adhere to the core purpose of the University. Education of students is a goal for society as a whole and the University is a means to that end, not a goal in itself.
  2. The education of students is the acknowledged core purpose of the University even by the University’s own view of its mandate and responsibility. The University recognizes that society of Alberta, Canada and the World benefits from higher education and its production of wisdom, innovation and associational harmony and peace. In a sense, education of a younger generation is the primary duty of the generations that came before. Again, the University is a method for the older generations to pass both knowledge and values down to the younger generations.
  3. The ability of students to learn and to debate and to share ideas is not only a central feature of the core purpose of the University, but also the grounds of the University are physically designed to ensure that the capacity of each student to learn, debate and share ideas is in a community space. This involves infrastructure and land holdings granted to the University and / or sustained by money from many sources. These resources of infrastructure and land holdings are, above all, designed to permit interaction, assemblies, for a [sic], and the ancient characteristics of educational exchange.
  4. Recognizing the Charter as applicable to the exercise of freedom of expression by students on the campuses of the University is a visible reinforcement of the great honour system which is the Rule of Law. The core values of human rights and freedoms, democracy, federalism, Constitutionalism, equality and respect for minority interests are continually reinforced and invigorated where it is apparent that there are no places where the government is present by proxy and yet the Charter writ does not run.
  5. The recognition of the University’s being subject to s[.] 32 of the Charter in relation to freedom of expression by students on University grounds does not threaten the ability of the University to maintain its independence or to uphold its academic standards or to manage its facilities and resources, notably in light of the degree of deference available to the University …. [19]

Justice Watson stated “the test for s[.] 32” requires “identify[ing] an area of government policy and objectives that the University can be said to be implementing for the state more broadly and not just for internal University objectives”.[20] Apparently, it was sufficient that “[t]he education of students largely by means of free expression …. is a responsibility given to the university by government for over a century under both statute and the Constitution Act, 1867”.[21]

Having held that the University’s decision to require UAlberta Pro-Life to share in the security costs for its proposed event was subject to Charter scrutiny, the Court of Appeal purported to apply the Doré/Loyola framework for judicial review of a discretionary administrative decision that engages a Charter-protected interest.[22] According to the majority, “the chambers judge did not consider whether the University’s decision minimally impaired Pro-Life’s Charter right to freedom of expression and, therefore, her analysis fell short of what was required”.[23] This was a fatal flaw because, as Justice Watson put it, “[a] decision that effectively amounts to a barrier to the exercise of a fundamental freedom should be subjected to a “stringent standard” of justification”.[24] Here, the University had not established, to the Court of Appeal’s satisfaction, that the impugned decision had affected UAlberta Pro-Life’s Charter right “as little as possible in light of the applicable statutory objectives”.[25]

The current state of the law

As noted above, UAlberta Pro-Life is inconsistent with the jurisprudence in Ontario, Saskatchewan, and British Columbia. Absent guidance from the Supreme Court of Canada, litigants in other jurisdictions will have to reckon with UAlberta Pro-Life in seeking to hold the line that the Charter does not apply to universities’ management of their internal affairs — including policies relating to on-campus events and security.

The leading Ontario case is Lobo v. Carleton University. There, the Court of Appeal for Ontario held that, “when the University books space for non-academic extra-curricular use, it is not implementing a specific government policy or program as contemplated in [the Supreme Court of Canada’s judgment in] Eldridge [v. British Columbia (Attorney General)]”.[26]

The B.C. Civil Liberties Association (the “BCCLA”), which intervened in UAlberta Pro-Life, argued that Lobo was distinguishable because Carleton University’s legislative history differs from the University of Alberta’s. The Alberta court neither expressly accepted nor expressly rejected the BCCLA’s submission. Instead, Justice Watson distinguished Lobo because the Court of Appeal for Ontario disposed of that case on a motion to strike (rather than after a hearing on the merits) and because, “[i]n any event, it is not binding here”.[27]

Ontario’s Divisional Court has more recently emphasized universities’ institutional autonomy, albeit outside the Charter context. The court stated in Canadian Federation of Students v. Ontario that “[t]he powers delegated to the governing bodies [of Ontario’s universities] under [applicable legislation] have the effect of granting universities autonomy over their governance and internal affairs, including the conduct of student activities”. This limits the Crown’s spending power, the court held, because the university legislation “‘occup[ies] the field’ when it comes to university governance, including student activities”.[28] The Alberta court did not comment on Canadian Federation of Students in the UAlberta Pro-Life decision.

In Saskatchewan, meanwhile, the Court of Queen’s Bench held in Yashcheshen v. University of Saskatchewan that a university policy of requiring law school applicants to submit an LSAT score was not subject to Charter scrutiny.[29] The court noted that The University of Saskatchewan Act gives the university “the exclusive powers to … formulate and implement its standards for admission and graduation”,[30] and thus “setting admission standards is left solely to the [university] and therefore cannot be seen as implementing a policy or program initiated by someone else”,[31] i.e., government. Accordingly, the Saskatchewan court held, “decisions establishing entrance standards are not governmental in nature nor can they be characterized as furthering a government program or policy”.[32]

The Court of Appeal of Alberta gave Yashcheshen short shrift; Justice Watson held that the Saskatchewan precedent “is directed to academic management and to student qualification for college entry and not to freedom of expression”.[33] Put differently, whether a university is “government” for the purpose of s. 32 of the Charter turns, at least in part, on the substance of what the university is regulating, and the constitutional interests that the regulation engages.

On this point, Alberta’s top court appears simply to have disagreed with British Columbia’s. As discussed above, the Court of Appeal for British Columbia held in BC Civil Liberties Association v. University of Victoria that, in the absence of legislation like the United Kingdom’s Education (No. 2) Act 1986, “[t]he government neither assumed nor retained any express responsibility for the provision of a public forum for free expression on university campuses”, and so “[t]here is no basis upon which it can be said on the evidence that when the University regulated the use of space on the campus it was implementing a government policy or program”.[34] The B.C. case, like UAlberta Pro-Life, arose out of a university decision concerning the use of campus space for anti-abortion events.

The Alberta court highlighted (without expressly accepting) the BCCLA’s submissions that, in relying on the B.C. case, the University sought to “give[] s[.] 32 of the Charter a pinched and technical reading (and thereby a narrowing and technical reading of freedom of expression)” and that the court should “adopt the view taken of the 1st Amendment of the United States Constitution that freedom of expression extends to ‘the campuses of state universities’”.[35] The Court of Appeal of Alberta seems to have accepted this suggestion implicitly, observing that “the grounds of the University”, including “infrastructure and land holdings granted to the University and / or sustained by money from many sources”, are “physically designed to ensure that the capacity of each student to learn, debate and share ideas is in a community space”.[36]

Implementing campus free speech policies may attract Charter scrutiny

On August 2018, Ontario’s Ministry of Training, Colleges and Universities announced that it would “require every publicly-assisted college and university to develop and publicly post its own free speech policy by January 1, 2019 that meets a minimum standard specified by the government”.[37] In December 2019, Alberta’s government followed suit, directing the province’s 26 post-secondary institutions to adopt similar free speech policies.[38]

Even before UAlberta Pro-Life, these campus free speech policies increased the risk that university decisions concerning student expression would be subject to Charter review. The Ontario and Alberta governments have arguably made campus “free speech” a matter of provincial government policy, not merely of internal university administration. Doing so may make it more difficult to avoid Charter scrutiny of decisions concerning students’ expressive activities, including organizing and participating in speaking events, and protesting those same events, on campus.

This will be all the more challenging after UAlberta Pro-Life, not only in Alberta (where the Court of Appeal’s decision is binding) but also in other jurisdictions, where it will merely be persuasive. Still, unless other provincial appellate courts follow the Court of Appeal of Alberta’s lead, or until the Supreme Court of Canada provides authoritative guidance, when and how the Canadian Charter of Rights and Freedoms applies to decisions about students’ speech on campus will depend on where in Canada those students study.

By Atrisha S. Lewis, Adam Goldenberg and Marco Fimiani

Case information

Citation: UAlberta Pro-Life v. Governors of the University of Alberta2020 ABCA 1

Court File No.: 1703-0283-AC

Date: January 6, 2020

[1] UAlberta Pro-Life v. Governors of the University of Alberta, 2020 ABCA 1.

[2] Canadian Charter of Rights and Freedoms, s. 32(1), Part 1 of the Constitution Act, 1982.

[3]McKinney v. University of Guelph, [1990] 3 S.C.R. 229, at pp. 273-74, per La Forest J.

[4] McKinneysupra note 3, at p. 274. Community colleges, by contrast, are more likely to be considered “government” for Charter purposes by virtue of their constituent legislation. See: Douglas/Kwantlen Faculty Association v. Douglas College, [1990] 3 S.C.R. 570, at pp. 579 and 584-85; Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211, at pp. 311-12.

[5] Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 at para. 44.

[6] See, e.g.: Lobo v. Carleton University, 2012 ONCA 498, at paras. 3-4; BC Civil Liberties Association v. University of Victoria, 2016 BCCA 162, at para. 30. See also: AlGhaithy v. University of Ottawa, 2012 ONSC 142, at para. 78; Telfer v. The University of Western Ontario, 2012 ONSC 1287 (Div. Ct.) at para. 61; Freeman-Maloy v. Marsden (2006), 79 O.R. (3d) 401 (C.A.), at para. 16.

[7] Education (No. 2) Act 1986, c. 61, s. 43(1), quoted in BC Civil Liberties Associationsupra note 6, at para. 32, see also Pridgen v. University of Calgary, 2012 ABCA 139, at para. 116, per Paperny J.A.

[8]Pridgensupra note 7, at para. 105, per Paperny J.A.. See also: Wilson v. University of Calgary, 2014 ABQB 190, at paras. 162-63.

[9] UAlbertasupra note 1, at para. 149, per Watson J.A.

[10] UAlbertasupra note 1, at paras. 4 and 23, per Watson J.A.

[11] UAlbertasupra note 1, at paras. 5 and 18, per Watson J.A.

[12] UAlbertasupra note 1, at para. 101, per Watson J.A., and para. 218, per Crighton J.A.

[13] UAlbertasupra note 1, at para. 215, per Watson J.A., and para. 222, per Crighton J.A.

[14] UAlbertasupra note 1, at paras. 43, 54, 62 and 98-99, per Watson J.A., and para. 219, per Crighton J.A.

[15] UAlbertasupra note 1, at para. 148, per Watson J.A., and para. 222, per Crighton J.A.

[16] UAlbertasupra note 1, at para. 215, per Watson J.A., and para. 229, per Crighton J.A.

[17] See: UAlbertasupra note 1, at para. 166, per Watson J.A.

[18] UAlbertasupra note 1, at para. 230, per Crighton J.A.

[19] UAlbertasupra note 1, at para. 148, per Watson J.A.

[20] UAlbertasupra note 1, at para. 139, per Watson J.A.

[21] UAlbertasupra note 1, at para. 148, per Watson J.A.

[22] See: Doré v. Barreau de Québec, 2012 SCC 12; Loyola High School v. Quebec (Attorney General), 2015 SCC 12. See also:Law Society of British Columbia v. Trinity Western University, 2018 SCC 32 [Trinity Western (B.C.)]; Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33.

[23] UAlbertasupra note 1, at para. 229, per Crighton J.A.

[24] UAlbertasupra note 1, at para. 207, per Watson J.A.

[25] UAlbertasupra note 1, at para. 165, per Watson J.A., quoting Trinity Western (B.C.), supra note 22, at para. 80 (quotation marks omitted), and Loyolasupra note 22, at para. 40.

[26] Lobosupra note 6, at para. 4, citing Eldridgesupra note 5.

[27] UAlbertasupra note 1, at para. 140-41, per Watson J.A.

[28] Canadian Federation of Students v. Ontario, 2019 ONSC 6658, at paras. 116-17. You can read our blog post about this decision here.

[29] Yashcheshen v. University of Saskatchewan, 2018 SKQB 57, at para. 24.

[30] Yashcheshensupra note 24, at para. 30, quoting The University of Saskatchewan Act, 1995, S.S. 1995, c. U-6.1, s. 6(1)(b).

[31] Yashcheshensupra note 24, at para. 32

[32] Yashcheshensupra note 24, at para. 34. The court distinguished a university’s decision-making regarding admission standards from its exercise of a statutory power to make and enforce by-laws, which is “akin to the powers of a municipality and therefore subject to Charter review”: ibid., at para. 29. See:R. v. Whatcott, 2002 SKQB 399, at para. 43.

[32] UAlbertasupra note 1, at para. 143, per Watson J.A.

[34] BC Civil Liberties Associationsupra note 6, at paras. 32-33.

[35] UAlbertasupra note 1, at para. 144, per Watson J.A., quoting Widmar v. Vincent (1981), 454 U.S. 263, at p. 274.

[36] UAlbertasupra note 1, at para. 148, per Watson J.A.

[37] Office of the Premier of Ontario, “Backgrounder: Upholding Free Speech on Ontario’s University and College Campuses” (Aug 30, 2018), online.

[38] Calgary Herald, “Calgary campuses adopt new, government-mandated free speech policies” (December 17, 2019), online.

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McCarthy Tétrault is a Canadian law firm that delivers integrated business law, litigation services, tax law, real property law, labour and employment law nationally and globally.McCarthy publishes a series of blogs to share information with companies to help them comply and manage their businesses. On the Inside Internal Controls blog we will share some of those blog posts sharing their expertise among others, in the areas of Competition/Anti-trust, Corporate and Commercial Law, Intellectual Property, Privacy, Environmental Law, Technology and Litigation. Read more here
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