Alberta Court of Appeal Rules that Charter Applies to Freedom of Expression By Students on University Campus
January 2020 Charity & NFP Law Update
Jennifer M. Leddy and Terrance S. Carter
On January 6, 2020, the Alberta Court of Appeal (the “Court”) released its decision in UAlberta Pro-Life v Governors of the University of Alberta, which found that the Charter applies to how the University of Alberta (the “University”) sets conditions which affect the freedom of expression by its students on campus. This summary is only a very brief overview of a complicated decision with extensive reasons.
On March 3 and 4, 2015, a student association, UAlberta Pro-Life (“Pro-Life”), with the approval of the University, organized an on-campus demonstration. On both dates, the event attracted groups of counter-protestors, including University students, faculty, staff, and the general public, who objected to the Pro-Life event on the basis that it was “not conducive to maintaining ‘safe spaces’ on University campus.”
Pro-Life submitted a complaint to the University alleging that a number of individual counter-protestors were in breach of the University Code of Student Behaviour. However, after an internal investigation, the University decided not to take disciplinary action against any of the counter-protestors. As well, in early 2016, when Pro-Life requested permission for another demonstration, the University required Pro-Life to pay $17,500 for the cost of security, with $9,000 to be deposited in advance of the event, and suggested, in the alternative, that Pro-Life hold the event “in an indoor location like a classroom,” which would presumably reduce the level of security required.
After exhausting the University’s internal appeal channels, Pro-Life applied to the Alberta Court of Queen’s Bench for judicial review challenging both the decision not to take disciplinary action against the counter-protestors (the “Complaint Decision”) and the decision regarding the cost of security (the “Security Costs Decision”). The Alberta Court of Queen’s Bench dismissed the application with respect to both decisions.
The Court of Appeal dismissed the appeal with regard to the Complaint Decision. However, regarding the Security Costs Decision, the court held that the University’s regulation of freedom of expression of students on campus should be considered a form of “governmental action” subject to the Charter.
The court stated that the University was subject to the Charter because education by means of free expression has been the core purpose of the University since it was established by the government and the grounds of the University are physically designed to ensure that students learn, debate and share ideas in a community space that is “hospitable to a pursuit of the truth about all things without a prescribed pre-definition of truth before the pursuit begins.”
Recognizing the degree of deference available to the University under the frameworks of “proportionality” and “reasonableness” established by the Supreme Court of Canada in its decisions in Dore, Loyola High School and Trinity Western University, the Court stated that this decision “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.”
The University alleged that the content of the expression of Pro-Life was “designed to be controversial”, “evoke a vigorous and emotional response”, and sought “public controversy”. However, recognizing that the tone and content of the expression is relevant in determining whether any conditions imposed constitute a reasonable and proportional limitation, the Court held that this consideration could not justify a complete suppression of the event as would be the case with the cost barrier imposed in this situation. The Court also suggested that, as a matter of reasonable and proportional limitation, the University could propose alternative pamphlets or displays that would be less provoking as a condition of the University providing appropriate security for the event. This was “not to suggest any specific answer for this situation if something like it comes up again. It is to suggest that if the University had the burden of establishing the limitation, it would have a full opportunity to do so.”
It is important to note that this decision extends only to the University’s regulation of freedom of expression of students on its grounds, which should be considered a form of “governmental action” subject to the Charter. The Court did not decide that all of the University’s activities are subject to the Charter. In addition, the judgment is only binding in Alberta.
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