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. 


Read the January 2020 Issue

The CRA's Guidance on Journalism: Clarifying Tax Credits, QCJOs and RJOs
Advisory Committee on the Charitable Sector Holds December Meetings
Legislation Update
-   Provisions of Budget Implementation Act No. 1, 2019 Now In Force
-   Proposed Changes to Employee Stock Option Regime Delayed
-   2020 Budget Consultations in Ontario
-   Ontario Regulations under the Connecting Care Act, 2019
-   Alberta Senate Election Act
-   Nova Scotia's Plastic Bags Reduction Act
-   Yukon's New Liquor Act
Corporate Update
-   ONCA Coming into Force Delayed
-   Updated Policies on Corrections of Articles or a Certificate for Business and Not-for-Profit Corporations
-   Corporations Canada Makes Changes for Online Services to Not-for-Profits
-   Certain Amendments to Ontario's Co-operative Corporations Act in Force
-   New Brunswick's Cooperatives Act Proclaimed in Force
Voluntary Association's Constitution and By-Laws Found to be Contractual
Tax Court Decision on Split Receipting and Donative Intent Upheld on Appeal
Federal Court of Appeal Holds that Atheism is not a Religion
CRA Technical Interpretation Regarding Loanbacks by a Qualified Donee
CRA Technical Interpretation on Prescribed Rates and Undue Benefits
Termination Clause Found to be Void and Unenforceable by the Court of Appeal
The Federal Court Establishes the Test for a Site-blocking Order
Alberta Court of Appeal Rules that Charter Applies to Freedom of Expression by Students on University Campus
Anti-Terrorism/Money Laundering Update
-   Global Fragility Act of 2019
-   EU Renews its Terrorist List
-   OSFI Ceases Publishing Lists of Designated Persons
Charities Legislation & Commentary, 2020 Edition Now Available