Alberta Case Applies Charter to Universities

From denied funding to pro-life student groups, to the removal of anti-apartheid posters, to the cancelled speech of a right-wing political commentator, many have come to question where free expression stands within the post-secondary environment. A recent Alberta court decision sheds some light on the matter – ultimately holding certain university operations accountable to the Charter of Rights and Freedoms, and more specifically, the right to freedom of expression and association. 


This case arose after two University of Calgary students created a public Facebook page dedicated to denouncing the quality of a professor.  The University claimed that the page’s content was defamatory in nature, and thus classified as non-academic conduct. As such, both students were placed on academic probation. 


Rebutting this probation before the court, the students claimed their Charter right of freedom of expression had been violated. The University countered, however, that as a non-government body, it is immune to such Charter guarantees.  


Although the irony of this immunity is not lost given universities are typically revered as a realm for free thought, the U of C was not off in its counter.  The Charter is only applicable to government entities.  Aside from a reliance on public funding, the management of university affairs is largely free from government intervention.  Post-secondary institutions are thus not seen as a government organ, and accordingly, past cases have ruled that universities are not accountable to Charter guarantees.


This decision speaks to the contrary, however, suggesting that at least in Alberta, there are certain realms within a university which are not Charter-free zones.  Specifically, the outcome implicates that students should not be prevented from voicing their opinion – albeit criticisms- of the education they receive.


The U of C has recently announced it will be appealing the decision, thus leaving the case’s ultimate impact in the hands of the appellate court.  Should the decision be upheld, however, it will at the very least help to clarify when and how the Charter applies to post-secondary institutions.  Moreover, it may provide legal legs to stand on for those student groups who represent controversial expressive content. 


The complete case can be read on CanLII 


Kaley Dodds, 1st Year Law Student, University of Victoria 

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