An Update On Freedom Of Expression & Charter Application To Universities

INTRODUCTION

Freedom of expression on campus is not a new issue, but it bubbled up as a hot topic in 2017.

Although the media may have moved on, the issue of freedom of expression on campus remains as complex and pressing as ever - and it's only a matter of time before the next controversy erupts. In the meantime, universities and colleges have the opportunity to reflect on how they should respond when confronted with situations where freedom of expression may be at issue. This article provides a high-level overview of freedom of expression as a constitutional right protected under the Canadian Charter of Rights and Freedoms, and what courts have said about the application of the Charter to universities.1 Of course, a one-size-fits-all article is impossible given the countless scenarios where freedom of expression—and alleged limits on freedom of expression—could arise in the university or college setting. The law reviewed here cannot be applied in a vacuum but must be analyzed in light of the nuances of each fact situation, and the institution's own policies and procedures. For that reason, readers are urged to contact Stewart McKelvey for assistance with applying the law to freedom of expression in specific situations.

CHARTER PROTECTION FOR FREEDOM OF EXPRESSION

"Freedom of expression" is more than an abstract concept. In Canada, it is a constitutional right, protected under section 2(b) of the Charter of Rights and Freedoms.

Where the Charter applies (which is discussed more below), the scope of section 2(b) protection is expansive. The Supreme Court of Canada has repeatedly said that any activity that conveys or attempts to convey meaning will be protected by section 2(b), except for violence or threats of violence, and subject to reasonable limits.

Section 2(b) can be used to challenge a particular law on the basis that the law infringes freedom of expression and should be struck down. For example, many Criminal Code offences related to obscenity, pornography, and hate speech have been challenged in this manner, sometimes successfully.

Section 2(b) arguments can also be made in more individualized ways. A student could allege that an administrative decision (e.g., to discipline them for a social media post) unjustifiably limited their freedom of expression so should be overturned. Courts in these cases sometimes refer to freedom of expression as a Charter "value" instead of a Charter "right" (even though this may not make a...