Free Speech On Campus Is Subject To The Charter — But Only In Alberta

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...