Balancing freedom of expression on campus
"Show your work” is the classic admonition of instructors across the world, scrawled across math tests and law exams since time immemorial.
In administrative law, “show your work” also applies where an educational institution must balance competing interests – such as when a student group invites an incendiary speaker to campus, or otherwise wishes to use institutional spaces to express themselves in ways that may result in disruptions or safety issues.
In these cases, groups rely upon their freedom of expression, which, of course, refers to the right enshrined by Section 2(b) of the Canadian Charter of Rights and Freedoms. In the words of our Supreme Court, the freedom of expression ensures “that everyone can manifest their thoughts, opinions, beliefs, indeed all expressions of the heart and mind, however unpopular, distasteful or contrary to the mainstream.” Freedom of expression is not absolute; infringements can be justified if there are sufficient countervailing interests.
As the Charter (and the legal obligation to abide by freedom of expression) applies generally only to government and agents administering specific government programs, a common first question is whether an institution is bound by the Charter. In BC, institutions governed by the Colleges and Institutes Act are bound by the Charter, and institutions governed by the University Act are generally not.
However, the freedom of expression is an essential element of all academic life. Support for freedom of expression has therefore found its way into many official statements of educational institutions, including strategic and academic plans, academic calendars, policies, and collective agreements.
That fact was key in the recent decision of UAlberta Pro-Life v Governors of the University of Alberta, 2017 ABQB 610, where the court sidestepped the Charter applicability question entirely, since the University of Alberta (“University”) had “voluntarily assumed responsibility for considering freedom of expression in this instance” due to statements in its Code of Student Behaviour and statements by its president.
On this basis, the court proceeded with a judicial review of a University decision, using the standard of reasonableness that applies when administrative decisions affect Charter rights.
The central issue was then, whether the University had made a “reasonable” decision in approving an application by a pro-life student group to hold a demonstration on campus, but requiring the group to pay for security for the event.
The University was able to produce a thorough 8-page review of the prior year’s demonstration by the same group, and a careful consideration of the various hazards of another demonstration. The review demonstrated that the University weighed the freedom of expression of the demonstrators against the University’s statutory mandate to manage University property, and its duty to take reasonable care to ensure the reasonable safety of individuals on its campus.
The court ultimately found that the University’s decision was reasonable, even while noting that other reasonable alternatives existed, such as charging a lower security cost to account for the security issues partially caused by counter-protestors. Having found that the University had made a reasonable decision, the court held that it could not substitute its own views and impose another alternative on the parties.
This case demonstrates that when balancing interests, there are often numerous reasonable answers. However, by approaching the task with a thorough analysis, and documenting it, an institution is both able to make a reasonable decision, and to transparently defend that decision should the matter end up in court.
Note: The decision in UAlberta is currently under appeal to the Alberta Court of Appeal.
Brent Meckling and Michael Larsen are lawyers at Clark Wilson LLP, practising civil litigation.