Revisiting Charter Application to Universities

• Author: Franco Silletta
• Position: Is a third year law student at the University of Victoria
• Pages: 79-98

APPEAL VOLUME 20

n

79

ARTICLE

REVISITING CHARTER APPLICATION

TOUNIVERSITIES

Franco Silletta*

CITED: (2015) 20 Appeal 79

INTRODUCTION..................................................80

I. WHY IT MATTERSEXAMPLES OF RIGHTSINFRINGEMENT

ATCANADIAN UNIVERSITIES ...................................80

II. IN THE BEGINNINGEARLY CHARTER DECISIONS ...............81

A. McKinney v University of Guelph....................................81

B. Eldridge v British Columbia (AG) ...................................84

III. THE DEBATE CONTINUESDIVIDED JURISPRUDENCE ON

CHARTER APPLICATION.........................................86

A. A New Wrinkle—Recent Alberta Judgments nding Charter Application ....86

i. Pridgen v University Of Calgary (Court of Queen’s Bench) .............86

ii. R v Whatcott ................................................87

iii. Pridgen v University of Calgary (Court of Appeal) ....................87

iv. Wilson v University of Calgary ...................................89

B. e Same Old Story—Recent Decisions Distinguishing the

Alberta Judgments ..............................................90

i. Lobo v Carleton University......................................90

ii. Telfer v University of Western Ontario; AlGhaithy v University of Ottawa....91

iii. BC Civil Liberties Association v University of Victoria..................92

IV. PUTTING THE PIECES TOGETHERWHEN THE CHARTER

SHOULDBE FOUND TO APPLY ..................................92

A. Charter Application Factor 1—e Government Controls the Entity........93

B. Charter Application Factor 2—Statutory Authority .....................94

C. Charter Application Factor 3—Specic Governmental Objective...........95

CONCLUSIONTHE BENEFITS OF FREEDOM.......................97

* Franco Sillet ta is a third year law student at the Universi ty of Victoria. He will be ar ticling Smart

&Biggar in Vancouver. He would like to thank Mar y Anne Waldron for her supervisi on. The paper

was written in fall 2013 and later updated to includ e more recent cases for this publicatio n.

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APPEAL VOLUME 20

INTRODUCTION

Universities have long been considered bastions of ac ademic freedom—freedom to safely

study, research, and express in novative and even controversial opinions. However, as our

society has evolved —and with it our den itions of tolerance and accepta nce—many of

these freedoms are now simply ignored by u niversity governance. Often, a student whose

freedom of expression has been infringed by a university decision must appeal wit hin

the same university en gaging in the i nfringement or to a Human R ights Tribunal with

limited powers.1 Crucially, students in thi s position cannot invoke the broad protections

provided by the Canadian Chart er of Rights and Freedoms (t he “Charter”). 2 Followi ng

early Charter dec isions, courts have genera lly found that the Char ter has no application

to universities. However, in light of more recent decisions and t he modern realities of

universities, this t rend must be reviewed and t he Charter must be seen to now apply in

some contexts.

In order to show the importance of reconsidering Charter application, I rst draw

on examples of universities in fringing Chart er rights throughout Ca nada. Second, I

outline the early decisions of t he Supreme Court of Canada (“SCC ”) on the Charter’s

application to universities and sim ilar institut ions. ird, I examine recent decisions

that have brought new life to a rguments in support of the Charter’s application, and how

these cases h ave been treated by other court s. Finally, I tie together the principles th at

have been discusse d with reference to university governing legislation to identif y the

situations in which the Cha rter should be found to apply to universities across Canada.

PART I. WHY IT MATTERSEXAMPLES OF

RIGHTSINFRINGEMENT AT CANADIAN UNIVERSITIES

Recent events at the University of Ca lgary high light the importance of Cha rter application

to protect students’ freedom of expression from discriminatory prac tices. Since 2006 ,

students at the University of Calgary have par ticipated in an ongoing, peaceful, pro-life

protest. e students would form a large c ircle in a well-trodden area of campus and hold

graphic signs that likened abortion to genocide. Wh ile proving extremely oensive to

many students on campus, t hese displays fa ll within the protected ambit of freedom of

expression in the Charter.3 In 2007, students opposed to the demonstrations physically

blocked access to the protest a nd obstructed the d isplays with their own ba nners. e

university took no action to prevent the opposing g roup from inhibiting the protestors’

expression. e following yea r, the university’s legal depart ment demanded that the

protestors turn their sign s inwards, so that no passers-by cou ld see the signs. e students

refused these dem ands, stating t hat their protests would prove less eective if their

message could not be seen. In re sponse, the university charg ed the student protesters with

trespass and pena lized them under the universit y’s non-academic misconduct pol icy. e

trespassing ch arges were stayed by the Crown; however, on appeal, the university’s board

of directors upheld the non-academic mis conduct penalties.4

1 Mary Anne Waldron, Free to Beli eve: Rethinking Freedom of Conscience and Religio n in Canada

(Toronto: University of Toronto Press, 2013) at 17.

2 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to

the Canada Act 1982 (UK), 1982, c 11 [Charter].

3 See R v Spratt, 2008 BCCA 340 (available on CanLII), which held that “[t]he right to express

opposition to aborti on is a constitutionally protecte d right” at para 91.

4 Cameron Wilson et al, “ Brief of Argument”, online: Justice Centre for Con stitutional Freedoms

13/02/Wilson-Brief-Feb-2013-re-17-April-Special-

Application.pdf>.