Universities, the Charter and freedom of expression.

• Date: 01 July 2012
• Author: McKay-Panos, Linda

The law has always been quite complex about whether (or when) the Charter of Rights and Freedoms (Charter) applies to universities. Recently, there have been several cases involving freedom of expression (Charters. 2(b)) that have addressed this issue. Charter s. 32(1) says:

32. (1) This Charter applies

(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and

(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.

The issue is whether the term "legislature and government" includes universities (or other similar entities). A few Supreme Court of Canada (SCC) decisions provide some guidance. In RWDSA v Dolphin Delivery Ltd, [1986] 2 SCR 573, the SCC held that the Charter applies to "government action" and not to "private activity". Further, the Court implied that the Charter might apply to "creatures of Parliament and the Legislatures". Later, in McKinney v University of Guelph, [1990] 3 SCR 229, the SCC held that the fact that universities are incorporated by provincial statute or carry out a government objective does not make them part of the government. Justice La Forest held that the origins or purpose of the entity are not sufficient to render it subject to the Charter. This is especially the case if the university has autonomy to manage its own affairs. Courts need to look to the degree of involvement or influence of the government in a particular activity that has given rise to the Charter claim in order to determine whether the Charter applies. Finally, in Eldridge v British Columbia, [1997] 3 SCR 624, the SCC held that legislatures cannot escape their constitutional responsibilities under the Charter by delegating the implementation of their policies to...