Alberta Court of Appeal finds Charter directly applies to University’s handling of abortion protest

Decision shows unusual lack of deference to University administrative decision-making, says lawyer

Alberta Court of Appeal finds Charter directly applies to University’s handling of abortion protest
Daniel Michaluk is partner at Hicks Morley Hamilton Stewart Storie LLP, in Toronto.

In a case stemming from a campus demonstration against abortion, the Alberta Court of Appeal ruled the Charter of Rights and Freedoms applies directly to how the University of Alberta facilitates the exercise of freedom of expression on school property.

In 2015, the University of Alberta student group Pro-Life used the University’s public area, known as the Quad, to hold a demonstration against abortion. The group displayed large photographs of dismembered fetuses and was met by counter-protestors who used their own signs and banners to block Pro-Life’s placards from view. Group members filed a complaint against individual counter-protestors with the University, alleging breaches of the school’s University Code of Student Behaviour but the school opted for taking no disciplinary action against any of the counter-protestors. Later, when Pro-Life requested permission for another protest, the University responded with a condition that the group either give the school $17,500 to pay the cost of security or hold the event “in an indoor location like a classroom,” the Court of Appeal’s decision states. Pro-Life appealed the requirement to pay for security to the Dean of Students but the Dean upheld the condition.

Pro-Life took the denial of disciplinary action and the security-costs requirement to the courts. They argued the University was denying their exercise of free expression. But Justice Bonnie Bokenfohr of Alberta’s Court of Queen’s Bench denied judicial review on both issues.

In it’s decision, the Court of Appeal said that although the practical matters of the appeal are moot because there is no available remedy aside from declaratory relief, the issue remains a “live debate” among the university population and a similar situation is likely to arise in the future. The court affirmed the lower court’s decision on the complaint against counter protestors but saw the issue of the $17,500 condition differently.

Daniel Michaluk is partner at Hicks Morley Hamilton Stewart Storie LLP in Toronto with a practice that involves helping universities with risk and crisis management issues. Michaluk says, because the lower court set aside the question of whether the University was acting as government, it found as an administrative actor, the University only needed to “take appropriate account of Charter values in exercising discretion.” This is an “indirect” application of the Charter, he says. On that basis, the court found the University had weighed Charter rights and interests of others at the school appropriately.

But Court of Appeal opted to answer “the crucial question” of whether the University’s regulation of freedom of expression should be considered a form of governmental action. The court found the University’s actions did fall under s. 32 of the Charter, which states the Charter applies to Parliament, the government of Canada, provincial legislatures and all matters within their authority.

The court listed five reasons the action fell under s. 32 (at paragraph 148 here). The reasons included that education via free expression is “the core purpose” of a government-funded university; that university grounds are designed for the “central feature” of that core purpose, which is “the ability of students to learn and to debate and to share ideas”; that free expression on campus is a “visible reinforcement” of the Rule of Law and recognition the University is subject to s. 32 does no threaten its independence.

As a government actor, the University has a “stricter burden of justification” and instead of “taking appropriate account of Charter values,” the school must comply directly with the Charter, says Michaluk.

Michaluk says the decision is concerning for how it limits the ability of universities to govern themselves.

“It goes against the whole body of law that deals with universities and what they do. Normally, they are allowed to make decisions, autonomously, and any review by a court is subject to significant degree of deference,” he says.

The British Columbia Civil Liberties association intervened in the appeal, joining Pro-Life in the position that the Charter applies directly to the University.

Canadian Lawyer sought comment from the University of Alberta’s lawyers and spokesperson for the University Hallie Brodie responded, saying, "The University of Alberta will be reviewing the decision in detail and therefore reserves further comment at this time."

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