In UAlberta Pro-Life v. Governors of the University of Alberta, 2020 ABCA 1, the Alberta Court of Appeal held that the University of Alberta was subject to s. 32 of the Canadian Charter of Rights and Freedoms in relation to its regulation of freedom of expression by students on university grounds.
Background
With permission from the university, UAlberta Pro-Life, a registered student group recognized by the university, organized a two-day anti-abortion event in an open area on campus. In response, many students, faculty, staff, and the general public protested Pro-Life’s event by creating noise and holding signs and banners blocking Pro-Life’s displays.
Members of Pro-Life asked the university to pursue disciplinary measures against the organizers and attendees of the counter-protest for violating the University Code of Student Behaviour. After investigation, the decision-makers of the university – first the Director of the University Protective Services and then on appeal, the Discipline Officer – refused to proceed with any disciplinary action. In the Discipline Officer’s decision, he denied the appeal and concluded that the director's decision not to proceed was reasonable and appropriate, since there was no violation of the Code and that the counter-protestors did not prevent Pro-Life's members from speaking or from anyone accessing Pro-Life’s materials.
Pro-Life later sought permission from the university to organize another similar event. After the university conducted a security check, it granted Pro-Life permission to host the event. This permission was contingent on the group paying the costs of security for the event at $17,500, with a $9,000 deposit, or holding the event in an easier to secure location. Pro-Life sought reconsideration of this decision. The Dean of Students ultimately upheld the condition imposing the security fee, finding that it was appropriate for Pro-Life to pay the costs since they "arose" from an event "designed to engage others in controversial matter."
Pro-Life and its executive members sought judicial review of both the university’s decision not to proceed with the complaint under the ĚŁcode and the university's decision to allocate security costs to Pro-Life.
Chambers judge’s decision
The chambers judge denied judicial review of both the complaint decision and the security costs decision.
Concerning the complaint decision, Pro-Life challenged the merits of the Discipline Officer’s decision, alleging it was unreasonable. The chambers judge accepted the university's argument that Pro-Life did not have standing to challenge the merits of the complaint decision; instead they had limited standing to challenge the procedural fairness of the appeal to the Discipline Officer. However, the chambers judge found the complaint decision was procedurally fair.
Second, Pro-Life argued that the university's decision to charge for security was unreasonable as it violated Pro-Life’s right to freedom of expression under the Charter. The chambers judge found that the university’s security costs decision was reasonable and well supported, primarily since the university considered and balanced freedom of expression with other competing interests as required by the Supreme Court of Canada’s decision DorĂ© v. Barreau du Quebec, 2012 SCC 12, such as the university’s obligation to ensure safety and security and the financial impact on the university. However, the chambers judge declined to determine whether the Charter applied to the exercise of speech by students at the university. She instead proceeded with her analysis on the basis that the university voluntarily assumed responsibility for considering freedom of expression in this case.
Pro-Life appealed the chambers judge’s rulings with respect to both the complaint decision and the security costs decision to the Alberta Court of Appeal.
Alberta Court of Appeal Decision
The Court of Appeal dismissed the appeal from the chambers judge’s ruling with respect to the complaint Decision. It found that there was no basis to conclude that Pro-Life had standing to challenge the merits of the university’s decision not to charge the counter-protestors, and that the chambers judge was entitled to find that the appeal process was not conducted in a ‘fundamentally unfair’ manner. The relevant provisions of the code did not make prosecution mandatory, but provided for exercises of discretion similar to those in other prosecutorial spheres. It could not be said that the university acted in bad faith or did not conduct the appeal process fairly merely because the outcome of the process was different than what Pro-Life sought.
With respect to the chambers judge’s ruling on the security costs decision, Pro-Life advanced two main grounds of appeal.
First, Pro-Life argued that the Charter applied to the exercise of speech by students at the university. Unlike the chambers judge, the Court of Appeal found it necessary to consider whether the Charter applied in these circumstances. The Court of Appeal concluded that it did, finding that the university’s regulation of freedom of expression by students on the campus should be considered a form of ‘governmental action’ under s. 32 of the Charter. The Court of Appeal reasoned that the education of students, largely by means of free expression, is the ‘core purpose’ of the university, both by the university’s own view and as given to it by government; it is also a goal for society as a whole. The physical grounds of the university, which are largely funded by government and private sector donors, are designed to encourage students to learn, debate and share ideas in a community space. Further, recognizing that the Charter applies to the exercise of freedom of expression by students on the university campus is a reinforcement of the rule of law, and does not threaten the ability of the university to maintain its independence or manage its own resources, particularly in light of the degree of deference available to the university under previous Supreme Court of Canada jurisprudence.
Second, Pro-Life asserted that it was unreasonable for the university to impose the security costs as a condition for Pro-Life to communicate with other students through the holding of an event and that such a restriction was unconstitutional because its effect was to suppress Pro-Life’s freedom of expression. Pro-Life also argued that the chambers judge simply found that the university’s position was reasonable without considering whether it was proportional or minimally infringing in a Charter context. The Court of Appeal agreed that the chambers judge erred in this respect. The onus of proving a limit on freedom of expression as ‘demonstrably justified in a free and democratic society’ should be on the state agent, even under administrative law. There is a ‘stringent standard’ of justification when a decision effectively amounts to a barrier to the exercise of a fundamental freedom. The chambers judge applied the wrong test for a section 1 limitation and failed to allocate the burden of proof correctly. With the appropriate onus, the university should have to explain why, with the university’s available assets, Pro-Life should be responsible for the entire security costs. The university should also bear the onus of demonstrating that it was approaching the matter on a basis of neutrality. Instead, the university appeared to impose on Pro-Life the exclusive responsibility of overcoming problems from the potential strong reaction that their expression was expected to generate.
Therefore, the Court of Appeal allowed the appeal from the chambers judge’s ruling with respect to the Security Costs Decision and set that ruling aside. However, the Court of Appeal also acknowledged that since both of the appeals touched on matters that were essentially moot, there was no practical remedy that would be useful or appropriate to grant beyond mere declaratory relief.
Takeaways
This is the first decision by a Court of Appeal to find that the Charter applies to universities’ dealings with the exercise of students’ freedom of expression on university grounds. Prior to this decision, the Courts of Appeal in Ontario, British Columbia and Saskatchewan had all held that the Charter did not apply to universities as long as their actions were not the implementation of a specific government policy or progress. It will be interesting to see whether this decision is an outlier or whether a new uniform approach on this issue will develop across Canada which may require further guidance from the Supreme Court of Canada.
Christopher Wirth is a Partner and Sakshi Chadha and Shamim Fattahi are Articling Students at Keel Cottrelle LLP.