A Crack Opens for Free Speech on Campus

April 2020

The recent decision in UAlberta Pro-Life v. Governors of the University of Alberta, 2020 ABCA 1, offers a glimmer of hope that university administrators in Canada will curb their enthusiasm for limiting students’ expression on campus. The ruling is not as robust as SAFS members might hope, though; how it plays out in practice remains very much to be seen.

In 2015, the president of the University of Alberta [UA] made forceful public statements affirming the rights of members of the university community to speak on controversial issues, warning students who might try to obstruct others’ speech that such activities breach the Code of Student Behaviour [COSB]. Pro-Life is an official student club at UA. That year, they were granted permission to set up an anti-abortion display in a prominent spot on campus. On the appointed day, they were met with organized protesters who encircled the anti-abortion display with blankets and banners to block out the view of passers-by. The protesters also discouraged others from engaging with the Pro-Life students by shouting, chanting, and generally milling about in an unfriendly manner.

Campus security was called in to deal with the ruckus. Campus security told the protesters that they were violating the COSB, which prohibits disrupting the lawful speech of other members of the university community. Campus security also attempted to separate the two sides, asking the protesters to stand on the opposite side of a barrier they had erected. These efforts were not successful; the protesters ignored campus security and severely limited the Pro-Life students’ exercise of their free speech rights – as well as the rights of other members of the university community who wished to peacefully and respectfully engage with the Pro-Life group.

Some of the protesters openly boasted on their social media accounts about disrupting the anti-abortion event, and posted pictures of their activities. Pro-Life students used this incontrovertible evidence to register a complaint against the identifiable protesters with the UA discipline officer. After a perfunctory “investigation” in which nobody was even compelled to testify, the discipline officer declined to take any action. An appeal to the discipline officer’s superior was also dismissed.

In 2016, Pro-Life again sought permission to set up their anti-abortion display. This time, UA authorities advised them that permission to set up their display would be granted only if they paid a $17,500 “security fee” to cover the cost of dealing with the anticipated protesters. Needless to say, the students did not have $17,500. They appealed the demand for a security fee through the university bureaucracy, but were unsuccessful.

At this point, Pro-Life enlisted the assistance of the Justice Centre for Constitutional Freedoms [JCCF], which initiated a judicial review of the administration’s handling of this matter. (I am presently a member of the JCCF Board of Directors, but was not affiliated with JCCF at any time relevant to this case.) A judicial review is available for decisions that are made on the basis of authority delegated by the government. In this case, the university’s authority to manage activities on its campus is a product of an act of the Alberta legislature. The court was asked to review two specific decisions by UA authorities: (1) the decision of the discipline officer not to sanction the protesters in 2015 under the COSB; and (2) the university’s decision to impose a $17,500 security fee in 2016.

The trial judge declined to set aside either decision. That ruling was appealed. The unanimous judgment of the Alberta Court of Appeal, penned by Jack Watson, is the subject of this article. The good news is that a court of appeal has for the first time in Canadian jurisprudence affirmed what to SAFS readers will seem beyond obvious: that s. 2 of the Charter does indeed apply to student speech on a university campus. The bad news is that this newly affirmed Charter right was left bereft of any meaningful support by Watson’s limp response to the two specific challenges the students had raised.

Watson is scathingly dismissive of the students’ complaint that the UA did not punish the protesters who disrupted their 2015 event. In Watson’s view, the university president and campus security may say whatever they like about how the COSB applies to the case at hand, but their pronouncements have no force or effect because they have not been delegated the authority to make disciplinary decisions. Watson believes it is natural and unexceptionable for the university’s discipline officer to take a completely different view of the matter. Indeed, he chastises the students for suggesting that UA acted in bad faith for holding out that students’ free speech rights would be defended with concrete measures pursuant to a written policy, but then failed to act when called upon to do so.

Watson views the court’s job on a judicial review as simply making sure that the university’s own procedures were followed, and that the discipline officers’ decision was not manifestly in error. To that end, he quotes at length from the reasons given for dismissing Pro-Life’s internal appeal of the discipline officer’s decision. (The complainants are referred to throughout as “Go-Life” rather than “Pro-Life,” indicating how much care was taken in considering their appeal.) I have placed emphasis on the parts that require special attention:

“…the introduction to the COSB makes it clear that all parties, both the students in the Go-Life group and the protestors, have a right to free speech. Go-Life and the protestors disagreed on both the fundamental arguments being expressed and on the appropriate mechanisms for engaging in that debate. Both parties expressed their opinions. All of the participants were therefore engaging in acts which the COSB specifically permits – demonstrating and/or protesting. Free speech may be pursued aggressively and differences of opinion may be profound, loud, and emotional. Two or more groups who disagree may well compete for listeners’ attention and they are free to address both the other party’s reasoning and the way that they have presented their information.

“Free speech is not a clean process where people will always take turns and treat each other with deference. We have to expect that profound disagreements over controversial topics may be loud and vigorous. It follows that the University should tread lightly in applying disciplinary processes when people are engaging in a conflict of ideas. We respect the rights of all parties to offer information to an audience and then leave it to the audience to choose whether they will access it and how they will be affected by it. So long as they do not harm people or property, disrupt essential University business, or prevent other parties from speaking at all, the parties should be allowed to argue.

The protestors competed with Go-Life for attention but they did not prevent them from speaking. They did make it more difficult for people to see the displays and challenged people not to speak to the Go-Life volunteers but they did not prevent them from doing so, regardless of the rhetoric on both sides….

“My review of the evidence… suggests that the decision [of the discipline officer]... is reasonable and appropriate given the circumstances. I am therefore denying the appeal and, pursuant to Section 30.5.2(8) a, no further proceedings will be taken respecting this complaint under the COSB.”

Watson concludes:

“[98] There is nothing of bad faith or victim blaming in this. The Discipline Officer was entitled to be taken at his word that he considered the material provided. His statement of the standard of review that he applied to the Director’s decision is not challenged. His reasons are clear. It does not matter whether the chambers judge might have concluded that the actions of the counter protestors were more effective in blocking the presentation of Pro-Life than the Discipline Officer thought. Indeed, one might have thought that the gathering of crowds of persons to the location might have increased the size of the audience out of curiosity if for no other reason.”

(Ah, yes, the protesters might actually have helped the Pro-Life students get their case before more people! I have followed this episode from afar over the years, yet I still know nothing about the case the Pro-Life students wished to present at their event. All of the attention has been focused on the disruption, and what it means for free speech rights – not at all on the purported rights of the fetus. So, no; Watson’s speculation that the controversy might have helped get Pro-Life’s message out is insupportable and inappropriate of a judge.)

An old legal aphorism goes: “There is no right without a remedy.” If you have no recourse when your rights have been denied, impeded, diminished or delayed, you really don’t have any rights. But here, the discipline officer claims that as long as the Pro-Life students were not actually “prevented” from speaking “at all,” everything is fine. As long as there was no violence or property damage, we’re good to go! A “competition for attention” is exactly what the university is required to provide under the COSB. But this way of looking at the matter renders the Pro-Life students’ Charter right to free speech merely formal. It is difficult to fathom how three appeal-court justices could be enthused about such reasoning, when the Supreme Court of Canada has for decades insisted that Charter rights must be interpreted “broadly” and “liberally,” rather than merely formally. It is a commonplace, for example, that s. 15 equality rights must mean more than merely treating like cases alike; the Charter must be interpreted so as to require the government to promote “substantive equality.” Likewise, the Charter should also be interpreted so as promote substantive freedom of expression, rather than merely a shouting match.

The starting point for fleshing out a substantive right to freedom of expression must surely be that the organizers of an event get to decide who speaks at it, and what the rules of engagement are. It should not be open to interlopers to contest the “mechanisms for engaging in that debate.” Indeed, the discipline officer goes wrong at the very start of his decision by characterizing the ruckus as a “debate” or an “argument” between the Pro-Life group and the protesters. There was no “debate,” no “argument.” There was a hijacking of the Pro-Life display by protesters who did not seek prior permission from the UA to hold their protest at that time and place. I would have thought that the whole point of the application process is to prevent two groups trying to hold conflicting events at the same time and place; the university presumably would not have approved the protesters’ event had they bothered to follow the rules and ask for permission to stage their protest.

It is passing strange that in a 230-paragraph judgment, not a single word is said about the essential role of time, place, and manner regulations on speech. Such regulations are integral to a substantive conception of free speech worthy of Charter protection. An analogy to freedom of movement might assist understanding. Your right to freely swing your fist around ends at the tip of my nose. More generally, rules of the road are essential to freedom of movement, because in the absence of rules determining which side of the road to drive on, who has the right-of-way, and when and how to signal, all movement quickly comes to a crashing halt. Likewise, speech – including arguments and debates – must be conducted in an orderly manner for the right to free speech to mean anything substantive. Disciplining disruptors of speech, punishing hijackers of events, is not a separate after-thought to the right of free speech; it is as integral to the right of free speech as enforcement of the traffic laws is to freedom of movement.

The university manifestly failed its Charter obligation – as well as its contractual duty – to uphold the Pro-Life students’ freedom of speech. While it may be too late, four years on, to haul the protesters back before a disciplinary hearing, the Pro-Life students should have been entitled to a monetary remedy for the university’s dereliction of duty. A significant award to the students would have served both as a message to the university to do better next time, and as compensation for UA giving the Pro-Life students a less satisfactory educational experience than had been promised.

Watson’s ruling on the security fee decision is also disappointing, and not in keeping with a broad and liberal application of a student’s Charter right to freedom of expression. Once again, Watson slams the students for daring to suggest that the university was acting discriminatorily or in bad faith by requiring them, alone, to post a $17,500 security fee. He says there is no evidence in the record to support an accusation of bad faith. Oh, really? Let’s summarize UA’s argument:

On the one hand, UA says that the protesters at the 2015 event conducted themselves perfectly within their rights pursuant to the COSB: they shouted, they disrupted, they made it difficult if not impossible at times for Pro-Life to present their case; but they didn’t hurt anyone, they didn’t cause any property damage, they didn’t stop any essential university business. On the other hand, UA also claims that the terrible ruckus at the 2015 caused them to be concerned about the risk of injury and property damage at the proposed 2016 event. This justifies hiring a security force at a cost of $17,500. UA is arguing out of both sides of its mouth – which is the very definition of “bad faith.”

In the end, Watson decided that UA is entitled to require a security fee be posted for events they have reason to believe might become disruptive; he merely quibbles with the way UA actually calculated the fee they demanded from the Pro-Life students. Watson says, for example, that the students shouldn’t be responsible for 100% of the costs, only part of them. But he provides scant guidance on how to calculate security fees for future events. One anticipates that the security fee quantum will be litigated endlessly; or more likely, student groups will simply give up when faced with being hit with another arbitrary security fee. Litigation after the fact will not help students to get their events staged, even if they win sometimes – as in the present case. It’s a pyrrhic victory.

If students’ Charter right to freedom of expression is to have substance, courts must prohibit universities from requiring security fees for student events, at least where there is no large, paying audience to defray the cost. Universities are in the business of advancing ideas, so providing spaces for the safe and orderly exchange of ideas is essential to the proper functioning of a university. Vast sums of money are wasted on tangential and frivolous concerns in university administration these days, sums that could be redirected to facilitating the university’s core mission. It is another example of bad faith for UA to say they had no choice but to impose security fees on impecunious students. If UA were to enforce its own time, place, and manner regulations against uninvited disruptors of events, disruptions would soon cease and security would no longer be needed – or if needed, then minimal and payable in the first instance from general university revenues. If injury and property damage could be anticipated in extreme cases, the police should be called onto campus to handle it, as these are criminal offenses and it is the job of police to maintain the peace. Finally, universities should be expected to recover as much of their security costs as possible from those responsible for a ruckus, rather than from the innocent victims of an event hijacking.