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 (Charter s. 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,  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,  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,  3 SCR 624, the SCC held that legislatures cannot escape their constitutional responsibilities under the Charter by delegating the implementation of their policies to private entities. Indeed, for the Charter to apply:
- the private entity in its entirety must be considered to be government; that is, based on the degree of control exercised over it by the government, it is clearly an organ of the government; or
- the particular activity must be considered to be “governmental”, e.g., through the implementation of a certain government program.
Thus, while universities as a whole are not organs of the government, they may be subject to the Charter if a particular activity is said to be “governmental”.
Recently, there have been cases involving freedom of expression at universities where the issues have included whether the university is subject to the Charter.
In Pridgen and Pridgen v University of Calgary, 2012 ABCA 139, the University of Calgary disciplined two students for posting comments on Facebook with regard to the instructor of a course taken by them in the Fall of 2007. The University had decided such comments were non-academic misconduct and imposed discipline on both students, including several months of academic probation. The students were successful on judicial review by Madam Justice Strekaf, who ruled that the University decision was unreasonable in law and also infringed Charter s. 2(b) (freedom of expression) and could not be saved by Charter s 1. Justice Strekaf also said that the University is “not a Charter-free zone.” Because the provision of post-secondary education is a specific objective of the Alberta legislatures, universities are acting as government agents in the delivery of post-secondary education under the Post-Secondary Learning Act, SA 2003, c P-19.5, which is a specific government policy.
The Alberta Court of Appeal unanimously upheld Justice Strefak’s finding that the disciplinary decision of the University was unreasonable under administrative law principles. However, two of the Appeal Justices held that it was unnecessary to consider the issue of the application of the Charter to universities.
In Lobo v Carleton University, 2012 ONSC 254, Justice Toscano Roccamo addressed an application to strike a statement of claim by anti-abortion activists that their Charter rights had been violated by Carleton University. Justice Toscano Roccamo struck the statement of claim and distinguished Pridgen (ABQB) stating (para 14):
… the Court made specific reference to the governing structure of the university in that case which involved significant government involvement. On this basis, the Court found the university was delivering a specific government program in partnership with the government. By contrast, the Carleton University Act, 1952 created an autonomous entity whose structure and governance is in no way prescribed by the government. Subsequent enactment of the Post‑secondary Education Choice and Excellence Act in no way derogates from that autonomy.
Thus, whether the Charter applies to a particular university or university activities may depend on the content and interpretation of the legislation that enacts that university.
In R v Whatcott, 2012 ABQB 231 William Whatcott (Whatcott), an anti-abortion and anti-gay activist, was banned from campus under the Alberta Trespass to Premises Act, RSA 2000 c T-7 (TPA). On July 25, 2008, Whatcott was arrested by campus security for trespassing, when he was posting anti-gay literature on campus. Calgary Police then charged Whatcott with an offence under the TPA.
After a trial, Judge Bascom of the Provincial Court of Alberta decided that Whatcott’s Charter right to freedom of expression (under s. 2(b)) had been violated. The activity that he found to be subject to the Charter was the University using the TPA to respond to a complaint about Whatcott’s flyers. Mr. Whatcott’s challenge was not to the legislation itself but to the actions of the University in applying the legislation. The trial judge found that the University’s activity had prevented an opportunity to participate in a learning opportunity, which created a direct connection between the University’s governmental mandate and the impugned activity. Thus, the Charter applied, and Judge Bascom stayed the proceedings against Mr. Whatcott. The Crown appealed that decision to the Alberta Court of Queen’s Bench.
The Crown put forward three grounds of appeal (para 7):
i. the trial judge erred at law in concluding that the Charter applied at all in the circumstances of this case;
ii. in the alternative, if the Charter did apply, the trial judge erred in finding Mr. Whatcott’s Charter rights had been infringed; and
iii. in the further alternative, if the Charter did apply in these circumstances and if Whatcott’s Charter rights had been infringed, then the trial judge erred in his application of section 1 of the Charter.
Court of Queen’s Bench Justice P. R. Jeffrey dismissed the appeal. He agreed with the trial judge’s finding that the Charter applied, and once he determined this, he went on to examine whether the Charter was violated in this scenario. First, Justice Jeffrey agreed with the trial judge that Whatcott’s distribution of flyers fell within freedom of expression as protected by Charter s. 2(b) (para 40). Second, he noted that campus security had used the trespass legislation to respond to an individual’s complaint about the content of the flyers. The trial judge was therefore correct in concluding that the effect of the enforcement of the provincial trespass legislation was to restrict Whatcott’s freedom of expression under the Charter (para 42).
Next, Justice Jeffrey analyzed whether the Charter infringement was nevertheless saved by Charter s. 1 as being reasonable and demonstrably justified in a free and democratic society. The trial judge had found that the university’s prevention of the distribution of flyers was not related to an objective that was pressing and substantial, and thus the University’s use of the trespass legislation could not be justified under Charter s. 1. Further, the trial judge concluded that the indefinite ban of Whatcott was excessive. Justice Jeffrey agreed, and added that the University’s use of handcuffs, its pat-down search and its imprisonment of Whatcott were all a disproportionate response to the peaceful distribution of flyers.
Thus, it would appear that legislative activities, such as those related to learning, the exchange of ideas and the advancement of knowledge (in Alberta), could provide the “governmental” nexus required to invoke the application of the Charter to the University. This could encompass expressive activities such as flyer distribution and other displays of material that some people may find offensive.