It looks good on paper: protect student mental health, fight against racism, and ensure that costs are transparent. But is it overreach?
Bill 166 Explained
In May of 2024, the Ontario government amended its Ministry of Training, Colleges and Universities Act with Bill 166 (the Strengthening Accountability and Student Supports Act). The Act applied changes that include the following:
1. Every college and university is required to have a student mental health policy that describes the programs, policies, services and supports available regarding student mental health.
2. Every college and university is required to have policies and rules to address and combat racism and hate, including but not limited to anti-Indigenous racism, anti-Black racism, antisemitism and Islamophobia.
3. The Minister is authorized to issue directives in relation to the information provided about the costs associated with attendance at the college or university.
The government states on its website that post-secondary institutions “should be an inclusive place for all. Students should feel safe when they are studying and know what supports are available if they need help. Students and their families should know the costs associated with attending a college or university, such as ancillary fees or educational material costs.”
At first glance, the amendments appear fair, reasonable, and in keeping with the government’s role in overseeing the publicly funded post-secondary system. Critics say the amendments went too far, that the government is imposing its will on universities and colleges under the guise of protecting students, and that the legislation is impacting Charter rights to protest.
The legislation appears to have been sparked by a perceived lack of action on the part of universities following protests that erupted in the wake of the Israel-Hamas conflict in October 2023. Bill 166 requires that post-secondary institutions take measures (underscoring the Bill’s content and policies) in the event of similar disruptions (encampments, violence, anti-Semitic or Islamophobic messaging). Additionally, post-secondary institutions must provide data on how student tuition is spent.
Opposition to Bill 166
Opposition organizations, led by professors at major universities, say a major obstacle is a lack of specificity; groups say the government identified anti-Black and anti-Indigenous racism, antisemitism and Islamophobia as areas of concern, while not addressing transphobia and misogyny. The Ontario government has publicly stated that the legislation is not a political imposition into the life of universities and colleges, does not threaten their independence, and is in line with the Human Rights Code.
Nicholas Russon and Kathleen Nash of law firm Stewart McKelvey, in Discovery: Atlantic Education & the Law, write that (traditionally) colleges and universities are incorporated under private statutes designed to allow them to be autonomous, self-governing and protected from political interference: “While universities receive government funding, they are not part of government. Rather, they are private, not-for-profit corporations that are granted the authority to govern their affairs through their unique statutes.”
This raises the possibility that government directives about campus-based behaviours may come into conflict with the Charter of Rights and Freedoms. According to the federal government’s Justice website, the Charter’s section on “Freedom of peaceful assembly” includes:
- the right to participate in peaceful demonstrations, protests, parades, meetings, picketing and other assemblies
- the right to demonstrate on public streets
- protection of the right to camp in a public park as part of protest activities
- the ability to wear masks during a peaceful demonstration
Not included:
- the protection of “a particular venue for assembly”
- riots and gatherings that seriously disturb the peace
- physically impeding or blockading lawful activities
In a May 2024 blog, University of Windsor law professor Richard Moon says Bill 166 presents an interesting juxtaposition of Charter rights and rights on campus. The Charter of Rights and Freedoms may regulate speech on campus, but “in Ontario the question of whether the Charter protects protest on university campuses may now have been settled by the provincial government’s recent enactment of Bill 166 … By involving itself in the regulation of campus speech, the government may have unwittingly elevated protest on campus, including encampments, to a constitutionally protected right.”
Interestingly, a 2020 judgment by the Alberta Court of Appeal regarding a University of Alberta pro-life demonstration on campus found that the Charter bound that university to defend the right to protest, confirming students’ constitutional rights.
As Moon notes, in the past, “the government of Ontario required all universities in the province to establish freedom of expression policies … which advanced a libertarian approach to expression rights. The province, it appears, was responding to concerns that students and staff with conservative views were being silenced on campus. These policies were to be reviewed by a government appointed body.”
Looking ahead
With Bill 166, the “province’s concern seems to have shifted from the protection of free expression to the limitation of expression (and other action) that is discriminatory [as in the case of discriminatory signage],” says Moon. “The consequence of the province’s decision to intervene in the regulation of speech on campus is that Ontario universities may now be viewed as carrying out government policy, and as bound by the Charter, when they regulate campus speech. The government may have unintentionally given to students a constitutional right to protest on campus, which may only be limited for substantial reasons.”
Looking for more information?
Looking for articles like this one to be delivered right to your inbox? SUBSCRIBE NOW!
DISCLAIMER The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.
About John Cooper
