National Post (National Edition)
University free speech at Alberta’s top court
EDMONTON • Alberta’s top court will hear a case on Wednesday that could help determine the power of the “heckler’s veto” on campuses after a university handed a $17,500 security bill to students who wanted to hold an anti-abortion rally.
The fee was proposed after an earlier rally was disrupted by pro-choice counter-protesters.
In response, Amberlee Nicol, the president of UALberta Pro-life and Cameron Wilson, the group’s treasurer, sued the University of Alberta over what they see as a simple free-expression issue. After the student group lost in a lower court, they appealed to the Alberta Court of Appeal.
The university says the anti-abortion display was designed to provoke a response and that the security costs are reasonable, while UALberta Pro-life says the steep bill amounts to a “prohibition” on their speech.
“This is a terrifically important case for a number of reasons,” said Micheal Vonn, policy director for the British Columbia Civil Liberties Association, an intervener for the two student protesters.
“The university is penalizing not the people who … attempted to prevent the other people from speaking, but they’re going to penalize the people who spoke.”
In 2015, Ualberta ProLife held a rally featuring a 70-square-metre display with photographs showing developing and aborted fetuses. The rally, in the university’s quad, drew an organized response from faculty, staff and students, who descended on the anti-abortion students with their own banners and signs, blocking views of the displays.
While there were no reports of violence, police and university security intervened several times, according to court documents.
In response, Ualberta Pro-life filed a complaint with the school’s protective service, alleging the student code of conduct had been broken.
The university declined to proceed with the investigation — or to charge any of the counter-protesters. While that process was unfolding, Ualberta Pro-life applied in January 2016 to hold another rally. It was approved, but with a caveat: a $17,500 security bill to keep everybody safe. The antiabortion group sought a review, but the decision was final. To rally in the quad, they would have to cut a cheque.
Ualberta Pro-life responded by suing University of Alberta over two things: the decision not to charge protesters with violating the student code, and the security fee. In October 2017, the group lost.
Nicol and Wilson appealed the decision. Jay Cameron, a lawyer from the Justice Centre for Constitutional Freedoms who is representing the students, says the trial judge erred in her decision. The group should be able to challenge the university’s decision not to charge students; the student code of conduct creates rights that can be enforced against one another; and the university acted in bad faith, Cameron argues.
The courts should weigh in on whether or not there are Charter protections for speech on campus, the BCCLA says in its factum: “This issue is of substantial importance to the residents of Alberta, and the other provinces of Canada.”
While the Charter of Rights and Freedoms guarantees freedom of expression, university decisions are not always subject to the Charter because they aren’t, in all their functions, considered government. In other words, a decision that affects freedom of expression on a university campus isn’t analyzed by the courts as a Charter issue, but as an administrative issue.
The university is arguing that people who are upset by a protest cannot be expected to control themselves, Cameron said, adding that it’s unfair to make Ualberta ProLife pay for security.
“If it was some other issue, would that be justifiable?” Cameron said. “If it was women’s rights, if it was LGBTQ rights, if it was science?”
The University of Alberta declined to comment.