Anti-abortion security charge tossed by court
U of A wanted to bill group $17,500 for fencing and wages for guards, police
EDMONTON In a decision that could determine the limits of the “heckler’s veto” on campuses, Alberta’s top court Monday ruled against the University of Alberta’s decision to bill an anti-abortion group $17,500 in security costs.
“This decision is specific. It says on university grounds, students have a constitutional right to express themselves. Universities have to have a mind to that if they are going to regulate expression because they receive a mandate from the government,” said Jay Cameron, counsel for Ualberta Pro-life and litigation manager at the Justice Centre for Constitutional Freedoms.
Monday’s decision could have wide-reaching implications on how the Charter of Rights and Freedoms might apply to a decision to restrict students from demonstrating on campus.
The case dates back to 2015, when Ualberta Pro-life held an anti-abortion event with large photo displays showing developing and aborted fetuses. The rally, in the university’s busy 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.
In 2016, when Ualberta Pro-life applied for another two-day campus event with a stationary display, the university said it risked being disrupted by counter-protesters and demanded a $17,500 security fee to pay for fencing and the wages of security guards and police before the event could go ahead.
In a February 2016 letter, the university’s dean of students Robin Everall wrote that while the event was a “legitimate form of expression” it was nonetheless appropriate for the anti-abortion group to bear the costs since they “arise” from an event “designed to engage others in controversial matter,” according to the decision.
Unable to pay, the group cancelled the event and later called the decision “victim blaming.” Amberlee Nicol, the president of Ualberta Pro-life, and Cameron Wilson, the group’s treasurer, sued the university over two things: the decision not to charge counter-protesters with violating the student code, and the university’s move to charge the security fee.
The Alberta Court of Queen’s Bench ruled in favour of the university in October 2017. The students appealed the decision, and the British Columbia Civil Liberties Association intervened before the Alberta Court of Appeal in support of freedom of expression.
In Monday’s 2-1 decision, the court agreed that the security costs appeal would be allowed, but denied Ualberta Pro-life’s request for a judicial review over how the complaint process was handled by the university, including the decision to not take any disciplinary action against those who were implicated in the counter-demonstration. “There is a flavour of topic regulation in what the university’s decision-makers said here and in what the chambers judge upheld,” a written decision from Alberta Court of Appeals Justice Jack Watson said.
The university prioritized potential objectors over those expressing an unpopular opinion, he said: “While I do not agree that victim blaming is what is involved, there appears to be an error here by the university in imposing on Pro-life the exclusive burden of overcoming problems arising from the fact that their expression might attract an adverse response.”
The “significant” decision provides guidance for universities across the country in a heated free speech debate, and vindicates the anti-abortion club, Cameron said: “Universities have created an atmosphere for students where students have an expectation that they’re not going to hear or see anything that they disagree with, and if they do they are justified in acting like spoiled miscreants.”
The University of Alberta approved a new statement on freedom of expression on campus at its board of governors meeting in December, following direction from the provincial government to adopt policies in line with the Chicago Principles, which allows speakers, no matter how “unwelcome, disagreeable, or even deeply offensive,” to speak on campuses.
Many students on campuses across the province also expressed concern that the principles may give rise to increased hate speech and discrimination on campus. While laws protect against and limit hate speech, this case is about differing opinions, not hate speech, Cameron said.
The university did not indicate whether it would appeal the decision.