Campus a free speech zone: Alberta court
Victory for abortion foes over security fee
EDMONTON • Alberta’s top court has concluded that students have Charter-protected free expression rights on campus, in a ruling related to a $17,500 security fee a student group would have had to pay to hold an anti-abortion rally at the University of Alberta.
“There has long been confusion about the status of universities — specifically, whether they count as ‘government’ for the purpose of the Charter — and (Monday’s) decision helps push this issue in the proper direction, at least in the free-expression context,” said Emmett Macfarlane, a constitutional law expert at the University of Waterloo, in an email.
“Other courts have not found that before,” said Emily Lapper, senior litigation counsel with the B.C. Civil Liberties Association, which intervened in the U of A case. “That’s a big deal.”
Macfarlane said the court ruling “also serves as a warning to universities across Canada that it may be unacceptable to use ‘security costs’ as cover to dodge these ‘free-speech controversies.’ ”
“Although the appellants did not receive a meaningful remedy for this breach, other universities should now be put on alert that they may have constitutional rights obligations in the free-speech context and that shutting down expressive activity by using potential security costs as an excuse may not fly,” Macfarlane said.
The case dates back to 2015, when UAlberta ProLife held a rally in the University of Alberta’s quad, featuring a 700-square-foot display that showed images of aborted fetuses. Faculty, staff and students held a counter-protest, with their own sloganeering, and blocked the view of the anti-abortion rally.
While there were no reports of violence, court documents said police and university security intervened at various times.
In response, UAlberta Pro-Life complained to the school’s protective service, saying the counter-protesters had broken the student code of conduct; the university investigated, but then dropped it. No charges were laid.
In January 2016, UAlberta Pro-Life applied to hold another, similar, rally. The university granted its approval, but said the group would have to pay a $17,500 security fee, in advance, to keep the peace. The anti-abortion group asked for a review, believing the cost to be so prohibitive as to amount to the smothering of their rights to free expression — a so-called “heckler’s veto.” But the university’s decision was final.
Amberlee Nicol, then the president of UAlberta ProLife and Cameron Wilson, then the group’s treasurer, sued the university, asking the Court of Queen’s Bench to review decisions on both the disciplinary action following the 2015 rally and the security costs for the planned 2016 event. (Both students have since graduated, said Jay Cameron, a lawyer with the conservative legal group Justice Centre for Constitutional Freedoms, which represented them. The campus club still exists.)
Nicol and Wilson argued the university was obliged to allow freedom of expression among students and therefore the imposition of security costs on UAlberta ProLife was unconstitutional.
They lost on both counts in October 2017. On the question of disciplinary action under the student code of conduct, Justice Bonnie L. Bokenfohr wrote that “the code does not create rights that complainants can enforce” and, on the issue of security fees she wrote “the decision that UAlberta Pro-Life pay the full cost falls within the range of possible acceptable outcomes defensible in respect of the facts of this case and the law.”
Nichol and Wilson took their arguments to the Alberta Court of Appeal in November 2018.
In a ruling released Monday, the panel of three judges agreed with Bokenfohr that the courts shouldn’t review the disciplinary decision, but sided with the anti-abortion group on two of the three grounds of appeal with regard to free expression. (The court agreed the security costs decision was reviewable and that the Charter applies on campus with regards to free speech; the judges disagreed that there was a common law right to free expression.)
The university, the ruling said, argued it had to spend its money wisely and therefore it was fair to download security costs to UAlberta Pro-Life.
“But cost alone cannot be decisive,” said Justice Jack Watson, writing for the court of appeal. “Charter rights and freedoms all ‘cost money.’ ”
The panel concluded that the onus used in the lower court was misplaced: the university ought to have to prove why the security costs were necessary, as opposed to the anti-abortion students having to argue why the university was unreasonable.
“Universities should not be Charter-free zones,” said Lapper. “In charging security fees to student groups, the university ... is regulating the exchange of ideas that lies at the heart of the pursuit of higher education.”
The university said it was reviewing the decision and declined to comment.