TANNARA YELLAND
CUP Prairies & Northern Bureau Chief
Two brothers at the University of Calgary secured a major and controversial legal victory for university students on Oct. 12.
Alberta Justice Jo’Anne Strekaf ruled in favour of Keith and Steven Pridgen in their case against the U of C, which claimed that the university is subject to the restrictions of the Charter of Rights and Freedoms in certain cases.
Previous court rulings, some at the Supreme Court levels, have found that universities are generally not subject to the Charter. However, those rulings left unclear whether there were areas in which the Charter would apply to universities.
The Pridgen twins were found guilty of non-academic misconduct at the U of C for posts they made to a Facebook page about Aruna Mitra, a professor who taught them a survey course on law.
Other students were also punished for their comments posted to the Facebook page.
Keith and Steven Pridgen had been placed on probation and threatened with possible expulsion if they refused to write letters of apology to Mitra. They sued the university after they were denied a second appeal to the U of C Board of Governors, ultimately leading to the court decision that cleared them of wrongdoing.
Strekaf’s ruling states that students “should not be prevented from expressing critical opinions” about their education, including teaching quality.
The ruling “is a positive development for the free speech rights of students,” said Calgary litigator John Carpay. He went on to link the ruling to the recent spate of crackdowns on campus pro-life groups. Groups at the U of C and Carleton University have faced suspension and arrest for refusing to remove displays from campus grounds.
“If a university can censor pro-life views because they are unpopular, those censorship powers can also be exercised against other viewpoints 10 months or years or weeks down the road,” said Carpay.
Noah Sarna, a B.C. lawyer who has written a book about education law, expanded on the significance of the ruling for Canadian universities. He explained that Justice Strekaf’s ruling has garnered a lot of attention for including the university under the Charter in this situation.
“This centres on a historic issue related to the legal status of universities,” Sarna said. “Does the Charter apply? It applies to Parliament, to the federal and provincial governments. But what else does the Charter apply to?”
People have been asking questions about whether public, but not governmental, institutions such as hospitals, public universities and liquor boards, are subject to the restrictions of the Charter since the Charter’s 1982 inception.
Because education is the responsibility of provincial governments and universities provide education on behalf of the governments, Strekaf found that the U of C was acting for the Alberta government and, as a result, was required to abide by the Charter. By placing the Pridgen twins on probation, the U of C violated their access to education, therefore violating their mandate to educate.
“The court said the university was excessive in the way it dealt with the situation by threatening the students with the possibility of expulsion unless they unequivocally apologized,” said Carpay.
Universities receive significant public funding, which leads people to want them to follow the same regulations governments are required to abide by, Sarna said. However, schools have largely rejected this view while students and many others have pushed for inclusion under the Charter.
But Sarna cautioned that excitement about this ruling would be premature — the university still has the option to appeal the ruling in Alberta. Even if it stands, the case was heard in a provincial court, meaning the ruling is only binding in Alberta.
If the university appeals, the case could go to the Alberta Court of Appeals and, possibly, to the Supreme Court after that.
“It’s still at the very early stages of what could be a very interesting dispute,” he said, while stressing that the implications of the ruling “could be on hold” until the university makes a decision about appealing.
Even so, Sarna says the ruling gives students a sense of empowerment.
“Within the confines of this decision, they have rights against the university with respect to the Charter.”
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