The B.C. Court of Appeal has ruled that students don’t have the right of free speech on campus
Canada’s Charter of Rights and Freedoms does not protect university students’ right to free expression on campus, according to the B.C. Court of Appeal. It is a ruling that deserves to be challenged.
The ruling was made in the case of the B.C. Civil Liberties Association and Cam Côté vs. the University of Victoria. The case arose in 2013, when the university withdrew its approval for a peaceful campus event requested by a campus anti-abortion club, Youth Protecting Youth (YPY).
The university took its instructions from the University of Victoria Students’ Society, a student union with a long track record of active opposition toward YPY. At various times in the past decade, the student union has denied club status to YPY; withheld club funding (routinely given to other campus clubs); prevented YPY from advertising its events; and filed “harassment” complaints against YPY, based on disagreement with YPY’s beliefs and expression. The student union has not alleged that YPY members engage in disrespectful or offensive behaviour – the anti-abortion message itself constitutes “harassment.”
The student union is obviously not familiar with – or chooses to ignore – court decisions that unequivocally describe abortion as a subject which can be, and ought to be, debated.
YPY proceeded to hold its event as previously approved by the university, by holding signs, handing out pamphlets and engaging other students in discussion. The university responded by imposing a one-year ban on YPY, which the university lifted only after YPY started court action.
In their court action against the university, the B.C. Civil Liberties Association and YPY president Cam Côté asked what a university’s mission and purpose are. Should the university be a forum for the expression and debate of ideas, including controversial and unpopular ones? Or should the university determine the “truth” on behalf of everyone, and then coddle students’ minds by ensuring they are “safe” from seeing or hearing challenges to established opinion and orthodoxy?
Walmart has no obligation to facilitate free expression on its premises. Stores rent space from malls to conduct business and earn profits, not to provide a forum for discussion and debate. Mosques, temples and churches are likewise private entities, which do not need to provide space for opposing views. The same goes for thousands of social, cultural, ethnic, political and charitable groups. Private associations can advocate freely for their own beliefs, and also require agreement with those beliefs as a condition for membership.
But as a public body exercising a public function, the University of Victoria is no Walmart. Canada’s public universities exercise power over the granting of almost all degrees. A student who is expelled from a public university for violating the university’s speech code will find it very difficult, if not impossible, to become a teacher, nurse, doctor, accountant or engineer. As a taxpayer-funded institution created by B.C.’s University Act to fulfil a public responsibility, the University of Victoria is legally obligated to honour free expression on campus as a fundamental Canadian value.
Freedom of speech was recognized by the Supreme Court of Canada as a foundational value of our democracy long before the charter came into force. In 1957, the court described the free exchange of ideas as “little less vital to man’s mind and spirit than breathing is to his physical existence.” The Supreme Court has noted, quoting John Stuart Mill: “Ages are no more infallible than individuals; every age having held many opinions which subsequent ages have deemed not only false but absurd; and . . . many opinions now general will be rejected by future ages, as it is that many, once general, are rejected by the present.”
Universities should be educating robust, thinking minds. The law should not allow universities to become a lesser and distorted version of themselves.
The B.C. Court of Appeal made it clear that the charter does not protect the rights of students to express their opinions on campus at the University of Victoria and B.C.’s other public universities. However, the door is wide open for students to advance strong non-charter arguments in defence of their campus free speech rights.
The current climate on campus being what it is, it likely won’t be long before students get that chance.
By John Carpay
John Carpay is president of the Justice Centre for Constitutional Freedoms (www.jccf.ca), which was an intervenor in the B.C. Court of Appeal in B.C. Civil Liberties Association and Cam Côté vs. University of Victoria.