Posts tagged abortion

Does the Charter apply to universities? The plot thickens with recent decision

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Many university administrators and student leaders have been watching with interest as the legal dispute between anti-abortion activists and Carleton University winds it way through the courts (see here and here for background). 

Specifically, the curiosity surrounds one issue: does the Canadian Charter of Rights and Freedoms apply to universities? 

If the Charter does apply, then political activists, not to mention anyone else with a grievance against a university, have an incredible legal tool at their disposal, while universities have the nightmare of a possible deluge of Charter claims winding up on their doorsteps. 

In a decision (CanLII) released last week, Madam Justice Toscamo Roccamo of the Ontario Superior Court of Justice ruled that the portion of the pleadings (Wikipedia) of the anti-abortion activists dealing with the Charter argument against Carleton should be struck because it fails to disclose a reasonable cause of action. 

Translated into normal words: the Charter argument – in the court’s view – stinks and should not be allowed to form part of any ongoing litigation. 

After a string of Supreme Court of Canada decisions dealing with this question (discussed more here), a university would be subject to the Charter if either of the following applied:  

  1.  the university, in its entirety, is fairly said to be an “organ of government” because of the degree of governmental control over it as an organization; or
  2. a specific activity of a university is fairly said to be “government” even though the rest of university’s activities would not be.

This approach makes sense: the Charter applies to government actors, and universities should not be subject to the Charter unless they are, or are doing something, governmental.

For a long time, universities liked this view, which was echoed repeatedly in court decisions.  But the recent Pridgen decision (discussed more here and here) was reason for concern.  In that case, the court reviewed the legislation behind the University of Calgary and found that the university “is not part of the government so as to make all of its actions subject to the Charter .  That is, even though, among other things:

  • universities in Alberta are established by legislation;
  • various members of governing university bodies are appointed by the province; and
  • the Lieutenant Governor in Council has the ability to restrict how those rights are used,

the court still did not consider the university to be “government” in its entirety.  However, the court did find that the university “was implementing a specific statutory scheme or government program with respect to the actions” at issue, given that universities in Alberta generally function within that legislation hand-in-hand with government – at least as far as post-secondary education is concerned – to carry out what is essentially a government program.  In that sense, the university operates as a “partner” with Alberta when it comes to educating (though not necessarily when hiring and firing employees, for example). 

This is key:

When a university committee renders decisions which may impact, curtail or prevent participation in the post‑secondary system or which would prevent the opportunity to participate in learning opportunities, it directly impacts the stated policy of providing an accessible educational system as entrusted to it under the PSL Act. The nature of these activities attracts Charter scrutiny.

In Lobo v. Carleton University, the Ontario decision released last week, the court kicked aside any sort of precedent from Pridgen:

The Plaintiffs’ reference to the outcome in Pridgen v. University of Calgary, 2010 ABQB 644 (CanLII), 2010 ABQB 644, 497 A.R. 219, under appeal, fails to recognize that the Court made specific reference to the governing structure of the university in that case which involved significant government involvement.  On this basis, the Court found the university was delivering a specific government program in partnership with the government. By contrast, the Carleton University Act, 1952 created an autonomous entity whose structure and governance is in no way prescribed by the government. Subsequent enactment of the Post‑secondary Education Choice and Excellence Act in no way derogates from that autonomy.

Here’s the take-over message: ultimately, whether the Charter applies to a particular university or university activity may depend on the legislation behind the university.  Assuming neither Lobo nor Pridgen are appealed, universities and students will have more to work with when trying to find out whether the relevant legislation is on one side of the fence or the other.

Pro-life students suing Carelton are forced to pay costs

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The lawsuit against Carleton University from two anti-abortion student activists is slowly (and expensively) winding its way through the courts. 

The two students – Ruth Lobo and John McLeod – were arrested last fall for participating in an unauthorized protest on campus (see here and here for background information).  Subsequently, they sued the university.  The university responded by applying to the court to dismiss their claims on the basis that their pleadings (Wikipedia) did not disclose a reasonable cause of action (e.g. their claims were frivolous).

Madam Justice Toscano Roccamo of the Ontario Superior Court of Justice ruled over the summer against the university on this application and allowed the students’ lawsuit to continue but ordered (CanLII) that certain portions of their pleadings be amended.  Also, she struck one claim made by the students, namely that the university owed the students a fiduciary duty.  Finally, she recently ordered the students to compensate the university for a portion of its costs incurred in the application ($18,400.87 plus tax).  Carleton Lifeline, the group Lobo and McLeod were a part of, has posted pleadings revised by the students.

Many students have been arrested before for unauthorized on-campus protests, but the interesting thing about this lawsuit is that the students are trying to assert the Charter of Rights and Freedoms (Department of Justice) applies to the university and protects the students’ actions, which is a novel claim prompted by the Pridgen decision.  Justice Roccamo commented in her recent judgement that “this litigation raises matters of particular interest to these parties which may result in the evolution of jurisprudence having broad application to universities and students across the country…”

We’ll see where the next step leads.

Carleton moves to dismiss claims of anti-abortion activists

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The Ottawa Citizen reported last week that Carleton University, which is being sued by two anti-abortion student activists for shutting down an unauthorized protest on campus, has asked the court to toss out the students’ lawsuit on the basis that they did not disclose a reasonable cause of action – i.e. the claim is frivolous, vexatious, etc. 

This sort of application is available to defendants who think the claim against them does not meet the minimum threshold necessary to justify using the court’s resources.  Occasionally, it is brought up when the defendant feels their pursuer is using law as a public relations tool or for a malicious purpose, without actually having a truly legitimate issue to explore in court.  In these situations, it would be a shameful waste on everyones’ time and money to let the legal fight continue.

Universities consistently make this application when confronted by lawsuits from students in the hopes that it will end the dispute shortly after the starting line (see here for more on this).  The usual argument from the university is that the dispute is an internal, private one and – parenthetically – the claim against it is silly anyways. 

In terms of Carleton, these are the claims made by the students that form the basis of the lawsuit:

  1. Carleton broke its own internal policies related to academic freedom.
  2. Carleton broke its fiduciary duties to students to provide an environment for free and open debate.
  3. Carleton had the students wrongfully arrested.
  4. Carleton broke its contract with the students by not protecting their right to free expression on campus.
  5. Carleton infringed many of the students’ rights under the Charter.

The university appears to have responded to each of these points in the legal documents, but the most interesting issue is whether this is, in fact, an internal matter between private parties.  If the students in this case have rights under the Charter against the university, then it means at least for the purposes of free speech the university is a governmental actor (ala the Pridgen decision in Alberta).  The dispute, then, would be private citizens vs. government actor, and not private citizens vs. private institution, the latter being more likely to be dismissed at this stage. 

Ontario Superior Court Justice Giovanna Toscano Roccamo has not yet revealed her decision on the university’s application.

Campus culture wars: who were are is about who we admit

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 A surprising number of legal battles grow out of steps taken by a student union against student groups that they disagree with or disapprove of.  Most recently,  the unpopular flavour of the day is pro-life groups (see here).  Is a student union required to grant club status (usually involving special entitlements to funding, space, etc.)  to any group of students with a common campus purpose?

Who do we accept and who do we reject?  Illegal purposes or aims are definitely out of the question – a neo-nazi student awareness club, for example, might be easy to reject if laws against hate speech and/or violence would most likely be broken as a result.  But it gets more difficult to draw the line.  Consider any political or social issue on which the student body might be divided or substantial minorities might exist (e.g. the Arab-Israeli conflict).  And how should pluralism be valued?  Should the fact that a certain number of students hold a view (that you may find objectionable) make it worthy of being the focus of a club?

My own experience as a student activist taught me alot about this issue, and I was frustrated as a student watching my student union fail to properly articulate a clear justification for who was in and who was out (or, on a related topic, who should get more funding and who should get less).  Mark Mercer, chair of the philosophy department at Saint Mary’s University in Halifax, has an interesting opinion in University Affairs, arguing that the “safe” approach of denying club status where the perspective of the group may offend many people is a form of anti-intellectualism.  Agree with it or not, I’m happy to see someone take a strong, clear position on a political question that has produced severe legal consequences on campuses.

One note of caution, though, on Mercer’s comments on dealing with “anti-intellectual” student governments.  It is generally fairly difficult for a university administration to waive away or “dissolve” a student union, given that student unions are generally incorporated non-profit societies.  They have a legal status independent of the university.  And their members are the students and not the university itself.  Finally, they often have contracts with the universities, which the universities may not be able to walk away from.  This isn’t to say that universities have their hands tied; it just means they’ll have to work hard to deal with the challenge.

Pro-life students arrested at Carleton

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The Ottawa Citizen reported earlier this week that five pro-life student activists were arrested at Carleton University for staging a protest that featured graphic images of bloody fetuses and comparisons to historical genocides in a certain common area of campus.  The students had requested permission from the university two months prior to use the space for the protest, but that request was denied and the university instead offered a less prominent location.  The protest and arrests are captured in this video (youtube).

The abortion debate has returned to the center stage on Canadian campuses over the past couple of years, with anti-abortion activists making headlines and attracting responses from both university administrators and student union representatives.  See here for a discussion of recent events on BC campuses.

This particular incident, as represented in the youtube video, involves a well-spoken student leader and gives the university a black eye because of the legal issues raised by the university’s decision to summon police to carry out the arrests:

  • Did the students trespass?  Trespass is a broad legal term that, at least under the Trespass Act (BC) (BCLaws), includes a person engaging in an activity on certain property after the occupier of that property has told them that the activity is prohibited.  Presumably, the students paid their tuition – though one of the five was not a student at Carleton – and in return the university gives them the right (called a “licence”) to use the university’s property in certain ways (e.g. to access classrooms) under certain conditions (e.g. so long as they act within some defined series of rules applicable to student conduct).  In this case, the university seems to be saying that situating the protest in that space was a prohibited activity and so, technically, the students may have trespassed.
  • Is university property public or private?  This issue always sounds to me more like a political than legal argument for the following reason: just because property may be owned by a public body does not mean individuals have the right (or should have the right) to use that property for political protest at any time and of any form.  Freedom of speech is important, but so is regulating traffic, maintaining law and order, respecting local businessowners, etc.  The centre of the intersection at Burrard and Robson may be owned by the City of Vancouver, but that does not entitle five Vancouver residents to stand there with placards and a soapbox after failing to get a permit to do so.
  • Does the public have the right to be exposed to graphic images only with prior consent?  This is an interesting issue because it touches on the need to balance competing rights and values – e.g. the right to political protest vs. the right to go about your business without being forced to stare at pictures you consider offensive.

These issues have long histories related to political protest, particularly on campuses.  However, the most salient point appears to me to be whether the university is exercising its powers to discriminate against a group on account of having certain political views.  In many respects, a code of student rights and responsibilities acts like a student’s contract with a university, and if the university is breaking that contract a student should be able to point that out.

The tactical issues for the university and perhaps the police are another matter as well.  For example, lawful or not, did the students need to be handcuffed?  My guess is they could have been ushered away without resorting to cuffs, but there may be some criminal law requirement I am unaware of.  University administrators, quite reasonably, have an interest in maintaining order on campus – there would be little benefit if political groups could simply protest where, when and how they wanted to.  But universities have been notoriously unprepared to deal with these issues, especially where the media is involved (e.g. despite the video’s prominence of youtube, I don’t think Carleton even has a press release about the event up on its website). 

As a first step, universities and student groups engaged in these issue should have sufficient legal advice to persuasively explain their positions.

UVIC pro-life student group sues student society

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Youth Protecting Youth, a pro-life student group active at the University of Victoria, has begun a lawsuit against the UVIC Students’ Society, arguing that a decision to bar funding to the group was illegal.  The petition filed last week by YPY in BC Supreme Court asks for a declaration that all previous refusals to fund or ratify the group’s status were illegal; an order for immediate funding and ratification; an order preventing similar treatment in the future; an order for the deposit of the funds denied in the past few years, and so on. (See my previous post on this issue here.)

The BC Civil Liberties Association intends to try to become an intervenor in the legal proceedings.

Justin McElroy at McLean’s On Campus commented that restrictions on pro-life campus groups are becoming part of a common script:

Step 1: A pro-life student club (or traveling exhibition) compares abortion in some way to murder/genocide/terrible, terrible things

Step 2: The university’s student council, in all its wisdom, decides to ban said group or club from campus.

Step 3: Gnashing of teeth commences.

As McElroy points out, there have been a series of similar decisions by student governments across the country over the past couple of years, and rarely has the dispute wound up in court:

Case law on the subject is murky. In 2008, BC’s human rights tribunal dismissed a complaint by UBC-Okanagan’s pro-choice student club, Students For Life, allowing the student union to continue to deny them club status. However, at the time William Black, a law professor at UBC, said the case probably wasn’t precedent setting, arguing “It looks like it was rejected not as a matter of principle, but based on the facts.” At UBC-O, a special general meeting was held to ban Students For Life. At UVic, all decisions involving YPY have been made exclusively by the UVSS council. In America however, the Supreme Court ruled in 2000 that student clubs cannot be denied funding based on their viewpoint.

The costs of commencing an action usually require a certain basement dollar amount at stake before proceeding.  Experience shows that legal fees, up to a certain point, often total a third of the amount being claimed.  In this case, it’s all about principle. 

Two prior claims before the BC Human Rights Tribunal by similar groups have resulted in different decisions (see judgments on CanLII here and here).  YPY’s choice of how to frame its complaint is likely based on lessons learned from those experiences.  Many other pro-life groups – and student governments – will no doubt be watching this case for a sign of things to come.

UVIC Students’ Society votes to revoke status of pro-life club

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The University of Victoria Students’ Society (UVSS) voted last week to revoke the club status of Youth Protecting Youth (YPY), a pro-life group on campus.  The move caps a stormy series of events between the UVSS and YPY.  In October 2008, the UVSS denied club funding for YPY but maintained its status as a club.  This decision was repeated in the fall of 2009, and activism surrounding abortion at UVIC reached a peak in October 2009 with a well-attended public debate on campus.  Erin Millar at Maclean’s has recent coverage here and some older coverage see here

The dispute between the UVSS and YPY has cast a wider scope of interest with the B.C. Civil Liberties Association (BCCLA) throwing its hat into the ring in favour of YPY, condemning the UVSS’ conduct.

The UVSS’ position appears to be based on its powers under Part E (Discipline) and Part F (Harassment) of Part III of the Board of Directors Policy Manual.  Anyone who feels that a student club has engaged in harassment can complain to the Clubs Council committee of the UVSS.  The Clubs Council investigates and reports to the UVSS board of directors, which is entitled to discipline the club by taking certain measures, including denying funding or revoking club status.  The UVSS has stated that in this case it is responding to such a complaint in relation to YPY.

The problem is, according to the BCCLA, that it appears the decision was taken as a result of the premise behind YPY rather than particular conduct (i.e. what it is rather than what it does).  This, simply put, is anti-democratic.  Now, as Erin Millar suggests, the battle might shift to the courtroom.

The UVSS’ decision raises two interesting questions:

  1. what is the role of the university – UVIC – in all this; and
  2. how will the dispute likely get resolved if it did go to court?

First, despite the obvious connections, there probably isn’t much of a legal relationship between this decision and any claim by the students in YPY that UVIC has done something wrong or should do something different now.  In general, student unions are societies independent from the universities on which they operate (see here as an example).  The members of each society – namely, students at a particular university – contribute fees to provide funding, part of which is allocated to various student clubs.  When the powers that be within the society determine a certain club has been acting out of line, they have the discretion to turn off the tap. 

Politically, as well, it is generally unwise for a university to wade into a dispute between student groups unless unrest is involved.  UVIC probably doesn’t want to touch this one with an opening ceremony length torch. 

Second, the preliminary hurdle here is whether the dispute will make it to court.  Law is expensive.  Money is something many students and campus groups don’t have.  But if this dispute did get before a judge, the decision would depend largely on the type of claim launched by YPY (or BCCLA).  One the one hand, they may claim that the UVSS’ decision was inconsistent with the Society Act (British Columbia), which governs societies.  On the other hand, they may launch a complaint under the Human Rights Code (British Columbia) before the B.C. Human Rights Tribunal, alleging the UVSS’ course of action constituted discrimination.  If that happens, both sides will likely look at Gray v. UBC Students’ Union, where the court rejected the claim of a pro-abortion group that it had suffered discrimination on the basis of religion.  The court there found that the student group had been shut down because of its offensive conduct and nothing else (but see also this decision).  As well, a court might insist first that YPY exhaust any dispute resolution mechanism available within the UVSS or UVIC before approaching a judge.

Time will tell.

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