The Globe and Mail reported over the weekend that the University of Calgary has filed an appeal regarding a recent decision (CanLII) of the Alberta Court of Queen’s Bench that found that the university had violated the rights of two students under the Canadian Charter of Rights and Freedoms by punishing them for criticizing a professor on facebook.  For a comprehensive review of the decision, please see here.

In an article by the Toronto Sun, University of Calgary spokesperson James Stevenson said the purpose of the appeal was not to further punish the students but rather:

[to seek] clarity on the extent to which the Charter applies to its own operations and those of other post-secondary institutions in Canada… As such, the reason for filing the notice of appeal goes well beyond the specific individuals involved… Filing the notice to appeal allows the university more time to study the decision, and how it fits with other similar cases currently before the courts in other Canadian jurisdictions.

Jacob Serebin opined in his blog on Macleans OnCampus that at the moment “no one outside Alberta has any idea how the charter applies to their university” and he welcomes an appeal for the sake of clarifying some of the more ambiguous comments of the court regarding the scope of the Charter’s application.  He writes:

That’s why I’d like to see this case go to appeal. When it comes to these sorts of decisions, appeals courts tend to clarify and think about how their ruling will impact similar cases that lower courts will see in the future, not just the one in front of them.

Consider the following comments by the court in the Pridgen decision:

While the hiring and firing of employees by a university is non‑governmental in nature… the disciplining of students and the placement of restrictions on a student’s ability to exercise his or her freedom of expression in the context of pursuing an education at a public post‑secondary institution is altogether different. In order to successfully attend the University, students are compelled to adhere to its rules and policies. The regulation of freedom of expression as a condition of attendance cannot be properly classified as day‑to‑day operations [i.e. it is more likely to be governmental in nature].

…The Charter does apply in respect of the disciplinary proceedings taken by the University against the Applicants pursuant to the PSL Act…. [The] source of the alleged Charter violation is the conduct of the University as opposed to the legislation itself. While the University is free to construct policies dealing with student behavior which may ultimately impact access to the post-secondary system, the manner in which those policies are interpreted and applied must not offend the rights provided under the Charter.

These comments appear to draw lines in the sand around what spheres of university conduct are subject to the Charter.  Treatment of employees: no.  Disciplinary measures imposed because of student conduct: yes.  But some further clarification would be helpful.  

The students’ lawyer told the Calgary Herald that before this case the general impression among the legal community was that the Charter did not apply to universities, even though courts have never said that in such absolute terms.  That’s true – it just so happens that all the decisions involving charter claims against universities have been rejected or have never properly addressed the issue.  The decision turned some heads and serves as a landmark case but at the end of the day it simply fit within a neatly set out conceptual window created by the courts, where the right facts finally came along to demonstrate what type of university activities of an autonomous institution will be subject to the Charter.  

Let’s see what the Alberta Court of Appeal has to say.

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