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Free Speech Victory

Last fall, we wrote about ‘the Pridgen Precedent’, or the ruling made by Madam Justice J. Strekaf in Pridgen v. University of Calgary.  John Carpay’s recent article gives a good refresher on the case.  This ruling was not about pro-life students or even abortion at all, but the ruling would, we wrote, set a positive precedent for our pro-life students.  Why?  Because the ruling stated that the Charter of Rights and Freedoms DOES, in fact, apply to universities.  And this means that the freedom of speech of students is protected on campus.

The University of Calgary appealed the decision but, last week, the Alberta Court of Appeal upheld the ruling.

John Carpay, who is also the lawyer for the University of Calgary’s Campus Pro-Life group, wrote a column in the National Post regarding the decision.  He wrote:

If universities were private, they would not be engaging in “government action” so as to invite the Charter’s application. But when the University of Calgary obtains over $600 million from taxpayers each year by claiming to be a forum for free expression for all people and for all views, it forfeits its right to censor speech it dislikes. Holding the U of C to account, as this court ruling does, is good news for students and for taxpayers.

In particular, this precedent will help the students in Ontario and Alberta who have taken Carleton University and the University of Calgary to court in regard to the censorship of pro-life viewpoints. But that is a subject for another column.

This is certainly a victory for not just the Pridgens, but also for students nationwide.

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Universities fail to uphold freedom of expression

Below in an article by John Carpay, taken from Pages 5 and 7 of The Lawyers Weekly article, 29 October 2010.


The arrest of five pro-life students at Carleton on October 4, 2010 is a repudiation of the university’s mission is to pursue truth, which necessarily requires vigorous debate and uncensored speech.  Yet students Ruth Lobo, James Shaw, Nicholas McLeod, Zuza Kurzawa and Craig Stewart were handcuffed and driven off in paddy-wagons while attempting to set up their pro-life display on a prominent place on Carleton’s campus, in an area where numerous other student groups have been allowed to express their views freely.

Carleton asserts that “the students were in no way denied the opportunity to express their views or to mount their exhibit.”  But Carleton expressly refused to allow the pro-lifers to use the same well-travelled location on campus (Tory Quad) which other Carleton students are allowed to use to express their views.  This past August, Carleton official David Sterritt told pro-life students that they could not set up their display outdoors because “the Genocide Awareness Project uses promotional materials which are disturbing and offensive to some.”  Carleton offered the pro-lifers an inconspicuous indoor space (Porter Hall) which has no walk-through traffic.

Would Carleton deny a prominent place on campus to gay or Muslim students, just because some people might find their speech offensive?  If other groups wanted to use disturbing photos to expose the injustice of spousal assault, genocide in Darfur, cruelty to animals, or impaired driving, would Carleton limit those groups to an out-of-the-way place?

The Carleton pro-life students could have accepted the university’s discriminatory offer to allow them to set up their display where few would see it.  But like Rosa Parks rejecting a second-class bus ride, these students defied the university’s attempt to appoint itself the arbiter of which views are acceptable enough to be proclaimed openly, and which views can only be expressed in a back room.  As one of the arrested students, Nicholas McLeod, explained it: “The point of a protest is for people to see it.  Limiting an exhibit to an inside room is like telling Martin Luther King that he couldn’t march through white neighbourhoods.”

Like Carleton, the University of Calgary has also attempted to censor pro-life speech on campus while proclaiming that “everyone must obey the rules.”  In 2006 and 2007, the Genocide Awareness Project was displayed on campus for eight days.  The U of C posted its own signs nearby, proclaiming the exhibit was protected by the Charter.  The exhibit generated discussion and debate on campus, without problems or incidents. But in 2008, the U of C started demanding that the students’ signs be turned inwards, such that no person walking by can see the signs.

The “law and order” claims of Carleton and the U of C are fundamentally dishonest because the rules are not being applied equally to all groups.  Arbitrarily denying one group an outdoor place, or ordering a group to hide its signs from view, are forms of censorship and viewpoint discrimination.  Claiming that pro-life groups at Carleton and the U of C enjoy free speech is like claiming that Blacks in the segregated South could attend school, and ride on the bus.  The claim is disingenuous because it’s true only on a very superficial level, while masking the injustice of blatant discrimination.

(Page 7 continuation of The Lawyers Weekly article)

At its core, the right to free expression is a right to offend other people.  Anyone in any country, no matter how oppressive its regime, can say anything they wish so long as it doesn’t offend anyone.  This was true of the old Soviet Union and is true today of China and Iran.  Indeed, these countries will insist that their citizens are completely free to express themselves, provided they don’t say offensive things.  But a truly free society – which Canada purports to be –  is one where people sometimes have to hear and see the things they hate.  For the U of C and Carleton to restrict free speech arbitrarily because some unnamed person or persons might be “offended” or “disturbed” is to place subjective feelings ahead of Charter-guaranteed constitutional rights.

Further, the right of free speech belongs not only to the speaker, but to potential listeners as well.  While claiming to protect “the rights of others” by suppressing unpopular and controversial speech, the U of C and Carleton are trampling on the rights of university students to be exposed to diverse voices.

Recently the Alberta Court of Queen’s Bench in Pridgen v. University of Calgary (October 13, 2010) rebuked the university for its bullying and censorship tactics.  In 2007, Keith and Steven Pridgen (and other students) used a Facebook page to criticize one of their professors as incompetent.  The U of C found the students guilty of non-academic misconduct, and threatened them with the possibility of expulsion unless they apologized.

When the Pridgen brothers challenged these disciplinary proceedings as violating their Charter rights, the U of C tried to rely on McKinney v. University of Guelph, [1990] 3 SCR 229, which held that the Charter does not apply to a university’s dealings with its own employees, by way of a mandatory retirement policy.  However, the Court in McKinney also held that the Charter could apply to university action that is sufficiently governmental in nature.  Applying Eldridge v. British Columbia, [1997] S.C.R. 624, Justice Jo’Anne Strekaf held that the Charter applies in respect of disciplinary proceedings taken by a university against its own students, pursuant to Alberta’s Post-Secondary Learning Act.  Justice Strekaf held that the U of C is “an agent of the provincial government in providing accessible post-secondary education services to students in Alberta” and is “not a Charter-free zone.”  The Court held that “while the university is free to construct policies dealing with student behaviour 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.”

The Pridgen decision bodes well for pro-life students at Carleton and the U of C, who have courageously resisted the university’s arbitrary censorship.

John Carpay is a Calgary lawyer.  Among his clients are University of Calgary pro-life students who are resisting the university’s censorship demands.

This article originally appeared in the Oct. 29, 2010, issue of The Lawyers Weekly published by LexisNexis Canada Inc.

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