Delineating the Charter’s Scope in Pridgen v University of Calgary

Section 32 of the Canadian Charter of Rights and Freedoms limits the Charter’s application to the activities of the Federal government and Parliament, and the government’s of each province. While the purpose of this provision is to clearly limit the scope of the Charter’s application, as in many areas of law, what initially appears to be clear is a matter left open to judicial interpretation.

The question as to whether the Charter applies to a university was considered in Pridgen v University of Calgary, 2010 ABQB 644 [Pridgen], which was heard at the Alberta Court of Appeal in late 2011. The case involves a Charter claim made by two University of Calgary undergraduate students, Keith and Steven Pridgen, who were found to have committed non-academic misconduct after they posted negative comments about a professor on a Facebook page. Stevent Pridgen’s message stated:

“Some how I think she just got lazy and gave everybody a 65…that’s what I got.

Does anybody know how to apply to have it remarked?”

And Keith Pridgen posted:

“Hey fellow LWSO. homees .. So I am quite sure Mitra is NO LONGER

TEACHING ANY COURSES WITH THE U OF C !!!!! Remember when she

told us she was a long-term professor? Well actually she was only sessional and

picked up our class at the last moment because another prof wasn’t able to do it … lucky us. Well anyways I think we should all congratulate ourselves for leaving a Mitra-free legacy for future L.S.W.O. students!”

Keith Pridgen was placed on probation for 24 months and required to write a letter of apology to Professor Mitra, while Steven Pridgen was required to write the letter of apology. Both students were denied an appeal to the university’s Board of Governors. They therefore filed an application with the Alberta Court of Queen’s Bench to have the decisions overturned, claiming that their right to free expression under section 2(b) of the Charter had been infringed.

Does the Charter Apply?

Madame Justice Strekaf review’s of the matter first considered whether universities can attract Charter scrutiny. She noted that in Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 [Eldridge], the Supreme Court of Canada (“SCC”) held that the Charter can either apply to a government actor or to private entities that are responsible for implementing a specific government policy. After reviewing Alberta’s Post-secondary Learning Act, SA 2003, c P-19.5, Justice Strekaf concluded that “the University is not a Charter free zone.”

Were the Pridgens’ Charter Rights Infringed?

Applying the two-step test set out in Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 SCR 927 [Iriwn Toy], Justice Stekaf found that the Pridgens’ section 2(b) rights had been infringed because the Facebook postings “have expressive content and convey meaning” and the disciplinary action had a direct effect on their freedom of expression. As to whether the infringement could be justified as a reasonable limit under section 1 of the Charter, she concluded that the policy could not be justified because the university failed to demonstrate that its policy “impairs the right to freedom of expression no more than necessary.” As a result, the disciplinary orders against the Pridgens were set aside.

At the time this incident occurred, I was a student at the University of Calgary in the same faculty as the Pridgens. I remember feeling torn about the matter because although I disagreed with the students’ choice of words, I understood their frustrations with a professor who did not live up to their expectations. However, as a first-year law student, I am forced to revisit this matter with a new lens requiring me to look beyond my own feelings on the matter and consider the broader legal implications of this decision. In this case, I agree with Justice Stekaf’s finding that the University is not a “Charter free zone” because it clearly fits within the scope of Charter application articulated in Eldridge, and more importantly, it goes to the heart of what section 2(b) of the Charteris meant to protect.

Freedom of Expression is Integral to Academic Development

By allowing for the exchange and debate of new ideas, freedom of expression is often revered as the foundation of academic development. Without a forum to debate even the most controversial ideas, a concern arises that the very foundation of liberal democracy is put at risk. The Canadian Civil Liberties Association (“CCLA”) focused on this argument as an intervener before the Alberta Court of Appeal. In their factum, the CCLA argued that a university’s ability to suspend a student essentially amounts to the power to deny that student of their freedom to participate in academic debate. For this reason, it is even more important that a university’s disciplinary actions be subject to Charter scrutiny.

The students’ comments were arguably in bad taste, but it is important to remember that the first stage of the Iriwn Toy test is only concerned with whether the communication attempts to convey meaning, rather than the content of that communication. Their comments hardly fall within the realm of hate speech, which was held as an unjustifiable form of free expression in R v Keegstra, [1990] 3 SCR 697 [Keegstra]. In that case, an infringement of the accused’s section 2(b) rights was upheld under section 1 of the Charter because the legislation prohibiting such forms of speech was rationally connected to the government’s objective of preventing harm to the members of the group that are targeted by hate speech.

The SCC’s analysis in Keegstra also emphasized the guiding values behind freedom of expression, including the need to ensure truth, self-fulfilment of the individual, and democracy. Each of these values finds expression in the Pridgen case. In posting the comments, the students were engaging in their own search for truth about the quality of their academic instruction. Self-fulfilment, as described in Keegstra, relates to the idea that individuals should be able to articulate their thoughts and ideas. The act of engaging in criticism is an important aspect of expressing one’s thoughts and ideas and thus the students’ comments should be protected. Criticism plays an essential role in fostering democratic debate within the political process.

What are the larger implications of this case?

Whether the Alberta Court of Appeal decides to overturn this case or not, it is likely to be further appealed to the Supreme Court of Canada because there is a lot at stake for both parties. In considering the potential implications of this decision, I am reminded of another controversial event related to freedom of expression that occurred while I was a student at the University of Calgary. Each year, the Campus Pro-life group would set up a display known as the “Genocide Awareness Project,” which included images of the Holocaust and Rwandan Genocide alongside images of aborted foetuses. The display’s size and location made it an unavoidable sight for students crossing through campus outdoors and resulted in considerable debate, including some confrontational moments between members on opposing sides of the debate. In 2009, the University notified the group that its members would be charged with trespassing if they did not agree to the repeated requests to turn the images inwards so they would only be visible to those who chose to enter the display. After the group failed to comply with these requests, trespassing notices were issued against several students. While the charges in that case were dropped, several students were found to have committed non-academic misconduct in 2010.

Applying the Charter to the University’s actions in this Campus Pro-life case, a prima facie violation of the students’ section 2(b) rights could easily be established, because the content of their display is clearly meant to convey meaning. While the group’s display is arguably a truth seeking activity, an infringement of their rights might also be justifiable under section 1. In disciplining the students, the University’s objective was to “ensure the safety and security” of students and staff. In addition to the physical safety of the campus, I would also argue that psychological safety is another factor because the images had the potential to spark grief for individuals whose own communities have been affected by genocide. There is also no question that many women who have had an abortion were subjected to psychological harm as they were made to feel that their own actions amounted to a form of genocide.

If the University successfully establishes that the potential harm is a pressing and substantial objective, then a section 1 justification could be made out. The University’s actions would likely survive the minimal impairment test because it did not request the complete removal of the signs, and there a number of other ways for the group to foster debate on abortion, such as distributing pamphlets. However, the nature of the s. 1 analysis is largely contextual and would of course require sufficient evidence of harm from both sides of the argument. Although this hypothetical case is an extreme example, it is one of the types of cases that may be brought forward if the Pridgen decision is upheld.