CFS-BC wins Supreme Court ruling

Landmark ruling marks a new chapter for free speech rights in Canada


 

The Canadian Federation of Students – British Columbia has won its case against transportation company Translink’s advertising restrictions.

This ruling could have implications beyond Translink. The Supreme Court has ruled the Charter of Rights and Freedoms applies to “arms-length” government agencies.

Supreme Court ruling online: http://scc.lexum.umontreal.ca/en/news_release/2009/09-07-10.3/09-07-10.3.html

The implications for this could potentially extend to universities. Publicly funded universities like to consider themselves to be “private bodies” and except from provisions of the Charter.

It’s only a matter of time before someone challenges an university’s restrictions and argues the Charter applies to universities.

I look forward to the day when people enjoy the same protections of their freedoms from university officials as they receive from government officials.


 

CFS-BC wins Supreme Court ruling

  1. Hi Joey,

    The Supreme Court of Canada (SCC) ruled on the question of whether or not public universities in Canada are government entities or agents in the McKinney case in 1990 (McKinney v. University of Guelph, [1990] 3 S.C.R. 229). In that ruling the Court concluded that public universities are neither government entities nor agents of government. In a related ruling (Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570), the Supreme Court of Canada ruled that colleges in BC are government agents.

    This doesn’t mean that the matter is settled for all time. As legislation governing universities changes and the way government and universities relate to one another through policy and practice changes, there might be grounds for the SCC to revisit the McKinney decision at some point in the future.

    At this point in time, I think if the SCC were asked to revisit the McKinney decision that the result would be the same, but it might not be as clear cut a decision as in 1990.

    Cheers,

    Rob

  2. Applying the Charter to universities would be a horrible idea. Universities are not public streets.

  3. Every institution of society is destined to be reconstructed by the Charter of Rights and Freedoms. This is because the Charter is a law that BINDS all other laws. There is no other such law. It’s a freak. In my view, when entrenchment of the Bill of Rights was considered the sane decision would have been to amend the criminal code (for discrimination claims) and to introduce a legal process of tribunal revision. Decisions of the Charter tribunal would be binding, whereas the law would not be. In this way the Charter itself could change in response to societal transitions that were being considered in light of the standards it proposes. In effect, we have the rise of powers of HRC’s which are ‘think-tanks’ where charter rights are considered. Few people are satisfied with the operation of HRC’s and while their decisions are binding, they make few decisions. It is left to the Court to hammer away at individual laws case by case without the support of the Tribunal system. Mistake! So many of our laws are now morally impotent. The power of the Court to enforce is threatened when laws are morally corrupt. Canada is in big trouble. We need a new Chief Justice who can lead us to a solution.

  4. Small point: As tuition increases as a proportion of universities operating expenditures (and operating grants from governments drop as a proportion), it becomes less likely that courts will see universities as arms length entities.

  5. You make a good point Sean, but the real test is whether or not “command and control” is exercised. If students paid 100% of the costs, but the Board of Governors and the Senate rubber stamped government policy decisions, then the Court would have to conclude that the universities were acting as government agents.

    Given that there are many grey areas, however, the fact that government is paying a decreasing share of the costs of running the universities would certainly be a factor in the SCC deciding they were not government agents.

  6. I’m struggling to come up with an example of that.

    Where consumers pay the bill for a service, but the service provider rubber-stamped government policy decisions, thus making the service provider a government agent.

  7. The Drive Test Centres in Ontario is the best example I can come up with.

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