UCalgary should appeal Facebook ruling

Let's hope they make it to the Supreme Court and lose

The University of Calgary is appealing a court decision that overturned sanctions imposed on two students for insulting a professor on Facebook. This is a good thing.

Not because I’d like to see the decision overturned but because universities, students and professors need clarity on how and when the Canadian Charter of Rights and Freedoms applies to universities.

In 1990, the Supreme Court of Canada ruled that decisions made by universities are not government decisions, so the Charter doesn’t apply to them. But that ruling did leave open the possibility that some university decisions could be considered government decisions.

And that’s where this case comes in, Alberta universities derive their powers to discipline students directly from provincial legislation and because “the University is acting as the agent of the provincial government in providing accessible post-secondary education services to students in Alberta,” according to Justice Jo’Anne Strekaf. Decisions related to student discipline–especially when it affects their education–are subject to judicial oversight and to Charter tests of reasonableness.

She adds that while universities “may be autonomous in their day-to-day operations  . . . The regulation of freedom of expression as a condition of attendance cannot be properly classified as day-to-day operations.”

This is all good stuff but some parts of her ruling could be interpreted quite broadly:

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 [Alberta’s Post-Secondary Learning Act].

This means that these decisions are subject to judicial scrutiny. Now I don’t think this is necessarily a bad thing, but this it could be claimed that almost every decision a university makes impacts participation in the post-secondary system.

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.

Ideally, I’d like to see this case go to the Supreme Court of Canada. Right now, for obvious reasons, this case only applies to Alberta. It would be interesting to see whether the Supreme Court applies it to the whole country. As education is a provincial responsibility and every province has different legislation governing universities. At the moment no one outside of Alberta has any idea how the charter applies to their university.

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