John Carpay
The Canadian Charter of Rights and Freedoms is wrongly seen as the sole guarantor of freedom of expression. In fact, Canada’s tradition of tolerance for free speech dates back to 17th century England. In the 18th century, British politician and philanthropist William Wilberforce exercised his freedom of expression to turn public opinion against the slave trade. The right of Canadians to offend each other through the peaceful expression of unpopular opinions was clearly established and rooted in Canadian law long before 1982’s Charter.
In Reference re: Alberta Legislation (1938), the Supreme Court of Canada held that “the practice of this right of free public discussion of public affairs, notwithstanding its incidental mischiefs, is the breath of life for parliamentary institutions … Democracy cannot be maintained without its foundation: free public opinion and free discussion throughout the nation of all matters affecting the State.”
In R. v. Boucher (1951), the Supreme Court acquitted a Jehovah’s Witness accused of publishing seditious libel. A pamphlet entitled “Quebec’s Burning Hate for God and Christ and Freedom Is the Shame of all Canada” was extremely offensive in Quebec in the 1950s. Provided there was no intention to incite violence against the government, however, vigorous criticism of government and society was okay.
In Saumur v. Quebec City (1953), Jehovah’s Witnesses violated a municipal by-law which forbade the distribution of pamphlets in the streets without prior permission from the chief of police. The Supreme Court held that freedom of speech and religion “are original freedoms which are at once the necessary attributes and modes of self-expression of human beings and the primary conditions of their community life within a legal order.”
In Switzman v. Elbling (1957), the Supreme Court struck down Quebec’s “Padlock Act,” which prohibited anyone from using a home (his own or his landlord’s) to propagate “communism or bolshevism” by any means whatsoever. The government could close the house for up to a year. This law violated both freedom of association and freedom of expression, by trying to prevent, through penalties, “a poisoning of men’s minds, to shield the individual from exposure to dangerous ideas, to protect him, in short, from his own thinking propensities.” The Court held that free expression is “little less vital to man’s mind and spirit than breathing is to his physical existence.”
We therefore should not be overly concerned by the April 18, 2016 ruling of the BC Court of Appeal that the Charter does not protect university students’ free expression rights on campus, in BC Civil Liberties Association and Cam Côté v. University of Victoria.
This case arose in 2013, when UVic withdrew its approval for a peaceful campus event requested by a campus pro-life club, Youth Protecting Youth (YPY). UVic took its instructions from the University of Victoria Students’ Society, a student union with a long track record of active hostility towards YPY. At various times in the past decade, the student union has denied club status to YPY; withheld club funding (given to all other campus clubs); prevented YPY from advertising its events; and had filed bogus “harassment” complaints against YPY.
YPY proceeded to hold its event as previously approved by UVic, by holding signs, handing out pamphlets and engaging other students in discussion. UVic responded by imposing a one-year ban on YPY, which UVic lifted only after YPY commenced a court action.
UVic is a public body exercising a public function, and wielding a monopoly power over granting degrees. A student who is expelled from a university for violating the university’s speech code will find it very difficult, if not impossible, to become a teacher, nurse, doctor, accountant or engineer. As a taxpayer-funded institution created by BC’s University Act to fulfill a public responsibility, UVic is legally obligated to honour free expression on campus as a fundamental Canadian value, apart from the Charter.
Universities should be educating robust, thinking minds. The law should not allow universities to become a lesser and distorted version of themselves.
The BC Court of Appeal made it clear that, in BC, the Charter does not protect the rights of students to express their opinions on campus at UVic and other public universities. However, the door is wide open for students to advance strong non-Charter arguments in defence of their campus free speech rights. The current climate on campus being what it is, it likely won’t be long before students get that chance.
Calgary lawyer John Carpay is president of the Justice Centre for Constitutional Freedoms (www.jccf.ca), which was an intervenor in the BC Court of Appeal in BC Civil Liberties Association and Cam Côté v. University of Victoria.
