September 2012
This week, in the case of Pridgen v. University
of Calgary, the Alberta Court of Appeal affirmed that the Charter of Rights and
Freedoms protects the free speech rights of university students on campus.
The case arose from a Facebook page called, “I
no longer fear hell, I took a course with Aruna Mitra,” wherein some U of C
students described their “Introduction to Legal Studies” professor as inept,
awful and “illogically abrasive.” When students on the site compared the marks
they received on an assignment, Steven Pridgen wrote: “Somehow I think she just
got lazy and gave everybody a 65 … that’s what I got. Does anyone know how to
apply to have it remarked?”
Many students in the class appealed their
grades, and all succeeded in getting a higher grade. Eight months after the
course was concluded, Keith Pridgen (Steven’s brother) wrote on Facebook that
Mitra was no longer teaching at the University of Calgary: “Remember when she
told us she was a long-term prof? 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.”
The University of Calgary prosecuted the 10
students who had joined the Facebook page, and found all of them guilty of
“non-academic misconduct”— including students who had not posted any comments.
The university accused the students of defaming
Mitra with “unsubstantiated assertions,” yet refused to hear any evidence from
the students about the professor. Nobody testified to deny that the professor
had asserted, bizarrely, that Magna Carta was a document written “in the 1700s
for native North American human rights purposes.”
The University of Calgary threatened the Pridgen
brothers and the other eight students who’d joined the Facebook page with
expulsion if they failed to write an abject letter of apology.
Having been found guilty of non-academic
misconduct, Keith and Steven Pridgen took the university to court, which
declared in 2010 that, “the university is not a Charter-free zone.” That
judgment was upheld this week by the Court of Appeal.
While the ruling is a victory for the
free-speech rights of university students, it is disheartening that the
University of Calgary needs a court order to compel it to fulfill its own
mission statement: To promote free inquiry and debate.
Ironically, the university argued that it had a
legal right to muzzle the Pridgen brothers and other students in order to
preserve academic freedom. In response, Justice Marina Paperny noted that
academic freedom and freedom of expression are inextricably linked. Both serve
the same goals: “the meaningful exchange of ideas, the promotion of learning and
the pursuit of knowledge.”
Some will decry the Charter’s protection of
campus free-speech rights as more government control over universities. But this
complaint ignores the reality that the Charter merely follows government into
domains — such as health care and post-secondary education — that the government
has first taken over through legislation, regulation and funding.
Which is to say: The Charter follows the
government’s expansion into new realms; it does not cause it. In these realms,
the fundamental freedoms guaranteed by the Charter — religion, conscience,
expression, association — serve to protect individuals from the abuses of
administrators whose power stems, in large part, from government.
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.
Calgary
lawyer John Carpay is president of the Justice Centre for Constitutional
Freedoms, which defends the free speech rights of all Canadians.
National Post, May 11, 2012.
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