Thursday, May 10, 2012

The Charter & Freedom of Expression on Canadian University Campuses - Stay Tuned

The Alberta Court of Appeal just released a very important decision yesterday  about academic freedom, universities and freedom of expression that appears very likely destined to find its way to the Supreme Court of Canada. The case is Pridgen v. U. of Calgary  2012 ABCA 139.

It involved a widely reported incident in which students were disciplined for making very unflattering comments on Facebook about a particular lecturer. There were severe problems in the procedure used to discipline the students. The Alta. Court of Appeal has just released a judgment confirming that the disciplinary proceedings should be quashed on purely administrative law principles.

However the main judgment by Paperny, J.A. has some resounding language about the Charter. The other two judges concurred in the administrative law result quashing the disciplinary ruling – but wrote that it was not necessary to decide the Charter issue in this instance.

So – according to Justice Paperny, the Charter generally and “freedom of expression” in particular applies on university campuses in Canada. This might have become an issue if the current Access Copyright board case were to have played out in the normal way at the Board. It would have been interesting to see how AUCC would have dealt with it. However, AUCC’s withdrawal and abandonment of its dissatisfied members in the Copyright Board hearing may prevent this from airing.

At the recent Fordham conference in NYC, I was on a panel dealing with fair use/fair dealing in which there was very intense interest between the interplay of “freedom of speech” as the Americans call it and “freedom of expression” as we call it on the one hand and copyright law on the other. The battle over the interplay is likely only just beginning.

Here are a couple of the key paragraphs from Justice Paperny’s reasons:

[122] One can no longer maintain a pastoral view of university campuses as a community of scholars removed from the rest of society. This does not mean that a university should not be able to direct its own affairs, certainly in academic matters, free from government interference. It should. Respecting Charter rights in disciplining students will not, in my view, inhibit it in the exercise of that institutional independence or the exercise of academic freedom. Rather, it will promote the institution as a place of discourse, dialogue and the free exchange of ideas; all the hallmarks of a credible university and the foundation of a democratic society. 

VI. Conclusion[128] The Canadian Charter of Rights and Freedoms applies to the disciplinary proceedings undertaken by the University. The decision of the Review Committee failed to take into account the Pridgens’ right to freedom of expression under the Charter. The decision breached the Pridgens’ freedom of expression and cannot be saved by section 1. Moreover, the Review Committee’s decision was unreasonable from an administrative law perspective. The decision of the chambers judge to quash the Review Committee’s decision is upheld and the appeal of the University is dismissed.


  1. You are suggesting that it's ok to override copyright in the name of freedom of expression? How far do you think it can encroach?

  2. The test is actually the other way around: how far is copyright permitted to infringe on a Charter right?

  3. Oh, I don't think so because the failure to protect copyright would clearly infringe the Charter.