Canada: New Challenges To Free Speech On Campus

Last week the new provincial government announced its intention to require Alberta post-secondary institutions to enact policies about free speech on campus. While no specific proposals were released, and the Minister of Advanced Education said he intends to engage in consultation before implementing any legislation, the general direction of the government’s initiative can be gleaned from Ontario’s recent experience, as well as a proposed Alberta bill floated by the Justice Centre for Constitutional Freedoms (JCCF).

In 2018 Ontario’s Ministry of Training, Colleges and Universities issued a letter requiring public post-secondary institutions to develop policies defining freedom of speech, as well as forbidding the institution from discriminating against any viewpoint that might be expressed on campus, and preventing student protest that would “obstruct or interfere with the freedom of others to express their views.” Complaints about free speech issues would be handled by existing institutional processes. If institutions failed to develop the policies, or did not follow them once implemented, the Ministry could “respond with reductions to their operating grant funding, proportional to the severity of non-compliance.” In response, despite concerns about interference with institutional autonomy, all of Ontario’s public post-secondary institutions developed policies that generally reflected the requirements.

The JCCF’s proposed Alberta bill would amend the Post-Secondary Learning Act (PSLA)  and introduce new legislation, An Act to Protect Free Expression at Alberta’s Public Colleges and Universities. Under the bill:

  • Freedom of speech on campus would be defined and guaranteed. The freedom would apply in all common areas, including to invited speakers. Speech would be protected so long as it does not infringe the Criminal Code provisions on hate speech. (In contrast, Ontario’s proposal merely states that “Speech that violates the law is not allowed”). 
  • Institutions would be required to be “viewpoint-neutral” in enforcing all policies affecting freedom of speech on campus.   
  • Institutions could not require student groups to pay security costs (but they could require student groups who are protesting such speech to pay security costs).
  • “Disruptive activities” would be forbidden, including student protests of speakers which create “disruption, interruption, obstruction, blockading, shouting, theft, vandalism, violence, threats, the activation of a fire alarm in the absence of fire, [and] the production or creation of loud or disruptive noise.”
  • Complaints about free-speech issues would not be addressed exclusively through institutional processes. Rather, they could be investigated by the Minister, or a newly-established “independent council” (reporting to the Minister). The Minister and Council could levy fines against institutions for non-compliance up to $50,000 for the first violation and $100,000 for subsequent violations. In addition, as in Ontario, failure to implement and enforce a policy could “result in the college or university receiving no Government of Alberta funds.” 

The proposed amendments to the PSLA would define free speech and formally require post-secondary institutions to create policies which reflect the Act to Protect Free Expression at Alberta’s Public Colleges and Universities. In addition, institutions would be required to hold mandatory training for most members of the campus community, including “members of the college’s or university’s governing board or council,” “other senior or executive administrators”, “faculty members”, “security staff”, “all staff in the areas of student relations and student advocacy”, “all students holding elected positions with the college or university's student association, if any student association exists”, and “all new students upon enrolling at the college or university.”

If passed, the proposed legislation would significantly affect institutional autonomy. Alberta’s post-secondary institutions would be required to develop, implement, and enforce policies dictated by government. Institutional restrictions on unduly provocative, false or abusive speech would be curtailed. Speech devoid of intellectual integrity would be protected. Existing complaint processes would need to be reviewed and appropriate training programs and materials created. More broadly, the proposed legislation might have the effect of making post-secondary institutions “governmental” and therefore subject to the Charter in the context of speech issues on campus.

Post-secondary institutions should consider whether this initiative respects institutional autonomy and the academic mission of the institution, whether any specific proposals are compliant with the Charter, and the nature of the submissions that should be offered during the Minister’s consultation process.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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