An Update On Freedom Of Expression & Charter Application To Universities

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Freedom of expression on campus is not a new issue, but it bubbled up as a hot topic in 2017.
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Freedom of expression on campus is not a new issue, but it bubbled up as a hot topic in 2017.

Although the media may have moved on, the issue of freedom of expression on campus remains as complex and pressing as ever – and it's only a matter of time before the next controversy erupts. In the meantime, universities and colleges have the opportunity to reflect on how they should respond when confronted with situations where freedom of expression may be at issue. This article provides a high-level overview of freedom of expression as a constitutional right protected under the Canadian Charter of Rights and Freedoms, and what courts have said about the application of the Charter to universities.1 Of course, a one-size-fits-all article is impossible given the countless scenarios where freedom of expression—and alleged limits on freedom of expression—could arise in the university or college setting. The law reviewed here cannot be applied in a vacuum but must be analyzed in light of the nuances of each fact situation, and the institution's own policies and procedures. For that reason, readers are urged to contact Stewart McKelvey for assistance with applying the law to freedom of expression in specific situations.


"Freedom of expression" is more than an abstract concept. In Canada, it is a constitutional right, protected under section 2(b) of the Charter of Rights and Freedoms.

Where the Charter applies (which is discussed more below), the scope of section 2(b) protection is expansive. The Supreme Court of Canada has repeatedly said that any activity that conveys or attempts to convey meaning will be protected by section 2(b), except for violence or threats of violence, and subject to reasonable limits.

Section 2(b) can be used to challenge a particular law on the basis that the law infringes freedom of expression and should be struck down. For example, many Criminal Code offences related to obscenity, pornography, and hate speech have been challenged in this manner, sometimes successfully.

Section 2(b) arguments can also be made in more individualized ways. A student could allege that an administrative decision (e.g., to discipline them for a social media post) unjustifiably limited their freedom of expression so should be overturned. Courts in these cases sometimes refer to freedom of expression as a Charter "value" instead of a Charter "right" (even though this may not make a substantive difference), and focus on whether the university has properly balanced freedom of expression against other interests and concerns.


Section 32(1) says that the Charter applies to "government." The cases have extensively debated what, exactly, "government" means for the purposes of Charter application. There is still no universal or definitive answer to whether the Charter applies to universities.

The Supreme Court's 1990 decision in McKinney v. University of Guelph suggested it was unlikely the Charter would apply to universities as "government". Just because a university was created by legislation and received public funds did not mean it was itself government, or under government control. The autonomy of universities from government was a driving factor.

A few years later, the Court seemed to expand the scope of "government" in Eldridge v. British Columbia (Attorney General), to include an entity that was "putting into place a government program or acting in a governmental capacity..."

There are two ways a university or college could be "government" under section 32(1) of the Charter: if it is under government control, or—perhaps the more common option—it is implementing a government program in making the decision or taking the action at issue.

But even if neither category applies, university decision-makers may still be obligated to consider Charter rights, including freedom of expression. This because of the Supreme Court decisions in Doré v. Barreau du Québec and Loyola High School v. Quebec (Attorney General), which suggested that administrative actors making discretionary decisions pursuant to statutory authority—which will include many university administrators—have to determine whether their decisions could limit an individual's freedom of expression and, if so, will have to be able to justify a decision that limits individual Charter rights.

The effect of Doré and Loyola is still a developing and contested area of the law, so administrators are advised to seek up-to-date and particularized legal advice on this issue.


There are two main types of cases where courts have wrestled with freedom of expression issues in the university context. The first category involves cases where a student has been disciplined for 'offensive' comments, including comments made on social media. See, for example, the cases of Pridgen v. University of Calgary, Telfer v. University of Western Ontario, and AlGhaithy v. University of Ottawa.

Another subset of cases addresses access to, and use of, university property for expressive purposes. These cases often seem to involve a university's attempt to limit or prevent anti-abortion demonstrations on campus. This category includes cases like Lobo v. Carleton University, Wilson v. University of Calgary, BC Civil Liberties Association v. University of Victoria, and Grant v. Ryerson Students' Union.

The most principled court decisions examine whether the university has reasonably considered and proportionately balanced freedom of expression against competing interests, regardless of whether the university is technically "government" under section 32(1) of the Charter. A full analysis of the case law is beyond the scope of this article, but administrators are advised to contact Stewart McKelvey if they are interested in how any of these cases might apply on their campuses.


Courts across Canada have reached different conclusions on how, if at all, the Charter right to freedom of expression plays into university decision-making. The benchmarks of reasonableness, proportionality, and balance will hopefully help administrators deal with the next crop of freedom of expression cases. This hot-button issue is not going away any time soon.


1. A list of the secondary authorities consulted for this article is included at the end.


Sarah Hamill, "Of Malls and Campuses: The Regulation of University Campuses and Section 2(b) of the Charter" (Spring 2017) 40:1 Dal LJ 157

Jennifer Koshan, "Face-ing the Charter's Application on University Campuses" (13 June 2012), online: (

Jennifer Koshan, "Freedom of Expression, Universities and Anti-Choice Protests" (3 April 2009), online: (

Michael Marin, "Should the Charter Apply to Universities?" (December 2015) 35 NJCL 29

Michael Marin, "University Discipline in the Age of Social Media" (December 2015) 25 Educ & LJ 31

Dwight Newman, "Application of the Charter to Universities' Limitation of Expression" (2015) 45 RDUS 133

Léonid Sirota, "Ktunaxa: Freedom of Religion and Administrative Law", Case Comment on Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54, online: CanLII Connects (

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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