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Universities as state actors | Barry Bussey

Thursday, January 23, 2020 @ 10:27 AM | By Barry W. Bussey

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Barry Bussey
Recently, the Alberta Court of Appeal made a momentous decision (UAlberta Pro-Life v. Governors of the University of Alberta 2020 ABCA 1) that the University of Alberta is subject to the Charter. Until now, public universities were thought to be private entities, not government actors.

Indeed, s. 32 of the Charter explicitly states the Charter applies only “to the Parliament and government of Canada” and “to the legislature and government of each province” regarding all matters within their respective authority. Public universities somehow slipped between the cracks, but with this decision that has changed — at least for Alberta universities.

It is as seismic a shift as it is ironic, given the pretentions of enlightened universities to upholding “Charter values.” The University of Alberta, for instance, argued in this case that it conformed “with s. 2(b) of the Charter without being obliged to do so” (para. 119). Such a claim is the ultimate form of virtue signalling. The message is: “look at how magnanimous we are in our voluntarily support of the Charter and ‘Charter values.’ ”

But, when push comes to shove and corporate interests are at stake — like having to face litigation by those aggrieved over an alleged Charter violation — the university is not so committed to the Charter that it feels any duty to accommodate the fundamental freedoms of its students, nor to explain why its actions were a reasonable limit on the Charter right at issue. Instead it pulls out its legal shield engraved with the excuse: “We are not subject to the Charter!”

This virtuous dance, if we may call it that, is disingenuous. But it is also strategic: The university remains free to claim the glory for being “Charter compliant” without the worry of ever being found non-compliant. It is reminiscent of the “stolen valour” machinations of the non-military person wearing a uniform on Remembrance Day and basking in the glory of soldiers who risked life and limb on the battlefield for the cause of country: honour without risk.

The Court of Appeal, in my opinion, made the right call. Universities created, funded and regulated by government, and with government-designated appointees on their boards, ought to be recognized for what they really are: government actors. It makes no sense to call a public university, like the University of Alberta, a nongovernment actor any more than it would make sense to call the not-for-profit Crown corporation Alberta Electric System Operator (AESO) a nongovernment actor. If it walks like a duck and quacks like a duck, as the saying goes, chances are it is a duck.

Universities have traditionally been places where society’s brightest minds come together to seek truth for truth’s sake. Pursuing the unknown requires an open mind. Knowledge alone is not the goal, but rather wisdom on how to apply that knowledge to make the world a better place. That is why the reflections and arguments of generations long past can be relevant even today.

Any contentious issue, like abortion, will inevitably generate both support and opposition. Once (at least in theory) those positions could be discussed and debated in the pursuit of truth and wisdom. Increasingly, however, it appears that socially conservative viewpoints on morality are being silenced, even in settings (like institutions of higher learning) which ought to promote open inquiry and critical thinking. Instead of dialogue and diversity, we now see conformity.

The case at hand began in 2015, when the university allowed a student group, UAlberta Pro-Life, to set up an educational display of unborn babies who were aborted at various stages of gestation. The group believed that the gruesome images were necessary to convey the appalling reality of abortion.

Protesters were enraged and, in their efforts to blockade the exhibit, ignored the designated areas set apart by campus security. The next year, when the pro-life group applied to present the same provocative display, the university’s permission was conditional on the payment of $17,500 for security costs. That prohibitively large fee, for a student-run club, was an effective muzzle on unpopular expression.

The court saw the fee for what it was: a form of “heckler’s veto.” It said the fee “escalated the status of potential objectors to not merely being on par with the expresser, but above the expresser’s position” (para. 183). In other words, the university did not take the neutral position one would expect of an institution protecting Charter rights. Indeed, the university argued that the pro-life display was “designed to be controversial” and to “evoke a vigorous and emotional response” (para. 185). Of course, any view at odds with the majority view is controversial. That is why freedom of expression exists and ultimately why the Court of Appeal decided the way it did.

The decision is a boon for freedom of expression and has set the course for an ultimate showdown on the issue of whether public universities are indeed government actors. (By the way, I suspect, and indeed hope, that the case gets before the Supreme Court of Canada to settle the matter). Nevertheless, I am sorry that the concurring justices of the Court of Appeal did not affirm Justice Jack Watson’s views (paras. 120–23) that freedom of expression pre-existed the Charter.

In my view, this case was a great opportunity to remind the legal profession, and Canadians in general, that the world of rights did not simply begin with the proclamation of the Charter in April 1982. Rights have a long philosophical and political history, and the Charter stands on the shoulders of that heritage.

We need to be reminded of that legacy from time to time. Even as society changes and evolves, the wisdom of the past may help guide us towards a more productive future where open, respectful dialogue and free expression spurs us on in the quest for truth.

Barry W. Bussey, PhD, is director, legal affairs at Canadian Council of Christian CharitiesThe views expressed are personal and do not necessarily reflect those of his employer.

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