An unprecedented look at freedom of expression policies on Ontario postsecondary campuses will offer new insights into how governments, universities and administrators understand their roles in protecting those foundational freedoms.
Western Law professor Sam Trosow will explore the applicability of the Charter of Rights and Freedoms on new freedom of expression policies at Canadian colleges and universities. This timely project recently received a $7,000 Social Sciences and Humanities Research Council (SSHRC) Explore Grant, as well as a $10,000 grant from the Foundation for Legal Research.
Last fall, the Ontario government issued a mandate requiring all colleges and universities to prepare a Freedom of Expression Policy; all the institutions have responded.
Trosow’s team has collected and reviewed these policies and is currently working on a comparative analysis of the documents. This analysis, Trosow explained, should show the internal understanding of freedom of expression rights and obligations throughout the Ontario postsecondary sector.
The provincial government will be also be reviewing these policies for compliance with the provincial mandate.
“Universities have long prided themselves on academic freedom and the ability to debate controversial views,” said Erika Chamberlain, Western Law Dean. “Professor Trosow’s research will explore the extent of this commitment.”
Although the Charter guarantees everyone “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication,” Trosow explained, the issue of the application to Canadian colleges and universities is an “unsettled question under Canadian law.”
He noted there has been some question about whether the Charter is directly applicable to publicly supported universities. “There’s conflicting current case law on the issue of whether Canadian colleges and universities are public entities which are subject to Charter limitations.”
He continued, “Where an institution is fulfilling a public purpose, or is carrying out a governmental program or mandate, it’s more likely to be subject to the Charter.”
The research project will look at potential scenarios under which a Charter challenge to the campus policies might arise, for example the denial of campus facilities to a controversial group or speaker or the cancellation of a scheduled program. Issues could also arise over charging unreasonable fees for the use of facilities or the suppression of protests at a controversial event.
“Assuring that members of the university community maintain the right to criticize university or governmental policies can also become an area of contention,” Trosow said.
He added that “balancing the values of freedom of expression with concerns of equity, inclusion and maintaining a respectful learning environment can be especially challenging for campus policy makers.”
In terms of the overall timeliness of his project, Trosow predicts that “since the status of the applicability of the Canadian Charter of Rights and Freedoms is not clear, this legal uncertainty may well come to a head in Canada over the next few years with the prominence and controversy surrounding campus freedom of expression issues.”