The Ontario Government Extends Constitutional Protection to University Encampments

There is an ongoing debate about whether universities, when regulating speech on campus, are subject to the Charter of Rights. The Alberta Court of Appeal, in a 2020 judgment that concerned a prolife demonstration on the University of Alberta campus decided that the university was bound by the Charter and that the students had a constitutionally protected right to engage in protest. However, the courts in other provinces, including Ontario, have reached the opposite conclusion, deciding that the Charter does not apply to a university, even when it is regulating speech on campus. 

However, in Ontario the question of whether the Charter protects protest on university campuses may now have been settled by the provincial government’s recent enactment of Bill 166, “Strengthening Accountability and Student Supports Act”. By involving itself in the regulation of campus speech, the government may have unwittingly elevated protest on campus, including encampments, to a constitutionally protected right. 

The Supreme Court of Canada has said that the Charter only applies to government action – to the actions of the state or its delegates. And so, while an individual may have a constitutional right to be free from state restrictions on their expression, they do not have a constitutional right to be protected from restrictions on speech that are imposed by non-governmental actors. Non-governmental actors may be prohibited by criminal or human rights laws from interfering with the speech of others, but they have no obligation under the Charter of Rights to refrain from such action. 

The line separating state and non-state action is not always easy to draw. In determining whether a particular entity is an extension of the state so that its actions are subject to Charter review, the key question, according to the Supreme Court of Canada, is whether the entity is under the effective control of the government. In a 1990 judgment, the Supreme Court decided that even though universities perform a public function (broadly understood), they are not state actors subject to general Charter review because they exercise significant autonomy in the governance of their affairs. In another judgment decided the same year, the Court also held that hospitals were not government actors. However, the court subsequently ruled that when an institution, such as a hospital, is implementing a specific government program, such as the delivery of health care, its implementation of that program will be considered government action and subject to the Charter. Exactly when this will be the case is not entirely clear, although the relevant factors in determining whether a non-state actor is implementing government policy, include the public nature of the policy and the extent of government oversight of the policy’s implementation. 

A few years ago, the government of Ontario required all universities in the province to establish freedom of expression policies that conformed with the ‘Chicago principles’, which advanced a libertarian approach to expression rights. The province, it appears, was responding to concerns that students and staff with conservative views were being silenced on campus. These policies were to be reviewed by a government appointed body. 

With the enactment of Bill 166 the provincial government has re-joined the issue of free speech on campus. The new law provides, among other things, that all universities must “have policies and rules that describe how the institution will address and combat racism and hate, including but not limited to anti-Indigenous racism, anti-Black racism, antisemitism and Islamophobia”. The law further provides that the Minister of Colleges and Universities may issue directives to one or more universities “in relation to the manner in which their policies and rules address and combat racism and hate …”. The province’s concern seems to have shifted from the protection of free expression to the limitation of expression (and other action) that is discriminatory. 

The consequence of the province’s decision to intervene in the regulation of speech on campus is that Ontario universities may now be viewed as carrying out government policy, and as bound by the Charter, when they regulate campus speech. The government may have unintentionally given to students a constitutional right to protest on campus, which may only be limited for substantial reasons.