Freedom of Expression & Its Limits

In spring 2024 student encampments at Canadian and US universities provoked strong reactions for and against pro-Palestinian demonstrations on campus property. While some Canadian universities called in police to disperse demonstrators, others looked to the courts for injunctions compelling students to disperse and abandon their encampments.

CFE/CAUT/CFS(O) Intervener Factum – Ontario Superior Court. The issue is whether the University of Toronto’s request for an injunction should be granted against the encampment on campus. The factum argues the University’s common law rights as “fee simple owner” of its property are not unlimited or absolute and do not pre-empt or extinguish the Charter freedoms of those using its property for expressive purposes, as are members of the encampment. It further argues that the Province of Ontario’s decision in 2018 to regulate campus expression transformed an area of autonomous university governance into one of Ministerial regulation and control, making the University’s actions in relation to freedom or expression and freedom assembly subject to the Charter. It also argues against the claim that immunity from the Charter is necessary to protect academic freedom. To the contrary, they are complimentary values.

In an open letter today to the members of the House of Commons Standing Committee on Public Safety and National Security, the Centre for Free Expression and 13 other civil society organizations expressed their deep concerns with the speed with which Bill C-70, the Countering Foreign Interference Act, is currently being rushed through the legislative process.

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. 

On Thursday, Calgary Police forcibly dismantled the pro-Palestine encampment at the University of Calgary within hours of its formation. Those who advocate the same tactic at other Canadian universities, including University of Toronto, argue that an encampment is not a legitimate form of protest because it is disruptive and occupies space that should be open to all. A columnist in the Globe & Mail even argued that the encampment is not a form of expression and thus deserves no protection. 

CFE Motion Record for Leave to Intervene – Supreme Court of Canada The issue in this appeal is whether Ontario Bill 307’s amendments to the Election Finances Act violate the informational element of a citizen’s right to vote under s. 3 of the Charter. Bill 307 re-enacted third-party spending limits that were declared invalid under s. 2(b) of the Charter, and invoked s. 33 to protect those spending limits from Charter review. The question in this appeal is whether limits on third party spending that are unconstitutional under s. 2(b) are also an unjustifiable violation of s. 3 which cannot be overriden by s. 33.