Freedom Of Expression In The Classroom

This morning, the Alberta Court of Appeal will hear arguments on the Pridgen case. As discussed in yesterday's post, Pridgen rests on the issue of freedom of expression on campus and whether non-academic misconduct resulting from Facebook postings criticising an University professor was a justifiable restriction under the Charter. If, however, we tweak the case and re-imagine it, we come up with a different, yet related, freedom of expression dilemma: the expressive rights of teachers in a classroom.

The discussion will not refer to Keegstra or Ross, who through their expression promoted discrimination and hatred. Instead, the discussion will be about Mr. Morin, an untenured and untested teacher at a Prince Edward Island Junior High School. Mr. Morin's first year of teaching goes by smoothly and uneventfully and he is contracted to teach again. His second year, however, is much more controversial.

One evening, Mr. Morin watches a PBS documentary entitled "Thy Kingdom Come, Thy Will Be Done" and he is devastated. The raw documentary exposes the corrupt side of the fundamental Christian movement of the late 80s and its connection to American politics. Much of the documentary focuses on the scandal-ridden Jimmy Bakker, his wife Tammy Faye, and the PTL Church.

Mr. Morin sees a teaching opportunity in the documentary and decides to show the film to his grade 9 class in connection to a writing assignment on "What Religion Means To Different People." After the viewing of the documentary in class, the Principal receives complaints and directs Mr. Morin to stop the assignment. Mr. Morin will take his right to express himself in the classroom all the way to the highest Appeal Court in his province, and he will do it on his own and without the benefit of counsel.

The PEISCAD (PEI Appeal Court) agreed with Mr. Morin, although not unanimously. The majority of the Court, found expressive content in Morin's assignment, consistent with the Supreme Court of Canada's liberal interpretation of the freedom of expression under the Charter. Moreover, the right involves not only the teacher, who is expressing viewpoints in an effort to exchange and stimulate "opinions and ideas," but involves the students' right

in a democratic society to have access to free expression by their teachers - encouraging diversity, critical thinking, and vigorous debate ... students have a right to hear this expression and benefit from it...this right of students is fundamental to their being citizens in a truly democratic state and students of that states' educational system.

The right of a teacher, therefore, to express himself transcends the classroom and is elevated, thereby becoming a core concept of our society's fundamental values as reflected and protected by the Charter.

As we grow older and look back on our education, we recall those teachers who taught us without fear or prejudice. Thank you, Mr. Morin for reminding us.

The Pridgen Case and Freedom of Speech On the Canadian Campus

Tomorrow, the Alberta Court of Appeal will hear arguments on the Pridgen case. The issue involves the use of Facebook postings to criticize a University of Calgary professor, contrary to the student code of conduct. In the lower court case, Madam Justice Strekaf considered whether the subsequent finding of non-academic misconduct by the Pridgen brothers was a violation of freedom of expression under s.2(b) of the Charter. Ultimately she ruled there was a violation and the restriction could not be justified under s.1 of the Charter.

The issue of freedom of speech on campus is troubling. Universities are seen as the defender of academic independence and the protector of free thought. Through this freedom, critical thought is created, nourished, and encouraged. Innovation and excellence is the by-product of free thought. To restrict it, results in a withering effect and a loss of free debate on controversial issues. Thus, there is a societal interest in protecting free expression on campus. Our democratic tradition demands it.

On the other hand, as mentioned in previous posts, freedom of expression is not absolute under our Canadian Charter. Speech can be restricted but only if justified in a free and democratic society. There have been campus cases where Facebook postings were restricted justifiably. Those cases, however, involved threats of harm attracting Criminal Code sanctions. In contrast, the Pridgen case involved no threats and there was no evidence of resultant "injury" before the discipline council. Certainly, the comments were unkind, but were they the kind of expression we want to restrict on a University campus?

The answer will be left to the Court on Wednesday when the freedom to express oneself on campus will be tested. We will await the decision to see if the Pridgen brothers receive a pass or a fail.

Part Two: Occupying Public Space

Yesterday, I outlined the tension between the City and the Occupy movement over the tent city erected in the City's public spaces. Although, municipal legislation prohibts the camp, it has, to this date, not been enforced. Why? Initially, no doubt, the thought was occupy Calgary would make their point and move on. No "strong arm of the law," means no trouble. Unfortunately, that tactic has proven to be wrong. The Occupy movement has no plans to move their campsite, even in the face of declining public support (petitions) and despite alternative offers of living space. It appears a Western style show-down is inevitable and the only question is how soon before the matter is before the Courts. 

What would happen if the matter did go before the Courts? Two cases, involving protest in two very different Canadian Cities, may help answer this question.

First we go to Ottawa. It is 1994 and a Peace Camp, to protest cruise missile testing, is erected on the lawn of the Parliament building. Indeed, the protesters had a presence, in one form or another, in front of Parliament since 1983. An attempt to dismantle the camp led to various court actions. At the heart of the debate was the expressive quality of the protest: if the Peace Camp attempted to convey or did convey a meaning, then, Weisfeld the leader of the protest, could argue an infringement of s. 2(b) of the Charter, freedom of expression.

The Federal Court of Appeal agreed with Weisfeld: the structure, and the presence of other accouterments of the protest (brochures, pamphlets, signs, and the like), indicated there was a meaning conveyed by the Peace Camp itself. However, as discussed yesterday, the decision does not rest on a violation. An infringement of a right still requires a further analysis based on s. 1 of the Charter. Is this violation justified in a free and democratic society? Enter, the government to establish that indeed, it is, or the legislation restricting the right is invalid. The end result in Ottawa was a save by the government. On the s.1 analysis the removal of Weisfeld was justified. Exit the Peace Camp.

Fast forward fifteen years to Vancouver where the Falun Gong erected banners and a "make-shift shelter" in front of the Chinese Consulate, contrary to a City By-law. The City sought an injunction to remove the protest, which was granted. The Falun Gong appealed to the British Columbia Court of Appeal.

Following Weisfeld, the Court agreed there was a violation of s.2(b) as the structures had expressive content being "part and parcel" of the Falun Gong protest. That is where the similarities end. The BCCA did not find the bylaw saved under the s.1 analysis. In the Court's view, the prohibition did not minimally impair the legitimate right to engage in political protest; a cherished Charter value residing at the very core of our democracy. In a word, the by-law was over broad and captured legitimate forms of expression.

After that Canada-wide tour, we are now back in Calgary. What conclusions can we draw based on these other cases? Clearly, the occupy protest has an expressive quality which is protected by s.2(b) of the Charter. However, whether the City ordinance will be a justifiable intrusion on that right is questionable and dependent on a number of factors, including the type of evidence the municipality will proffer to justify the legislation.

Whatever the outcome, this much is clear, the protesters are here to stay for the near future. Indeed, no Canadian City has successfully evicted the movement. In the end, when the dust is settled and the shoot-out is over, this gun-fight might just be a draw.

Freedom of Expression: Occupying Public Space Part One

For weeks now, we have been inundated with the details of the Occupy movement. We know where they are, what they are protesting about, and in this age of technology, we can watch them on our computers. We can also watch the City authorities walk in circles as they try to avoid clashing with the protesters. Some cities have not avoided harm: Occupy Oakland is a good example. But other cities, like Calgary, have tried to give the Occupy movement a wide berth. Unfortunately, patience is now wearing thin with the municipal authorities, the press, and the public, as Occupy Calgary refuse to leave the public space provided to them. This has all the ingredients of a classic Western show-down. 

On the one hand, we have the Charter right of s. 2(b) freedom of expression and on the other, municipal by-laws prohibiting camping in public parks. Up to now, the City has not enforced the by-law and allowed the Occupy movement to inhabit the public space (Canada Olympic Plaza in downtown Calgary). But as the authorities begin to consider ending the occupation, the show-down between the Charter and the City looms. 

This conundrum is, of course, typical Charter fodder: a fundamental freedom is violated and the government must establish the intrusion is justifiable in a free and democratic society under s. 1 of the Charter. In this, our Charter differs dramatically form the American Constitution as our rights are guaranteed yet limited under the Charter : no rights are absolute, yet the s.1 analysis is rigorous. The analysis requires the right to be minimally impaired by the legislation, to be proportionately restrained, and the limit must have a rational connection to the valid legislative purpose of the law. It is a balancing act, which may lead to legislative death but it can also lead to legislative discourse between the Courts and the government. This dialogue can assist in re-framing legislation, which fulfills its objective, but in a Charter friendly manner.

Thankfully, we Canadians are not protest-shy and there are legal precedents to help guide the Occupiers and the Municipal landlords. Join me in tomorrow's post, as I navigate us through the legal side of the issue by looking at Ottawa and Vancouver.

The Road Taken by the Supreme Court of Canada

The Supreme Court of Canada, this Fall has already released a number of important judgments. The PHS Community Services Society decision on Ministerial discretion, or lack thereof, under s.56 of the CDSA for an exemption of a safe injection site in Vancouver is one such case. Another, is the Crookes v. Newton case in which the Court described a hyperlink in a website article as a reference and not a defamatory publication. 

The Court has also heard and reserved on some controversial cases such as the Whatcott case involving the constitutionality of the hate speech provisions in the Saskatchewan Human Rights Code. Whatcott is a good example of the difficult issues found in a Charter case involving conflicting fundamental freedoms as the freedom to express competes with freedom of religion. Not unusually with these conflicts, there is rarely a clear winner. As Ronald Dworkin, an American constitutional scholar, would say, one right does not "trump" another. For our rights in Canada, although guaranteed, are limited within the Charter itself. Ever reasonable, we Canadians prefer the balanced route, the road taken so to speak.

For tomorrow's blog we will be "taking rights seriously" as I speculate on the case the SCC has not yet heard, but should, and possibly, will.