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Former student Keith Pridgen is waiting for a decision from the Court of Appeal. Pridgen took the university to court after he was disciplined in 2007 for criticizing a professor on Facebook.
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Students continue freedom of speech fight against U of C

Applicability of Charter of Rights and Freedoms to universities debated in court appeal

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If Keith Pridgen has to work every day for the rest of his life to fight the University of Calgary, he will.

He said these words in an interview last week after hearing the university argue before the Alberta Court of Appeal on Nov. 9 that the institution should not be bound by the Canadian Charter of Rights and Freedoms.

Pridgen is a former U of C student who, along with his brother Steven, was sanctioned in 2008 for posting comments to a Facebook group about a professor at the university.

"What we did was say something that was true about a professor, and the university just didn't like it," Pridgen said. "It simply is absurd that the university is pursuing this and trying to claim that it's not bound by the Charter."

The university is appealing part of a decision made by the Court of Queen's Bench last year that said it infringed on the brothers' rights by disciplining them for their online criticism of sessional professor Aruna Mitra, who was teaching a law and society class for the first time.

According to a statement published in UToday on Nov. 17, although the university "believes in and supports the values espoused in the Canadian Charter of Rights and Freedoms," it doesn't want to have to abide by them fearing that "the autonomous nature of universities is removed-- and we find ourselves as an arm of the government-- then the effectiveness of the learning environment itself may be compromised."

The university, which is backed by the University of Alberta and the Association of Universities and Colleges of Canada, argues that being bound by the Charter will challenge its autonomy and could compromise the learning environment.

"Specifically, the university's credibility in conducting independent research and commenting on public policy matters could be at risk," Charlene Anderson, University of Calgary general counsel, said in the statement.

Pridgen's attorney, Tim Boyle, said this is not the case, as the provincial government already has influence over public universities.

"This we see as a nonsensical argument because under current legislation the government can do anything it wants," Boyle said. "They can put the university into receivership if they want, they can appoint governors, they even have a hand in curriculum development."

The government doesn't require a decision by the court in order to exert its influence on universities, he added.

As part of its case, the university is pointing to a decision made by the Supreme Court of Canada in 1990 that said that the Charter doesn't apply to universities.

Boyle said the U of C is using that ruling to suggest that the Charter never applies to universities. But he argues that in actuality the decision reflects the opposite, that the Charter applies in some but not all instances. "Our position is that the case of student discipline is the most obvious area where the Charter should apply to university governance," he said.

The university shifted its focus to the applicability of the Charter after it was unable to prove that any part of Pridgen's Facebook post was untrue.

Under the Charter, any person in Canada has a number of civil rights, including freedom of thought, freedom of belief, and freedom of expression.

Pridgen's concern is the threat to students' freedom of expression, particularly when it comes to fair comment. "It is really shocking to me. It still blows my mind that in 2007 I took a course with a professor who was terrible and I wrote it," Pridgen said. "I told people things that were true and I was given two years of academic probation.

"The university is supposed to be a place where freedom of speech is not only tolerated, but also encouraged," he said.

The university also said the Pridgen case brought attention to the need for amendments to its non-academic misconduct policy, which was most recently revised last month.

According to the U of C, improvements to its disciplinary policy include centralizing non-academic misconduct procedures in order to make them consistent for all students across campus and allowing for decisions made under the non-academic misconduct policy to be appealed.

But Boyle argues that the university's changes to the policy are insidious and will allow for control of the attitudes and behaviours of students, even when they are not on campus.

For example, the entire disciplinary process is now overseen by the office of the provost. "The structure of the new system they have, in my view, is completely antithetical to the principles of natural justice and procedural fairness," Boyle said. "If you had one body acting as police, prosecutor, judge and court of appeal, you would probably realize that's not a very good system. That's what the university has right now in its internal disciplinary process."

U of C Students' Union vice-president academic Ola Mohajer has also expressed concern regarding student representation on the committees involved in handled non-academic misconduct at the university.

The Students-At-Risk Evaluation Team, which responds to students who face a significant disciplinary sanction and whose physical or mental state may threaten themselves or others, does not include a student representative.

"If a student is brought to the Students-At-Risk Evaluation Team and there isn't anyone there to bring the student perspective, it can be quite scary for a student who has been accused to stand before a committee they may feel is not understanding of their perspective," Mohajer said.

A student representative does sit on the Appeal Board, to which students can contend disciplinary action, but Mohajer said the process through which that student is selected needs greater clarity.

"The way the student representative is chosen has not been made transparent to me when I've asked," she said, adding that she has voiced her concerns and that she is awaiting the result, as the non-academic misconduct policy is currently under review.

Mohajer expects to see a first draft of the review by the end of the academic year.

In the Pridgen case, the justices have up to one year to release their decision.

Pridgen, who graduated from the U of C earlier this year, said the experience has made him more aware of the potential for free speech to be "quashed" at Canadian universities.

"This is not about me, not about my brother, or about other students in the class," Pridgen said. "This is about students all across Canada being able to express themselves freely."

Correction: In a previous version of this story we stated that Tim Boyle, the Pridgens' lawyer, said that the Canadian government already has control over universities. Boyle, in fact, stated that the provincial government has such control. Also, we wrote that in 1990 the Supreme Court of Canada ruled that the University of Guelph was in violation of the Charter, when in fact the Supreme Court ruled that the Charter didn't apply to universities. Sorry.

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