That’s Right

A couple of blog posts published over the holidays seem to confirm that two Canadian appellate decisions about which I posted recently are right―not necessarily as a matter of law, about which the posts don’t tell us much―but at least as a matter of policy. I thought they’re worth pointing out.


First, at Concurring Opinions, Gaia Bernstein writes about the unintended consequences of the prohibitions on anonymous sperm or egg donations, which the BC Court of Appeal, in a decision on which I commented hererecently refused to elevate to the rank of a constitutional requirement. According to Prof. Bernstein, her research shows that

three jurisdictions, which prohibited donor gamete anonymity[,] Sweden, Victoria (an Australian state) and the United Kingdom …  share dire shortages in donor gametes accompanied by long wait-lists. The study concluded that although prohibitions on anonymity were not the sole cause of the shortages, these prohibitions definitely played a role in their creation.

Her more recent research looks at “the potential effect of the adoption of prohibitions on anonymity in the United States on the practice of surrogacy.” Because of the peculiarities of the legal regime surrounding surrogacy in the United States, surrogacy is more dependent on donor eggs there than in many other countries. So “[t]he adoption of prohibitions on anonymity in the United States could destabilize the practice of surrogacy in a way that did not occur in other countries that adopted these prohibitions.” (Prof. Bernstein explains why―there’s no point in my reproducing her argument here.)

Now I don’t know whether the legal regime for surrogacy is in Canada, or rather in the various Canadian provinces (I seem to remember from discussions with friends who do know that there might be differences, especially between common law provinces and Québec) is like that of the United States. But what I can tell is that it is another variable that ought to be taken into account when crafting the rules on donor anonymity, and that the process of judicial review, during which such “side” issues are often, perhaps inevitably, obscured. So it is for the better that the issue of anonymity is left to the legislatures. As I wrote in my earlier post, I also think that the law does not require the contrary conclusion.


The second post is by Jonathan Hafetz at Balkinization. Prof. Hafetz writes about a case, The People v. Morales, in which the New York Court of Appeals reversed the convictions for terrorism of members of a gang responsible for a shooting in which a child was killed and another bystander suffered horrible injuries. New York’s law defined terrorism as the commission of one of a range of offences with the “intent to intimidate or coerce a civilian population, influence the policy of a unit of government by intimidation or coercion, or affect the conduct of a unit of government by murder, assassination or kidnapping.” On the face of it, this might include gang violence, but that would be a very broad interpretation and the Court rejected it. As prof. Hafetz writes,

While [treating gang violence as terrorism] might enhance prosecutorial power, it could undermine other law enforcement efforts to reduce gang activity, which often involve a combination of traditional criminal sanctions and gang-prevention programs … At the same time, treating gang violence as terrorism would alter collective understandings of the type of acts—the deliberate and ideologically motivated targeting of the civilian population—viewed as terrorism, potentially diluting the exceptional stigma attached to those acts and undermining public support for anti-terrorism efforts generally.

This suggests that it is well that the Supreme Court of Canada, in its recent decision in R. v. Khawaja, 2012 SCC 69, about which I wrote here, refused to declare unconstitutional the “motive clause” in the Criminal Code’s definition of terrorism, which provides that in order to be considered terrorism, an “act or omission” must be “committed in whole or in part for a political, religious or ideological purpose, objective or cause.” While Mr. Khawaja argued that the motive clause would in effect give excessive powers of ideological surveillance to law enforcement agencies, what it really does is to limit their power by making it impossible to do what the New York prosecutors tried to do and treat “ordinary” criminal violence, however serious, as terrorism. A case such as Morales would simply not have been possible under the Criminal Code―thanks to the “motive clause.” Good thing that the Supreme Court let it stand.

Anti-Terrorism Act Upheld

In a unanimous decision by the Chief Justice, the Supreme Court has today upheld the constitutionality of the anti-terrorism provisions of the Criminal Code, enacted after 9/11 as the Anti-Terrorism Act, S.C. 2001 c. 41. The case is R. v. Khawaja, 2012 SCC 69. In addition to  constitutionality of the provisions in question Mr. Khawaja also raised issues relating to their application in his case and to the appropriateness of the stiff sentence (simplifying, life imprisonment and no possibility of parole for 10 years) which the Court of Appeal for Ontario had imposed on him. I will only deal with the constitutional issues in this post.

Two arguments were raised in support of the claim that the anti-terrorism provisions were unconstitutional. The first, which Mr. Khawaja had made at first instance but abandoned on appeal, but which was raised by the appellants in a companion case, Sriskandarajah v. United States of America, 2012 SCC 70, and which the Supreme Court considered in Khawaja for the sake of completeness, was that the Criminal Code‘s definitions of terrorist activity and participation in terrorist activity were overbroad. The second was that it created a chilling effect which infringed the freedoms protected by s. 2 of the Canadian Charter of Rights and Freedoms, especially freedom of expression.

The Court rejected the overbreadth claim after some clarification of the anti-terrorist provisions’ scope. The appellants in Sriskandarajah argued that they would “capture[…] conduct that does not contribute materially to the creation of a risk of terrorism, such as direct and indirect participation in legitimate, innocent and charitable activities carried out by a terrorist group” (par. 42). Criticism, or worries, along these lines had also been expressed by academics. But, the Court noted, the definition of support for terrorism includes requirements that such support be knowing and “for the purpose” of enabling or facilitating terrorism. It also took the view that “Parliament did not intend for the provision to capture conduct that creates no risk or a negligible risk of harm” (par. 50). Worries that people taking part in peaceful protests or, say, lawyers defending terrorism suspects, could be accused are thus unwarranted. While the provision is broad, it is not disproportionate to “the objective of preventing the devastating harm that may result from terrorist activity” (par. 62).

The second argument against the constitutionality of the Criminal Code’s definition of terrorism  was that defining terrorism by “a political, religious or ideological purpose,” as s. 83.01(1)(b)(i)(A) of the Code does, aims at restricting citizens’ freedoms of expression, religion, and association or will have a chilling effect on the exercise of these freedoms. The Court focuses on freedom of expression. It points out that violence, however expressive, is not covered by the Charter‘s guarantee of freedom of expression. Nor, it says, are threats of violence. The Criminal Code‘s definition of terrorism mostly captures acts or threats of violence, and to that extent they are unquestionably constitutional.  The only potentially problematic aspect of the definition is that it includes disruptions of essential services and systems, except as a result of protest not intended to cause harm to life, health, or property. At least for the most part, says the Court, this too concerns acts or threats of violence; if a future case reveals that this provision can capture non-violent expressive activity, this conclusion can be revised on its facts. As for chilling effect, the Court concludes that it is not a justified worry. There is some dispute over how chilling effect can be established―are logical inferences enough, or does there have to be evidence? The Court says that an inference may be enough in some cases―but not here. For one thing, a finding of chilling effect has to be based on a correct understanding of the impugned provision. And once it is understood that the definition of terrorism only encompasses acts or threats of violence, there is no ground to fear that it will be applied to non-violent expression. For another, if it appears that law enforcement uses the provision for biased profiling activities, then it is these, rather than the law itself, which will need to be challenged.

Sounds sensible to me.

What You Don’t Know

The BC Court of Appeal delivered an important decision this week, holding that the Charter does not protect the right of persons conceived with donor sperm (or egg) to “know their past”―that is, to know the identity and medical and social history of the donors whose biological offspring they are. The decision is Pratten v. British Columbia (Attorney General), 2012 BCCA 480. The plaintiff argued that legislation which allowed people who had been adopted to obtain this information, without making similar provision for “donor offspring” such as the plaintiff, was a violation of her equality rights protected by s. 15(1) of the Charter. She also argued that the “right to know one’s past” was protected by s. 7 of the Charter. The Court of Appeal rejected both these claims.

The ruling has been criticized: over at The Court, Nikita Rathwell blames the s. 7 holding on the courts’ “usual timidity,” while writing in the Globe and Mail, Juliet Guichon, a professor of medicine at the University of Calgary, calls it “an ignoble step backward.” But as a matter of law, I think it is exactly right; indeed, this case demonstrates the limitations of judicial review as a means of changing social policy.

The trial judge found that donor offspring face a number of problems due to not knowing the medical history of their biological parents. It is more difficult and takes longer to diagnose medical conditions from which they suffer. And the gaps in their identity and history cause them anxiety, frustration, and other psychological difficulties. They also “commonly, and legitimately, fear inadvertent consanguinity. ” (par. 17). Their situation is essentially similar to that of adoptees. These findings were not challenged on appeal. The government’s argument was rather that they were not constitutionally problematic.

The first issue is that of s. 15 of the Charter. S. 15, on the one hand, prohibits discrimination on the basis of a number grounds, such as race, age, gender, etc., and other similar ones (subs. 15(1)).  On the other, it explicitly authorizes “any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups” (subs. 15(2)). And as the Supreme Court held in R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483, at par. 41,  subs. 15(2) means that

[a] program does not violate the s. 15 equality guarantee if the government can demonstrate that: (1) the program has an ameliorative or remedial purpose; and (2) the program targets a disadvantaged group identified by the enumerated or analogous grounds.

The parties agreed, as did the Court, at least for the sake of argument, that “manner of conception” of an individual is one of those similar and thus protected grounds. But while the plaintiff contended that allowing adoptees but not donor offspring to access information about their biological parents amounted to discrimination on the basis of their manner of conception, the government argued that the provisions it had made for adoptees were designed to remedy the disadvantages of adoptees, who, as the trial judge found, “ha[d] historically, if not currently, been subject to negative social characterization” (par. 38). The Court accepted this claim; in its view, “[t]he purpose of the impugned provisions is to remedy the disadvantages created by the state-sanctioned dissociation of adoptees from their biological parents” (par. 37). Under the Kapp test, this is enough to save the law from scrutiny under subs. 15(1). The Supreme Court clarified that test in Alberta (Aboriginal Affairs and Northern Development) v. Cunningham,  [2011] 2 S.C.R. 670, 2011 SCC 37, holding that subs. 15(2) protected only measures that “in a real sense serve or advance the ameliorative goal” pursued by the government. The plaintiff argued that the distinction between adoptees and donor offspring did not serve such a purpose. But the Court rejected this submission. In its view, the disadvantages the adoptees faced and which the legislature sought to redressed resulted from the change in their legal relationship with the biological and adoptive parents, and the legislation was tailored to address that problem. Since donor offspring did not face it―they never had a legal relationship with their donor biological parents to begin with―their exclusion from the scope of the legislation is justified.

I think that’s the right outcome. There are real differences in the way relationships between adoptees and donor offspring and their biological parents arise and are severed; in particular, the state intervenes in the relationship between the adoptee and his or her biological parents in the way it does not in the relationship of donors with their offspring. It is not obvious that these groups must be treated identically, and s. 15(2), as the Supreme Court held in Cunningham, permits differences in the remedial measures offered to various disadvantaged groups.

The second issue in Pratten was the existence of a “right to know one’s past” under s. 7 of the Charter. The trial court did not accept the plaintiff’s position on this point; nor did the Court of Appeal. The plaintiff argued that s. 7 should be expanded not only to prevent deprivations of life, liberty, or security of the person effected by the state, but also to require the state to provide these benefits―a proposition which the Supreme Court rejected, albeit narrowly, in Gosselin v. Quebec (Attorney General), 2002 SCC 84, [2002] 4 S.C.R. 429. The Court refuses to expand s. 7 in this way. It points out that “the right to know one’s past” is not generally regarded as fundamental in Canada. Neither the decisions of Canadian courts nor the interpretations of international conventions to which Canada is a party have recognized such a right. The Court also notes that

the rights in s. 7 are guaranteed to “everyone.”  Accordingly, recognition of what can be called the right “to know one’s past” would have implications reaching well beyond adoptees and donor offspring.  Further, it is pure speculation to suggest that only minimal resources would be needed to give effect to such a right.

The s. 7 claim is rejected.

Rightly so. For one thing, it is not open to the Court of Appeal to disregard Supreme Court precedent as the plaintiff invited it to do. For another, it is indeed difficult to regard a right which neither legislatures nor courts have ever recognized as a general one as fundamental to the workings of the Canadian legal system. And the Court is right to point out that recognizing it as such would extend it to every person however conceived. Exactly how this right could be enforced for the benefit of individuals conceived the natural way, without a medical record, is not clear at all―such enforcement would require invasions of privacy on a scale difficult to imagine. But rights are rights are rights. Which means that they should not be extended lightly.

This case highlights the deficiencies of judicial review as a means to change social policies where multiple interests are at stake. It is one thing for courts resist attempts by legislatures or the executive to expand their coercive powers, or when politicians distort the democratic process in order to entrench themselves in power. It is something else for courts to intervene when legislatures try to strike a balance between the interests of different groups of citizens. The donor offspring have good reasons to want to know “their past.” But it may well be that many donors would not have donated sperm or eggs without the benefit of anonymity. Which, of course, would mean that infertile couples would not be able to have children. There are thus at least three groups of citizens―none of them, I should note, so numerous or powerful as to use its strength to dominate the political process at the expense of the others―whose interests must be taken into account and balanced. Legislatures can and ought to do that. Courts cannot, and should not try.

Thanks for Nothing

Last week, the Superior Court of Ontario has issued a ruling on two important motions in a challenge to the constitutionality of the abolition by Parliament of the long-gun registry brought by an Ontario NGO, the Barbara Schlifer Commemorative Clinic, which I first mentioned here. The decision, Barbra Schlifer Commemorative Clinic v. Canada, 2012 ONSC 5271, deals with the government’s motion to strike the application and the applicant’s motion for an interlocutory injunction prohibiting the destruction of the gun registry data pending the ruling of the court on the merits of the application. Justice Brown denied both these motions.

The government’s motion to strike was based on two grounds.

First, the government argued that the constitutional challenge was outside the court’s jurisdiction because the abolition of the gun registry is functionally identical to a refusal to set one up in the first place, and courts cannot entertain a challenge to a legislature’s failure to legislate. Justice Brown makes rather short work of this claim. The abolition of the gun registry is provided by an Act of Parliament; that Act, no less than any other, must be constitutional, and its constitutionality is subject to judicial review.

The government’s second argument was that the Clinic’s application disclosed no reasonable cause of action. The application is based on infringements of ss. 7 and 15 of the Charter, protecting respectively the rights to life, liberty, and security of the person, and equality rights. On s. 7, the government contended that the law abolishing the gun registry in no way touches on Charter rights of women victims of violence which the Clinic says it infringes. The law simply abolishes the gun registry; any use of newly-unregistered guns in violence against women is not the Parliament’s doing and thus not the courts’ concern. The courts cannot impose on Parliament an obligation to keep a law on the books. After pointing out that the Clinic alleges that the abolition of the gun registry will cause violence against women to increase and that it is arbitrary and grossly disproportionate, and that if it can prove these allegations, it will prima facie make out a violation of s. 7 of the Charter, Justice Brown turns to the question whether, in any case, the decriminalization of conduct, such as the abolition of the requirement to register a firearm is, can amount to a violation of the Charter. On the one hand, Parliament is generally free to choose which conduct it criminalizes, and which it doesn’t. On the other, suppose Parliament decriminalized murder―or, say, the murder of some part of the population. Would potential victims not have a Charter recourse? Perhaps, concludes Justice Brown, the Charter does impose a positive requirement that Parliament criminalize certain conduct. “With Canada’s constitutional forest populated with living trees, how can one say with certainty that the interpretation of section 7 of the Charter advanced by the Clinic stands no hope of success?” (Par. 72) As for the s. 15 claim, while Justice Brown seems rather skeptical of its prospects, he also points to the absence of authorities directly on point and decides that the government hasn’t shown that it has no chances of success.

Justice Brown then turns to the Clinic’s motion for an injunction to prevent the destruction of the gun registry data while litigation is ongoing. He takes note of the Québec Superior Court’s judgments in the case about Québec’s bid for the gun-registry data, which first granted an interlocutory injunction and then an injunction-like declaration preventing the destruction of Québec-related gun-registry data, but points out that Québec’s claim was based on federalism, not the Charter. He thinks that it means that the Québec court’s reasoning is not applicable to this case.

Applying the test for granting an interlocutory injunction, Justice Brown finds that there exists a serious issue to be tried, but only in the limited sense that the case brought forward by the Clinic is not frivolous, vexatious, or bereft of any chance of success. It is, otherwise, very weak:

[t]he statistical evidence filed on this motion provides little forensic support for the Clinic’s allegation that a causal relationship existed between the enactment of the long-gun registry and the most serious type of violence against women – homicide – and, therefore, that the repeal of the registry would increase the risk of such violence. (Par. 136)

This conclusion also influences Justice Brown’s view of the second prong of the test, the existence of irreparable harm, which is that the Clinic hasn’t established that women will actually suffer violence―and thus an irreparable harm―if the registry data is destroyed before the resolution of the case. And the registry can always be recreated if the Clinic’s challenge succeeds, albeit at a cost to the taxpayers, so the loss of data is not an irreparable harm either. Nor has the Clinic proven that balance of convenience favours its position.

Thus the Charter challenge to the abolition of the gun registry survives to live another day, but only just, and it is not clear what the fruit of a victory would be. The gun registry data will be destroyed well before the case is resolved. Recreating a new registry from scratch is always possible, as Justice Brown says, but if past experience is any guide, it will be an embarrassingly long and expensive process. And although theoretically this should not be so, one cannot help but suspect that this fact will colour the courts’ judgment when the case is decided. It would have been one thing to order the government to keep going an already-existent legal regime. It will be something else to order it to incur massive start-up costs to re-build one from scratch.

State, Means, and Ends

I am auditing Jeremy Waldron’s seminar on human dignity this semester. Since prof. Waldron’s rule is that auditors “must be seen but not heard” in class, I will use the blog as an outlet for thoughts and comments.

One thing we did in yesterday’s seminar was to go through the rights-protecting amendments to the U.S. Constitution and look for ways in which they can be said to rely on or further dignitarian ideas. It’s an interesting exercise, because it highlights the variety of these ideas, and shows how specific rights are connected to some of them, but not others. For example, dignity is associated with autonomy or self-direction, and the First Amendment’s protection of the “free exercise” of religion can be read as upholding that autonomy. Dignity is also associated with (high-status) equality, and the guarantee of the “equal protection of the laws” in the 14th amendment, or voting equality in the 15th and the 19th are related to that strand in the dignitarian thought. (Of course, a right can be related  to more than one facet of the concept of dignity. For example, the prohibition of slavery in the 13th amendment is related both to autonomy and to equality.)

Now there was, as I remember it, a single section of the Bill of Rights for which no one, apparently, seemed able to come up with a dignitarian explanation: the Third Amendment, which prohibits the quartering of troops in private houses in peacetime without the consent of the owner. But I think that it can actually be related to one familiar dignitarian idea: Kant’s injunction against treating persons as means to an end rather than as ends in themselves. When the government, without your consent, uses your house as improvised barracks, it treats your expense of time and/or money on building or buying and keeping up the house as means to its own ends.

The Bill of Rights contains other rights related to the same sense of dignity, notably in the Fifth Amendment, which includes protections against the taking of private property by the state without compensation and against compelled self-incrimination. (Arguably, the Canadian Charter of Rights and Freedoms is rather less protective of this aspect of dignity, but it also includes a protection against compelled self-incrimination.) Yet in other ways the U.S. Constitution (as well as the Charter) countenances and arguably even requires the use of citizens as means to the government’s ends. It does not prevent the draft, for example. It also protects the right to jury trials, which means that the state must conscript citizens to serve as jury members.

I wonder what to make of this contradiction. Is it even a contradiction, or is there some broader principle, or some distinction, that I am missing? If it is, is it wrong? Can or should we do things differently? Your thoughts are very welcome.

Is There Voice after Exit?

First of all, an apology for the overextended silence. I couldn’t find anything interesting to blog on, I’m afraid. Fortunately the CBC has rescued me by reporting on a challenge to the provision of the Canada Elections Act, S.C. 2000 c. 9 (CEA) which prohibits Canadians who have resided abroad for more than five consecutive years (except members of the Canadian forces, civil servants, diplomats, and employees of international organization) from voting in federal elections. (Indeed the disenfranchisement potentially extends even to those Canadians who have been abroad for less than five years but do not intend to return to Canada as residents, or even those who are unable to provide the Chief Electoral Officer with “the date on which [they] intend[] to resume residence in Canada,” pursuant to par. 223(1)(f) of the CEA. It is not quite clear whether the challenge extends to the requirement of an intent to return (on a certain date). While the intent requirement  is in the same provision (par. 11(d) of the CEA) as the five-year limit, it might be easily severable; certainly the individuals bringing the challenge emphasize their desire to return to Canada.

The CBC writes that

[t]he rule denying the vote to Canadians outside the country for more than five years was enacted in 1993 amid debate about the strength of their ties to Canada and how well informed they are about the domestic political situation. However, it was only in 2007 that Elections Canada began to enforce the rule to “more clearly reflect the intention of Parliament,” said spokesman John Enright. Until then, the five-year clock would reset for expats who returned even for short visits. Now, they have to “resume residency” before leaving again to regain their right to vote abroad.

It adds that

[a]ccording to economist Don DeVoretz, professor emeritus of Simon Fraser University, close to 10 per cent of all Canadians live abroad – a larger population than all but four of the provinces. About one-third of them live in the United States.

The leading case on the disenfranchisement of a class of citizens is Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 S.C.R. 519, which the Supreme Court held ― by a 5-4 majority ― that denying the right to vote to prison inmates serving sentences of two years or more was a violation of s. 3 of the Canadian Charter of Rights and Freedoms, which provides (in part) that “[e]very citizen of Canada has the right to vote in an election of members of the House of Commons,” and that this violation was not justified by s. 1 of the Charter. The government had conceded the s. 3 violation, which I assume will also happen in this case. The real debate in Sauvé was, and will be here, on the s. 1 justification.

Chief Justice McLachlin, writing for the majority in Sauvé, warned that “[l]imits on [the right to vote] require not deference, but careful examination” (par. 9). While “logic and common sense” could serve as justifications in the absence of hard scientific evidence, “one must be wary of stereotypes cloaked as common sense, and of substituting deference for the reasoned demonstration required by s.1” (par. 18). The prohibition on prisoner voting utterly failed the s. 1 test. For one thing, prisoner voting gave raise to no specific concern which Parliament sought to address by prohibiting it. Parliament’s stated objectives of promoting respect for the law and enhancing the purposes of criminal punishment were vague and symbolic, so much so that their “rhetorical nature … render[ed] them suspect” (par. 24); they were not pressing and substantial, as required by s. 1. For another, even if Parliament’s objectives were satisfactory, deprivation of the right to vote was not rationally connected to them. “[A] decision that some people, whatever their abilities, are not morally worthy to vote — that they do not  ‘deserve’ to be considered members of the community and hence may be deprived of the most basic of their constitutional rights” (par. 37) runs against the direction of historical progress towards universality of the franchise and “is inconsistent with the respect for the dignity of every person that lies at the heart of Canadian democracy and the Charter” (par. 44).

How will these comments apply to the denial of the franchise to Canadians living abroad? It seems to me that the government is again going to have a hard time articulating the objective of this measure, “the harm that the government hopes to remedy” (par. 23). My best guess is it will be something like “preventing voting by people who are uninformed or do not care about Canadian politics, or who have abandoned their membership in the Canadian community.” The applicants who launched this challenge, as the CBC story describes them, certainly give lie to any such claims. Especially now, thanks to the Internet, it is in fact as easy to keep abreast of Canadian news while living in New York as in North York, in Melbourne as in Montreal, in Kolkata as in Calgary. And of course it is now easy to maintain one’s ties to one’s family and friends in Canada, and to remain part of the broader community (as indeed I am trying to do with this blog for example). Add to this the fact that those Canadians living in Canada need not show that they are in any way informed about politics or current events, or that they have any sort of community ties, in order to be able to vote, and the denial of this right to those living abroad looks perfectly arbitrary. As with the prisoners, it is a judgment that they are not morally worthy to vote ― and such judgments are not open to Parliament, according to Sauvé.

I wish the challengers, and their lawyers, the best of luck.

Rants and Freedoms

Some university students think the lecturer whose class they are taking is doing a lousy job. Someone creates a hyperbolically-named Facebook group to rant; others join; a few post derogatory messages on the group’s wall. So far, so normal. But, after the semester ends and the lecturer, for reasons unknown, is no longer employed by the university, she somehow learns of the Facebook group, and complains to the university’s authorities. A kangaroo court is held, and finds the members of the group ― including those who posted no messages at all, and those whose messages were quite innocuous ― guilty of “non-academic misconduct.” Some of the students are required to write an apology letter to the former lecturer and put on probation. An appeal to a higher university instance is fruitless, and the university’s Board of Governors refuses to hear a further appeal. Judicial review and an appeal ensue.

That’s the scary story of Keith and Steven Pridgen, (former) students at the University of Calgary, whose right to rant the Alberta Court of Appeal vindicated in a recent decision. One has to hope that it will serve as a lesson for professors and university administrators (as well as teachers and school principals) in the future. Students, in case such people forget, have always ranted about their professors, and always will. It’s not always nice, and it’s not always fair; get over it. (This is, as much as anything else, a note to self as an aspiring academic.) The fact that rants now leave a digital record does not change anything, it seems to me: just because they used to circulate (and of course still circulate) by word of mouth, rants were no less pervasive and durable in the past. Stories about professors are handed over from one cohort of students to the next; they are an ineradicable part of university’s environment.

Legally, the Alberta Court of Appeal is interesting in a number of ways. Each of the three judges wrote a separate opinion. They all agree in finding the university’s decision unreasonable  and hence invalid on administrative law grounds, because the university’s decision bore little, if any, relationship with the evidence it ought to have been based on ― evidence of harm to the lecturer, or of the specific actions of each accused student. Justice O’Ferrall also finds that the utter failure to consider the students’ free speech rights contributes to making the decision unreasonable. The judges disagree, however, on whether to address the other issue debated by the parties (and several interveners) – the applicability of the Charter, and its guarantee of freedom of expression.

Justice Paperny thinks the question deserves to be addressed, since it was debated at length by the parties and is important; her colleagues disagree, because it is not necessary to the resolution of the case (since it can be resolved on administrative law grounds) and important constitutional questions should not be addressed unless it is necessary to do so. Both arguments have merit; I’m not sure on whose side I would have come out if I had to vote. Justice Paperny devotes much of her opinion to arguing that the Charter does indeed apply to universities, at least in their disciplinary dealings with their students. Her review of the case law is comprehensive, her argument about the universities’ and the government’s roles in contemporary society sometimes sweeping. And it is persuasive (and Justice Paperny’s colleagues, one senses, do not actually disagree with its substance).

One final thought. The court did not pause to consider whether the university even had the power to punish students for something they wrote on Facebook. Yet it seems to me that it’s a crucial jurisdictional question. (Needless to say, the university did not consider it either.) I can see why a university might be interested in what is being said in its lecture halls, or online on forums it maintains (in connection with courses for example). It does have an interest in maintaining a welcoming, respectful learning environment, although arguably this interest does not play out in the same way as a school’s, since everyone at a university is an adult and is there by choice. But does this interest give a university the right to police the conduct of its students off-campus or online? I think not; but in any case, it’s too bad the court did not ask itself the question.