Should the Charter Apply to Universities?

Abstract

This article explores the unresolved issue of whether the Charter of Rights and Freedoms applies to public universities in Canada. The author considers the Supreme Court’s judgment in McKinney v. University of Guelph in the context of more recent jurisprudence on the application of the Charter, as well as divergent lower court judgments concerning restrictions on student expression. He argues that public universities in Alberta, British Columbia, and Ontario implement specific government policies and exercise statutory powers of a public nature, which should subject them constitutional scrutiny. He further demonstrates that the Charter’s application is reconcilable with institutional autonomy. By limiting constitutional review to the public decisions of universities and imposing the reasonableness standard, courts can protect Charter values without unduly intruding into operational activities. More fundamentally, the author argues that the continued treatment of universities as Charter-free zones is both indefensible as a matter of legal principle, and inconsistent with the preservation of academic freedom.

Keywords: Constitutional Law, Freedom of Expression, Universities, Charter of Rights and Freedoms