The Expressive University the Legal Foundations of Free Expression and Academic Freedom on Canada’s Campuses

Abstract

What can people say on Canada’s university campuses? This question has become especially controversial in the last several years. It is a question that might usefully be addressed by answering another query: What are the legal standards that govern what people may say at Canada’s universities? This question in turn obliges a close inquiry of two distinct, but related concepts: freedom of expression (commonly called “free speech”) and academic freedom. This article aims to redress misunderstandings – and address uncertainties – about how the concepts of free expression and academic freedom apply as a legal matter on Canadian university campuses. After examining the scope of the Canadian Charter of Rights and Freedoms “free expression” guarantee and controversy over its application to universities, the article expresses doubt that universities will forever remain insulated from the Charter. It then proposes a careful assessment of academic freedom as a workable metric for understanding how Charter-protected free expression would apply to universities. In doing so, it examines how academic freedom has been treated by the courts, presents data from the 95 members of Universities Canada on the scope and meaning of academic freedom, provides a statistical breakdown of its key components, and, highlight how the concept has been applied to speech. The article describes how legal approaches to academic freedom and free speech might dovetail into workable expectations about what can be said on campus. Universities may, in other words, embrace both constitutionally-guarded free expression and academic freedom to create a foundation for understanding the scope of speech on campus.