Wednesday, 30 April 2014

A  university’s  war  on  free  speech

This article deals with two important issues—freedom of speech and procedural fairness of administrative tribunals.    
One would think that free speech can be applied everywhere. Well, in fact, it cannot. For example, you can’t flout blasphemy in a church or flout insults in a court room. Further, you can’t walk down a public street carrying a sign advocating genocide of a specific race.                             
The Board of Governors of the University of Calgary made a ruling that non-students could not post pro-life signs depicting photographs depicting graphic photos of the Holocaust, the Rwandan Genocide, and racially motivated lynchings, as well as photographs of aborted human fetuses unless the pictures on the signs were turned away from the walkways where they were placed. Those interested in looking at them could then step behind the displays to look at the pictures and any other material on the displays. The display was entitled the Genocide Awareness Project (GAP).
The display was erected by the Campus Pro-Life (CPL), a registered campus club near MacEwan Hall in an area with high pedestrian traffic. During the first two years of the display, the University erected its own signs leading up to the display stating that “the exhibit’s images are extremely graphic and may be offensive to some” and that “the exhibit is protected under the relevant section of the Charter of Rights and Freedoms related to Freedom of Expression.” 
In the fall of 2007, a group of students opposed to the GAP display erected barriers obstructing the GAP display preventing the images from being viewed by passersby. In response to this occurrence, counsel for CPL wrote to the University expressing concern over the incident and requested that the University suggest a go-forward solution. The March 10, 2008 letter read in part as follows;                                                                                      
“CPL welcomes debate with those who oppose CPL’s views, and does not wish to restrict or curtail the peaceful and non-physical expression of others’ viewpoints. CPL supports the right of pro-choice activists to stand across from the GAP exhibit, leaving adequate space for passersby and for people to stop and discuss the GAP display with CPL volunteers.” unquote
CPL’s concern was with the physical blocking of its GAP display by protesters, which is not peaceful and which can easily escalate into higher levels of physical conflict.
The letter ultimately proposed that for the upcoming spring 2008 display, the University provide each party with a designated area which would maintain a reasonable distance between groups with opposing viewpoints.
The University concluded that the appropriate solution was to request that the CPL Students turn their signs inwards, such that fellow students would have to enter the display area in order to view the images. The CPL Students did not abide by this request. A similar request was made again and ignored and again in the fall of 2008. In January of 2009, a number of the CPL Students were charged with trespassing. These charges were stayed by the Crown (prosecution) shortly before the trial date. CPL continued to set up its display for two days each semester without incident, including a spring demonstration on April 8, 2010.                                                                    
During the April 8, 2010 demonstration, Campus Security hand-delivered a written notice to those CPL Students participating in the demonstration, which stated as follows:
“You are on the University of Calgary’s private property. The University intends to maintain good order and minimize the risk of violent confrontations on its private property. The University seeks to protect the safety and security of its students, faculty and staff. Campus Pro-Life has already informed the University that its displays, together with the reaction to them, will likely trigger violence. The University is not asking you to stop your protest on private property, even though the University would have that right.   The University merely asks you to turn your display inward. The following types of signs are exceptions that may face outward: those that identify your group, welcome viewers, and identify the protest generally as an anti-abortion display. But signs with the actual content of your display, including pictures, slogans, and discussion (such as comparisons of abortion with the Holocaust, the Rwandan genocide, and activities of the Ku Klux Klan) must face away from walkways, plazas, open fields where people gather, or any other areas in which persons on campus would have little choice but to look at your display.”

The Notice went on to state that failure to comply may result in, inter alia, the University initiating non-academic misconduct proceedings. Each of the CPL Students expressly refused the request and subsequently refused to leave the demonstration, despite instructions to do so by Campus Security.
Following the April demonstration, each of the CPL Students received a letter from Meghan Houghton, the Associate Vice-Provost (Student Success and Learning Support Services), alleging that by failing to either turn the display inward or leave campus, the CPL Students had violated section 4.10(e) of the University’s Non-Academic Misconduct Policy (“Policy”). The relevant section of the Policy states:                                                        
Major Violations are actions by a University of Calgary Student or Student group which endanger the safety and/or security of another individual or the University of Calgary community, or that contravene municipal, provincial or federal law. Major violations include, but are not limited to:
“Failure to comply with the direction of a Campus Security Officer or University official in the legitimate pursuit of his/her duties.”
The University initiated non-academic misconduct proceedings and hearings took place before the Associate Vice-Provost (Student Success and Learning Support Services). During the hearings, each CPL Student acknowledged that on April 8, 2010, they were provided with a copy of the Notice and asked by Campus Security to turn their signs inward, and that they refused to do so. The CPL Students further acknowledged that following this refusal, they were asked to leave campus; a request which they also refused.
Each Student read an identical statement for the record, which, in summary, stated that at the time they were issued the Notice, they believed that were exercising their right to freedom of expression under the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 (Charter) as well as their contractual rights as students of the University, and that the University was prohibited from arbitrarily discriminating against them based on CPL’s philosophy and beliefs.
The statement went on to assert that the University condones other campus groups which use graphic and shocking displays as a part of their demonstrations. 
A number of the Applicant students made enquiries of Ms. Houghton as to how the University defined “legitimate” and argued that by effectively censoring the CPL display, Campus Security could not have been acting in the “legitimate” pursuit of any duties, as per section 4.10(e).
Ms. Houghton found each CPL Student guilty of committing a Major Violation under the Policy based upon their own admissions of failing to follow the Notice. The Students were each issued a formal written warning. Her reasons, dated May 5, 2010, stated, in part;
“You indicated that you were entitled to ignore or refuse to comply with the direction of Campus Security because to have done so, in your personal opinion, would have resulted in the University discriminating against you on the basis of philosophy, religion, view point, belief or other analogous ground. It is not your right to unilaterally decide whether discrimination is occurring. This is the jurisdiction of other bodies and not the subject of this proceeding. The University’s operations would be greatly impeded if students or its members could independently and unilaterally decide which directions or authority to comply with and which to ignore.”
She also said; 
You have also stated that you did not believe that University officials were acting in a legitimate or official capacity. You did not lead any evidence in this regard. It is within Campus Security’s mandate to oversee campus activities and security. Again, it is not for individual students or members of the University to ignore University direction on the basis that you do not believe that Campus Security officials were acting in a legitimate capacity. Any challenge to that capacity is more appropriately dealt with in other venues.” unquote
She also said in her decision that the University’s Non-Academic Misconduct Policy exists to promote the safety and security of all members of the University of Calgary community. The University views the non-academic misconduct process as a learning experience which results in personal understanding of one’s responsibilities and rights within the University environment. To this end, the student conduct process attempts to balance an understanding and knowledge of students and their needs and rights with the expectations of the University and larger community (section 4.2). The University has the right and responsibility to control and manage activities on University lands and grounds.
She said to them in her decision;
“You have agreed that the University has this right. The Non-Academic Misconduct Policy provides that a major violation includes a failure to comply with the direction of a Campus Security Officer or University official in the legitimate pursuit of his/her duties. You have acknowledged that you intentionally failed to comply with the written direction of Campus Security. On this basis, I find that Campus Security properly exerted its mandate and exercised its discretion in a reasonable manner. I therefore find that you have committed a major violation under the Non-Academic Misconduct Policy.”
The question of the legitimacy of the university’s decisions
The CPL Students appealed this decision by way of a letter dated May 14, 2010.  Section 4.41 of the Policy limits the grounds of appeal to one or more of the following: (i) subsequent discovery of relevant evidence; (ii) bias; (iii) failure to follow procedure in a manner which may have affected the outcome of the case; and (iv) the severity of the sanction exceeds the nature of the violation. The Policy expressly notes that dissatisfaction with the sanction imposed does not constitute grounds for an appeal.
The CPL Students alleged bias and the failure to adhere to the proper procedure for a non-academic misconduct hearing. They also raised additional grounds (such as failure to adhere to the principles of natural justice, failure to consider relevant facts, and reliance on unfounded assumptions not supported by the evidence) which were not considered as they did not constitute grounds for appeal under the Policy.
A review hearing was held on July 23, 2010, wherein it was held that none of the grounds of appeal had been proven. As such, a motion was passed not to accept the Students’ request for an appeal hearing, as there were no adequate grounds to do so.
Specifically, the Appeal Board found that the Students’ argument, that Ms. Houghton failed to consider relevant facts in making her finding of non-academic misconduct, did not constitute evidence of bias. It further found as follows: 
“You have alleged in the bias section of your request for an appeal that there was no evidence of a risk to safety and security. While the Appeal Board did not consider this an allegation of bias and therefore a ground of appeal, the Appeal Board noted that in your meeting with Ms. Houghton, you acknowledged receipt of the notice from Campus Security to follow their instructions. The notice referred to a concern raised by the Campus ProLife group regarding safety and security. In short, the Appeal Board found that the arguments alleged in your request for appeal do not constitute clear evidence of bias. Many of the allegations set out in your letter requesting the appeal appear to be arguments that you were being censored or that Campus Security lacked the authority to issue a direction as to how displays may be set up on the University of Calgary property. Ms. Houghton addressed this in her original decision. Ms. Houghton noted that you indicated you did not believe that Campus Security was acting in a legitimate or official capacity but you did not lead any evidence in that regard. Ms. Houghton found that it is within Campus Security’s mandate to oversee campus activities and security and that if you wished to challenge the general authority of the Campus Security office that it is best done in another venue. The Appeal Board found that your disagreement with this finding did not constitute grounds for appeal.” unquote 
The Appeal Board concluded that based upon the above, adequate grounds upon which to hear the Students’ appeal had not been established. As such, the Board concluded that Ms. Houghton’s reasons and corresponding sanction remained undisturbed. 
The CPL Students further appealed to the University’s Board of Governors requesting that the Board of Governors ‘reverse and quash’ Ms. Houghton’s decision. 
In their written submissions to the Board of Governors, the Students claimed that the Houghton and/or Appeal Board decisions: (i) violated their Charter right to freedom of expression; (ii) were tainted by both institutional bias as well as the personal bias of Ms. Houghton; (iii) failed to address the Students’ reasonable expectations based on past demonstrations, as well as upon the University’s tolerance of graphic demonstrations by other student groups; (iv) were unreasonable as they were not based upon evidence of a threat to safety and security; (v) were unreasonable as they assumed, without evidence or authority, that Campus Security was acting in the “legitimate” pursuit of their duties; and (vi) breached the principles of natural justice.
The Board of Governors delegated its authority to hear the appeal to the Committee. Student discipline appeals before the Committee are a two-step process: if an appellant student, on the record, establishes grounds for his or her appeal, the Committee is convened. In a letter dated January 13, 2011, Mr. Hickie, Chair of the Committee, advised that the record did not disclose any reasons that warranted convening the Committee for further consideration of the appeal. He limited his reasons to a review of the following grounds: bias, new evidence, unfairness/natural justice, and the application of the Charter and Alberta Bill of Rights.
In addressing the issue of bias, Mr. Hickie concluded that given the breadth of representatives on the Appeal Board, as well as the unanimous decision reached, there was no evidence of bias by the Appeal Board. He also concluded that the restriction on having a solicitor present during the hearing before Ms. Houghton and the inability to cross-examine witnesses did not result in bias—considering that credibility was not in issue and the facts were not in dispute.
Mr. Hickie went on to find that the Policy had been followed by both Ms. Houghton and the Appeal Board, and that there was no evidence on the record that the principles of natural justice had not been adhered to. Finally, in addressing the Students’ argument that their Charter rights had been violated, Mr. Hickie concluded that the University attempted to strike a balance between the Students’ rights and concerns for safety and security. Based upon the above, he concluded that the record did not warrant convening the Committee for further consideration of the Students’ appeal.
The students then seek judicial review of Hickie’s decision.  The matter ended up in the Court of Queen’s Bench of Alberta and before the Honourable Madam Justice Karen Horner.
The law is clear that absent specific exceptions, aggrieved parties can proceed to court only after all adequate remedial recourses in the administrative process have been exhausted. A fundamental principle of administrative law is that the statutory scheme established by a Legislature or Parliament must be used; it is not discretionary, and courts should not usurp the functions entrusted to statutory delegates. Administrative delegates must ensure the expeditious and proper functioning of the schemes of which they are a part. It is unnecessary to discuss the benefits of such schemes, other than to observe that they are an essential element of Canada’s regulatory scheme and without them the judicial system would be overwhelmed. The traditional common law (previous court decisions) discretion to refuse relief on judicial review includes the existence of adequate alternative remedies. Justice Horner decided that this matter was properly placed in the court’s hands.
The University argued that it was not open for the students to breach the Policy and then seek to impugn the underlying directive. Justice Horner didn’t accept that particular argument of the University.
The Students alleged that given the nature of the hearing, they were entitled to a high degree of procedural fairness. They submitted that because the administrative process governing the hearing was seriously flawed, Mr. Hickie’s finding could not be sustained. The University countered that the level of fairness requested by the Students was not warranted in this type of proceeding and was not provided for under the Policy of the University.
That argument by the University in my opinion is terrible flawed. Procedural fairness is a cornerstone of modern Canadian administrative law. Public decision makers are required to act fairly in coming to decisions that affect the rights, privileges or interests of an individual. Thus stated the principle is easy to grasp. It is not, however, always easy to apply. As has been noted many times, the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case.
The Supreme Court of Canada in Attorney General) v Mavi said in 2010;
“In determining the content of procedural fairness, a balance must be struck. Administering a fair process inevitably slows matters down and costs the taxpayer money. On the other hand, the public also suffers a cost if administrative action is based on erroneous, incomplete or ill-considered findings of fact, conclusions of law, or exercises of discretion.” unquote
While fairness must be reviewed within the context in which the issue arises, the duty to comply with the rules of natural justice extends to all administrative bodies. Determining whether a tribunal has met this duty requires an assessment of the procedures and safeguards required in the particular situation. This determination is done on the correctness standard. The fairness of the proceedings is not measured based on whether they are correct or reasonable. Rather these issues are reviewed based on whether the proceedings met the level of fairness required by law. Since a court can decide whether or not the fairness standard has been met without affording deference, in that sense fairness can be reviewed for correctness.
The content of procedural fairness owed by a tribunal varies with circumstances and the legislative and administrative context. The tribunal must consider (i) the nature of the decision being made and the process followed in making it; (ii) the nature of the statutory scheme and the ‘terms of the statute pursuant to which the body operates; (iii) the importance of the decision to the individual or individuals affected; (iv) the legitimate expectations of the person challenging the decision; and (v) the choices of procedure made by the agency itself, particularly when the statute leaves to the decision-maker the ability to choose its own procedures, or when the agency has an expertise in determining what procedures are appropriate in the circumstances. 
While the University stressed that the sanction was merely a written warning, this ignored the fact that the CPL Students were exposed to the possibility of expulsion, and that the possibility of more serious sanctions were mentioned in Ms. Houghton’s decision f they continued doing what they had been doing.
Section 4.4 outlines the principles of the Policy of the University by stating:
“This policy is bound by the principles of procedural fairness and natural justice. Allegations of violations of this policy will be dealt with through clear communication that the behavior is prohibited, notice of allegations, reasons for sanctions, notice of procedures, the opportunity to be heard, notice of rationale for any decision, and the right to appeal within a clearly defined appeal structure.” unquote
The students alleged that the Associate Vice-Provost, Ms. Houghton, acted as both the accuser and the judge, in violation of the principle of nemo judex in causa sua (no individual can preside over a hearing in which he holds a specific interest or bias). The University submits that no evidence was lead establishing that Ms. Houghton’s decision was tainted, and that if such a defect existed, it would have been cured by the latter appeals in any event. 
In this case, it was contended by the Students that the Chairman, in acting as both investigator and adjudicator in the same case, created a reasonable apprehension of bias. As a general principle, this is not permitted in law because the taint of bias would destroy the integrity of proceedings conducted in such a manner.
The Students didn’t challenge the constitutional validity of the Post-Secondary Learning Act (PSLA). For this reason, Court had to determine whether the overlap of the functions of the Associate Vice-Provost Student Success and Learning Support Services had been authorized by that statute.
The Policy provides that major violations be referred to the Associate Vice-Provost (Student Success and Learning Support Services) within three days of the alleged incident by either the University official/designate in whose jurisdiction the incident occurs, or by the Department of Campus Security. In this instance, the referral came from the latter (s 4.25). The Policy further provides that the Associate Vice-Provost (Student Success and Learning Support Services) may either dismiss the matter or may arrange for a hearing with the student and, if satisfied that the violation has been committed, impose a sanction.
The judge ruled that the Students were not denied procedural fairness with respect of the faculties council’s right to create an overlapping of the function of the Office of the Vice-Provost (Student Success and Learning Support Services), as it deemed appropriate in order to facilitate non-academic misconduct hearings.
Many years ago when I was the manager of a small company, I investigated an employee whom I suspected was stealing money from the firm. After getting sufficient proof of his guilt, I prosecuted him and the owner of the firm acted as his judge. The owner concluded that he did steal the money and fired him. Now had I been the owner and discovered the theft, I could prosecute him and judge him and fire him. 
Next, the Students argued that the University had failed to provide the requisite level of fairness by denying the right to counsel during the hearing before Ms. Houghton. In his reasons, Mr. Hickie acknowledged that while the Students were not allowed to have counsel present, they were allowed to have an advisor. He concluded that the denial of counsel did not result in a denial of natural justice. The University similarly argues that the level of procedural fairness required did not extend to the right to counsel in the circumstances.
It is beyond me why counsel couldn’t be present to advise the Students. If not, who else would be qualified to advise the Students?
The Policy expressly prohibits a student from bringing counsel to a hearing. Section 4.16 states that:
“A Student who is subject to this policy because a complaint has been filed against him/her is encouraged to seek advice from an Advisor in all matters related to non-academic misconduct, and may be accompanied by an Advisor to any Hearing related to non-academic misconduct. Except in exceptional circumstances…a Student may not bring a parent or guardian as an Advisor to a Hearing. In addition, as the process for handling non-academic misconduct is an administrative process and is not a criminal process, Advisors may not include legal counsel except when a student is charged with a criminal offense arising from the same incident.” unquote  
The Policy defines “Advisor” as:
“A person who attends a hearing with a Student [can] act as a support person to him/her during the hearing. The Advisor does not represent the Student, nor is the Advisor considered a party to the hearing. An advisor includes, but is not limited to, the University Ombudsman, the SU Students Rights Advisor, a peer, a representative of the Students’ Union or Graduate Students’ Association, or a Student and Enrolment Services Peer Helper.” unquote

Other than possibly the Ombudsman of the University, do the others understand the workings of administrative law? I think that policy places the Students at a disadvantage. I should add however that in this particular case, the Ombudsman did attend the hearing. 
The judge said that the right to counsel was not absolute. The fundamental question was whether the Students had been given an adequate opportunity to present their case and to meet the University’s case against them.
The Policy provided for notice of the alleged offence, notice of procedures, and the opportunity to be heard. The April 14, 2010 correspondence from Ms. Houghton clearly outlined the details of the alleged offence, as well as which section of the Policy the Students were being charged with violating. A hearing date was specified and the Students were reminded of their right to seek advice from an Advisor. The letter expressly stated that “parents, guardians, and legal representatives are not considered suitable Advisors for this case and are not welcome at this hearing.”
I appreciate why parents and guardians can’t be present but I question the legitimacy of denying the presence of a legal representative being present to assist the Students with respect to ensuring that they receive a fair hearing. It seems to me that a great harm could befall a student who is suspended or expelled from a University if these occurrences happened because the tribunal that judged them didn’t permit the Student to have a lawyer present at the hearing. 
Here is where Justice Horner and I differ. She said in her decision; “I agree with Mr. Hickie’s conclusion that the denial of the right to counsel in this instance did not result in the denial of the right to natural justice.” 
She gave her reason thusly;
“Each of the Applicants was given the opportunity to respond to the allegations of misconduct, and each took advantage of this opportunity by reading a prepared statement outlining their position for the record. Each student acknowledged receiving the Notice and refusing to comply. The facts of this case do not support a finding that the Students’ right to counsel had been violated. This is not an instance where the talents of a lawyer were required in order to ensure adequate presentation of the Applicants’ position. The facts were not in dispute. There were no witnesses called by either side. The nature of the proceedings was meant to be informal.” unquote
I am not taking issue that the hearing was not unfair. I am only concerned that some hearings are not conducted fairly and that is why I believe that legal counsel should be present. When I was practicing law, I attended many tribunals in the province of Ontario in order to make sure that the decisions of the tribunals were arrived at fairly. In Ontario, legal counsel can be present at hearings by Tribunals.
                                                                                                                                                                                                 The Students further claimed that the denial of their right to cross-examine any witnesses (of which there were none) violated their right to procedural fairness and natural justice. If there were none, where is the violation? 
However the right to cross-examine witnesses is not absolute. The right to cross-examination, like the right to an oral hearing, depends on a variety of circumstances. Clearly it may be required by statute, but where the statute is silent and the tribunal is the governor of its own procedure, the common law is reluctant to impose courtroom procedures and technical rules of evidence. Neither the right to call witnesses, nor the right to cross-examine witnesses is unlimited. A tribunal can reasonably limit both. However, cross-examination may be a necessary element of procedural fairness where important issues of credibility are raised, or where there is no other effective means of refuting the allegations or arguments of the other side. However in this particular case, the students didn’t dispute what had been said about them by the Security people who appeared at the hearing.       
Lastly, the Students alleged that the University failed to adhere to the principles of procedural fairness by failing to provide relevant disclosure. By a letter dated April 27, 2010, counsel for the Students requested copies of all relevant University documents which enumerated and described the duties and procedures of Campus Security prior to the hearing before Ms. Houghton. These were not provided.
Mr. Hickie found that the University did not act unfairly in failing to disclose such documents. Specifically, he found that “given the interval of several months between Ms. Houghton’s decision and the consideration of the Appeal Board, there would have been sufficient time for the Students and Mr. Carpay (a Barrister and Solicitor) to obtain and review public documents under which Campus Security’s duties are defined.” As such, he found that any concern over document disclosure no longer existed by the time the appeal before the Appeal Board was heard.
I agree with Mr. Hickie. The request should have been made much earlier. Fairness generally requires that all information relied upon by the tribunal when making its decision be disclosed to the individual. In Canada, disclosures play an important part in our justice system. There are exceptions but they are very rare. 
In this case, the Students had been physically provided with a copy of the Notice by Campus Security. They were further notified that they could access the full Policy on-line and were provided with a link to that posting.
The Students nonetheless put forward an argument that however “legitimacy” was defined, Campus Security could not have been acting legitimately as the demands in the Notice contravened their Charter-protected right to freedom of expression, as well as their contractual rights as students at the University.
The judge ruled, “I find that the documents sought by the Applicants were relevant to the issues to be determined at the hearing and may have affected their ability to fully answer the case against them. As such, Mr. Hickie erred in finding that the requested documents should not have been disclosed. However, I further find that the Applicants suffered little prejudice as a result of this lack of disclosure in that they addressed the “legitimacy” of the demand in any event. In addition, Ms. Houghton did not rely upon any documentation delineating Campus Security’s duties in her reasons as she did not believe it to be relevant. Aside from my finding that Mr. Hickie erred in determining that the Students were not entitled to disclosure of these documents (which is addressed below in conjunction with my review of his written reasons) I find that Mr. Hickie was correct in concluding that the rules of natural justice and procedural fairness were not breached.” unquote
The Students disagreed on whether the balance of Mr. Hickie’s reasons were reviewable based on the standard of reasonableness or correctness. 
Questions of fact, discretion and policy, as well as questions where the legal issues cannot be easily separated from the factual issues is what attracts a need for a standard of reasonableness. Prior to undertaking a standard of review analysis, courts should first ascertain whether the jurisprudence has already determined, in a satisfactory manner, the degree of deference to be accorded to a particular category of questions to be ruled on.  
The judge had to determine the question of whether the disciplinary tribunal erred in concluding that the Student’s conduct constituted non-academic misconduct (as defined under the then-existing policy) And whether or not it involved questions of mixed fact and law and was reviewable on a standard of reasonableness.
Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness such as certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.
The judge said; 
“Student discipline and student affairs generally are within the unique ambit of expertise exercised by University bodies. As pointed out by the respondent (university), procedural fairness is a significant consideration in these proceedings and the University has ensured that the membership of both the Discipline Committee and the Board contain members of the Faculty of Law. I accept that a considerable degree of deference should be shown to the Board and the Discipline Committee in matters of student conduct and discipline.” unquote
As for the first issue, the University took the position that the Students’ appeal to both the Appeal Board and the Board of Governors was properly limited to the grounds contained in section 4.41 of the Policy. 
The Students on the other hand raised the following grounds for appeal before the Board of Governors: (i) violation of their Charter rights; (ii) bias; (iii) unfairness in that the Houghton and Appeal Board decisions were patently unreasonable yet allowed to stand; and (iv) breaches of natural justice, including an argument that section 4.41 of the Policy excludes appeals on the grounds of patent unreasonableness, a failure to consider evidence, a failure to consider relevant law, and a lack of fairness in the Policy procedures.
In his reasons, Mr. Hickie acknowledged each of these grounds for appeal. Specifically, he noted that the Students’ argument that neither Ms. Houghton nor the Appeal Board addressed the issue of how the refusal to comply with the Notice endangered the safety and security of those on campus. He also acknowledged that the Students’ argument that Campus Security was not acting in the legitimate course of their duties by censoring the freedom of expression of the Students. 
Mr. Hickie did not directly address the issue of whether the Board of Governors was limited to the restricted grounds of appeal contained in section 4.41 of the Policy.
The judge said in response to Mr. Hickie’s comments;
“While Mr. Hickie does not expressly state that the grounds of appeal before him are similarly limited, his reasons, when read as a whole, demonstrate that he confined himself to limited grounds in determining whether to convene the Committee. For the following reasons, I find that his decision to do so was unreasonable.”  unquote
I would be remiss if I didn’t say that the Policy itself is unclear in its wording as to whether the four grounds of appeal provided for in section 4.41 are even applicable to an appeal from the Appeal Board to the Board of Governors/the Committee. It is clear that the Policy expressly provides the Appeal Board is to limit itself to hearing an appeal on these four limited grounds. Indeed, the wording of s 4.42 of the Policy states.
The judge summarized this aspect of the appeal by stating in her decision;
“While patent unreasonableness no longer exists as an independent ground of review, the Students squarely placed the issue of the reasonableness of Ms. Houghton’s findings before Mr. Hickie, and his failure to address this ground renders his decision unreasonable.” unquote

Application of the Charter and the Alberta Bill of Rights  

The Students first raised the argument that the GAP display was protected by the Charter’s right to freedom of expression during their hearing before Ms. Houghton. Ms. Houghton did not directly address the Students’ Charter argument, although she did note the objective of promoting safety and security or campus alongside the fact that students were not asked to discontinue their protest altogether. She concluded that any argument raised by the Students that a refusal to follow Campus Security’s direction due to a belief that it discriminated against them on the basis of “philosophy, religion, view point, belief or other analogous ground” was not properly before her.

In their appeal before the Appeal Board, the Students again raised the argument that they were exercising their right to freedom of expression in erecting the GAP display and that Ms. Houghton’s decision failed to consider this factor in her decision. While the Appeal Board did not directly address the Students’ Charter argument, it did note that the University did not request that the GAP display be discontinued, only that it be set up with the signs facing inwards. The Appeal Board agreed with Ms. Houghton that any arguments based on censorship or illegitimacy of the Notice were best dealt with in other venues. It further stated that the Notice referred to a concern regarding safety and security.
Quite frankly, I don’t see how she felt that by having the displays turned inward would solve the security problem that might arise. If anyone really objected to the photos, they might cause a disturbance when they went to the other sides of the displays and seen the photos. Turning the photo away from the walk ways by itself wouldn’t solve the problem of security.
In any case,   in their appeal to the Board of Governors, the Students argued that the request to turn their signs inward violated their section 2(b) Charter right to freedom of expression and could not be justified under section 1. They also argued that their section 15 right to equality had been similarly violated.
Mr. Hickie argued that…
“if, in fact, the discipline of students at the University of Calgary is subject to the Charter, I am of the opinion that the facts presented in the appeal (which were not in dispute) did not raise an issue that the University acted unreasonably in attempting to balance the interests of all involved in this matter. The right to freedom of expression is not absolute. The facts as presented show that the University attempted to strike a balance between the students’ rights and concerns for safety and security. In any event these facts (and this balance) were thoroughly considered by the Appeal Board.
The judge responded with respect to Hickie’s argument by saying in part; 
“I cannot accept Mr. Hickie’s finding that the facts “do not raise an issue” as to whether the University properly balanced the relevant Charter values with the statutory objectives. I disagree that the underlying facts and corresponding balance were “thoroughly” regarded by the Appeal Board. The Appeal Board’s consideration of the severity of the interference with the Students’ Charter-protected interests is limited to the fact that University did not ban the GAP display, but rather requested the Students’ to turn their signs inwards. Neither the Appeal Board’s nor Mr. Hickie’s decisions address the effect that this request might have on the ability of the Students’ to realistically express their thoughts and beliefs. Mr. Hickie’s conclusion that there was a reasonable attempt to balance these interests does not fall within a range of possible, acceptable outcomes.” unquote
She also said;
“His (Mr. Hickie) failure to properly consider the effects of this request may stem from the assertion in the Notice that such effect would be minimal. The Notice states that the University is “merely” requesting the students turn any signs with the actual content of their display inward. Again, with respect, there is nothing “mere” or trivial about such a demand. Rather, the effects of this request on the ability of the Students to freely express their beliefs should have been further considered in order to satisfy any proportionality exercise. There is no discussion as to whether turning one’s sign inward is the best way to protect the Charter values in issue in view of the statutory objectives. The protection of Charter guarantees is a fundamental and pervasive obligation, no matter which adjudicative forum is applying it.” unquote
Given the strongly-held convictions of both pro-life and pro-choice advocates, tension between these two groups may run high. Indeed, this was demonstrated in the fall of 2007 when a group of students attempted to block the GAP display. However, there was no evidence before either Ms. Houghton, the Appeal Board, or Mr. Hickie as to exactly what it was about the GAP display that may cause a threat to the safety and security of those on campus. Was it the location of the display? The images used? Or was it merely the presence of a pro-life demonstration, or it didn’t matter what content was used to express their beliefs?
The judge said;
There is nothing on the record which assists in answering these questions. As such, there is no indication that having the images turned inwards will somehow alleviate any safety concerns. Mr. Hickie’s conclusion that this demand struck a balance between the Students’ rights and the University’s safety concerns does not fall within the range of acceptable and rational solutions and is not reasonable. It was not reasonable for Mr. Hickie to conclude that there existed a rational connection between the Charter-infringing request and the provision of a safe campus.” unquote
The judge also said;
The errors committed by Mr. Hickie, which ultimately resulted in his refusal to convene the Committee, denied the Students their legislative right to be heard before the Board of Governors (or in this case, its delegate). Had the Committee been convened, it would have been able to engage in an analysis weighing the Students’ right to freedom of speech and association against considerations such as academic freedom and the provision of a safe learning environment. Mr. Hickie’s error cost the Students the ability to argue their case in this forum.” unquote
Finally the judge said in his decision;
“For the reasons given above, Mr. Hickie’s finding that the record did not disclose any grounds that would warrant a convening of the Committee for further consideration is unreasonable and is set aside. The Committee shall convene as soon as reasonably practical to hear the Students’ appeal on the grounds raised in counsel’s submissions to the Board of Governors dated October 29, 2010.”
I haven’t learned what the Board of Governors will decide as this appeal decision just came down but I am of the firm belief that the Board will not object to the displays being placed on the walk way and the pictures readily seen by those walking past the displays. If they file an appeal to the courts, I will update that info at the bottom of this article.

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