In a precedent-setting case involving brothers who criticized a prof on Facebook, an Alberta judge ruled this week that the Charter of Rights and Freedoms applies at the University of Calgary in matters of student discipline. This could mean significant changes to the way universities deal with students across the country.

The ruling stems from an appeal by two University of Calgary students who were placed on probation by the university for their Facebook postings.

The case opens the door for students on campuses to have at least some protection through Charter rights. In light of recent actions by universities to clamp down on student activities both on-campus and online, the ruling could not come soon enough.

Universities have been using their "Charter-free" status to intimidate and punish their students in an manner that raises the question: What rights do students have?

Court of Queen's Bench Justice Jo'Anne Strekaf answered the question.

The students, identical twins Steven and Keith Pridgen, each wrote one post on a Facebook group called "I No Longer Fear Hell, I Took a Course with Aruna Mitra," which was created by a fellow student in the second-year Law and Society course at the university.

That fall, according to court documents, Steven Pridgen wrote on the group's wall  "Some how I think she just got lazy and gave everybody a 65....that's what I got. Does anybody know how to apply to have it remarked?"

It was a statement Steven would eventually be punished for.

The group did not attract the attention of university authorities until nearly a year later, when, in August, 2008, Keith wrote:

"Hey fellow LWSO. homees .. So I am quite sure Mitra is NO LONGER TEACHING ANY COURSES WITH THE U OF C !!!!! Remember when she told us she was a long-term professor? Well actually she was only sessional and picked up our class at the last moment because another prof wasn't able to do it ... lucky us. Well anyways I think we should all congratulate ourselves for leaving a Mitra-free legacy for future L.S.W.O. students!"

Professor Mitra filed a complaint about the Facebook group with Professor Wisdom Tettey, Interim Dean of the Faculty of Communication and Culture, on Sept. 4, 2008. The Dean quickly assembled a meeting with the 10 students who posted to the group.

Following the meeting, the 10 students were all found guilty of committing non-academic misconduct and ordered to apologize for posting to the Facebook group.

The university warned that failure to comply with the order "may result in further sanctions including, but not limited to, suspension or expulsion."

Both twins were placed on probation and they decided to appeal the ruling finding them guilty of misconduct.

Both students got legal counsel and advised the University of Calgary they wished to appeal to the University's Board of Governors, after an earlier appeal upheld their convictions.  The University denied them the ability to appeal, stating that probation for non-academic misconduct cannot be appealed to the Board.

In short, the University of Calgary took the idea that universities are exempt from the Charter to its extreme. By not granting the students the ability to appeal to the Board of Governors, the university opened the door for their successful appeal to the courts and have brought the Charter into effect at Canadian universities.

As Justice Strekaf wrote, "the University is not a Charter free zone. The Charter does apply in
respect of the disciplinary proceedings taken by the University."

Universities can no longer impose student punishments willy-nilly without due process and respect for Charter rights.

"Asn educational institution, the University should expect and encourage frank and critical discussion regarding the teaching ability of professors amongst students, even in instances where the comments exchanged are unfavourablele," she wrote.

Justice Strekaf's words should hang over the desk of every university administrator.

True free speech does not exist on the campuses of Canada's publicly-funded universities - that is not in doubt. Universities are legally private institutions and immune from the Charter of Rights and Freedoms. (The Supreme Court of Canada famously confirmed this in 1990 in the famous McKinney v. University of Guelph decision)

With no legal requirement to allow for the free exchange and expression of ideas, it is not surprising that Canadian universities limit the expression of controversial or unpopular ideas.

The eternal question facing universities is not if it is reasonable to impose limits on free expression - even governments institutions, which fall under the Charter, are allowed to impose restrictions - but what those limits should be and if limiting speech is even effective.

The latest flash-point is Carleton University, where five pro-life/anti-abortion activists were arrested last week when they attempted to display large posters that show aborted fetuses beside images of some of humanity's worst acts of genocide.

The "Genocide Awareness Project" (GAP) is the source of great controversy - which is exactly the goal of the organization behind it. The "Canadian Centre for Bio-Ethical Reform" is a media-savvy organization and is fully aware of the national attention these arrests bring to their cause. (One only needs to do a Google search of their name attached to the University of Calgary.)

If they display their posters, they are often confronted by angry individuals who are pro-choice. If they are prevented from displaying their posters, they complain of censorship. More recently, universities have requested the arrest of individuals involved in GAP displays for trespassing on the private property of the institution.

Despite the unreasonable actions of the GAP group at Carleton, who were offered space on campus to display their posters in a room that people could choose to enter (as opposed to on the main quadrangle), the university is wrong to request the arrest of its students.

Universities should allow for the exercise of free speech, even when unreasonable, as long as it does not incite hate or violence.

The fact that some would counter-protest in a manner that could lead to violence should not grant the university the right to stop a protest from occurring.

Controversy provides an opportunity for learning - the university can provide a forum for different viewpoints to be expressed and provide students with the opportunity to hear from the greatest minds on the matter of abortion.

By arresting these students, the university instead co-operated with the goals of the GAP group.

A more temperate response that focused on raising the debate from the chanting of slogans and simplified comparisons would have the effect of both removing the incentive for GAP to engage in unreasonable activities and advance Carleton's mission of "the intellectual, social, moral and physical development of its members, and the betterment of its community."

Arresting students to suppress their speech is ineffective. Carleton has achieved national media attention for these students and their case. At the same time, it has damaged the reputation of the university by responding with the use of the instruments of the state, instead of with better ideas.

Sixteen obscure professors at one of Canada's smaller universities have publicly stated their belief that Project Hero, an initiative in which post-secondary institutions grant tuition-free education to children of deceased soldiers, is "a glorification of Canadian imperialism in Afghanistan and elsewhere" and that the University of Regina should immediately withdraw from the program.

The howls of outrage to their open letter have been heard across the country.

I celebrate the publication of the letter at the same time as I reject its call to action.

Member of Parliament Andrew Scheer (Regina-Qu'Appelle) stated "Attacking a scholarship for the children of our fallen service men and women is disgusting."

Mr. Scheer is wrong. The letter "attacking" the scholarship is not disgusting, nor is the expression of the ideas wrong. The letter is disagreeable but should be celebrated for its value to the democratic ideals of Canada.

These professors are engaging in the activity that justifies the existence of the liberal arts faculty in a modern democracy; they are challenging the political status quo by inciting debate about Canada's foreign policy, which they refer to as "imperialism."

They are - granted from the comfort of well-paying positions within the ivory tower as members of the intellectual elite - taking an unpopular stand and I commend them for doing so. As someone who served in the reserves for three years, I'm heartened by these professors exercising their democratic right to opine against Project Hero. I personally support Project Hero as an important gesture of appreciation toward of the families of soldiers who died serving the Canadian people in the service of their country as ordered by Parliament.

The University of Regina has correctly rejected their demand to cancel Project Hero, but should partially grant their request to hold a public forum on the war in Afghanistan and Canadian imperialism more generally to be held this semester before exams begin.

The University of Regina should hold an academic debate - streamed on the Internet - about Canada's foreign policy in Afghanistan this summer and invite assistant professor Jeffery Webber, the de facto spokesperson for the sixteen, to argue his viewpoints against another academics on the other side of the debate.

May the best ideas win. 

 Cast your vote: Do you think children of fallen soldiers should get free tuition at universities?