The Court of Appeal upheld Wednesday a lower court ruling that found the Charter of Rights and Freedoms do apply when universities are meting out discipline to students.
The case involved twin brothers, Keith and Steven Pridgen.
In 2007 both posted critical remarks in a Facebook group devoted to complaints about one of their professors, Aruna Mitra, who was teaching a Law and Society course for the first time.
The court decision describes how the comments were highly critical of Mitra’s qualifications and teaching skills. She was described as "inept," "illogically abrasive" and "inconsistent." On post suggested Mitra should be "drawn and quartered" for all to see.
Steven Pridgen complained about a mark.
"Somehow 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?" he posted.
Keith Pridgen posted how he was excited when he learned Mitra wasn't teaching any course the following semester.
"I think we should all congratulate ourselves for leaving a Mitra-free legacy," he wrote.
Mitra complained to university administration and the school went after 10 members of the Facebook group, including the Pridgens.
The university found all of the students guilty of non-academic misconduct.
Keith Pridgen was put on probation and were told to apologize. Steven Pridgen was also told to apologize.
"I want to state emphatically that you are not being sanctioned for expressing your opinions on this site. You are at liberty to do so," read the letter sent to Keith Pridgen. "It is important, however, that your views are not based on false premises, conjectures, and unsubstantiated assertions that are injurious to individuals or institutions and their hard-won reputations."
After being rebuffed by the university appeals process, the brothers appealed to the Court of Queen's Bench, arguing they had a right to free speech.
When the judge agreed with the brothers, the university took the matter to the Court of Appeal.
The school, backed by the Association of Universities and Colleges of Canada and the Governors of the University of Alberta, didn't dispute that the brothers' rights had been violated. It argued that a previous Supreme Court ruling precludes the application of the charter to public universities.
The three judges on the appeals panel all agreed to dismiss the appeal, though each of the judges wrote their own reasons for arriving at their decision.
Justice Marina Paperny said that the charter does apply to university discipline. Justice Bruce McDonald ruled that the university's findings were unreasonable, but that there was no need to involve charter rights to come to that conclusion. And Justice Brian O’Ferrall sided with the students, citing the university's failure to consider their civil liberties.
"I was a little bit worried when I first read the decision because I thought it was a split decision, but then I realized that it was only a split on the reasons for the decision," Keith Pridgen said when reached by phone Wednesday.
"Right from the get-go, for me, we didn't do anything wrong ... It's been good broad-based support across the whole country and I think I've been feeling pretty affirmed in my position, just even from public opinion."
The University of Calgary said in a statement that it was reviewing the decision. It did not say whether it would consider seeking leave to appeal to the Supreme Court.
"The University of Calgary acknowledges that this case identified the need for improvements to its non-academic misconduct policy," the school said.
"To that end, the university has already revised its disciplinary policy. This included centralizing non-academic misconduct procedures in order to make them consistent for all students across campus and to bring them in line with best practices from other Canadian universities."
The school noted that only Paperny dealt with the charter issues directly in her reasons.
"In addressing that issue, the judge was careful to point out that being obliged to respect the charter in disciplinary proceedings does not mean that the university loses its autonomy or independence from government in other respects, particularly when it comes to its core academic functions," the university said.
The Association of Universities and Colleges of Canada did not immediately respond to requests for comment.
Lawyer John Carpay, with the group Justice Centre for Constitutional Freedoms, currently has another free-speech case involving the University of Calgary before the courts. It involves an anti-abortion student group found guilty of non-academic misconduct for a campus display that featured graphic photos and compared abortion to atrocities such as the Holocaust.
"It's great to see a victory for campus free speech," Carpay said Wednesday. "Universities ought to be the place where free speech is respected and honoured more than anywhere else."
Keith Pridgen graduated last spring from the University of Calgary with a degree in political science. He worked for the Wildrose party in last month's Alberta election and wants to go to law school. His brother transferred to Mount Royal University in Calgary and earned a criminal justice degree. He is now doing his masters degree in California.
Keith Pridgen said he's still happy to hold a degree from the school he fought through the courts.
"I don't hold anything against the university," he said. "I think that there's a big difference between a lot of the faculty that taught me and the administration who made, I think, some poor decisions along the way."
— By Tim Cook in Edmonton
Note to readers: This is a corrected story. A previous version had Association of Colleges and Universities Canada