On Thursday, August 30, 2018, the Minister of Training, Colleges and Universities issued a directive mandating that Ontario university and college administrations develop policies to limit freedom of expression and freedom of assembly on their campuses.

Members of the campus community, including students, faculty, and staff, who are determined to have violated these new policies are expected to be disciplined by post-secondary administrations or risk having their operating funding cut by the Ministry.

The new “free speech” policy required by the Ministry follows those adopted by the University of Chicago, a private institution in the United States where laws about freedom of expression are significantly different from Canada. The policy is widely viewed as ideologically biased and controversial in the USA.

The Minister’s directive sets out January 1, 2019, as the deadline for institutional policies to be implemented and September, 2019 as the deadline for the first annual report on compliance to be published. These reports are also required to be submitted to the Higher Education Quality Council of Ontario (HEQCO), a government “research” body whose previous reports have been so flawed that most sector groups have called for it to be wound down.

Issues List

The following problems have been identified in the ministry directive:

• The directive from the minister identifies university and college campuses as special and unique places that require special restrictions on freedom of expression beyond existing laws.
• It threatens Charter protected freedom of association by explicitly identifying student and labour associations with threats to reduce funding should they engage in democratically mandated opposition to discrimination or hate speech.
• University and college administrators have been directed to regulate freedom of expression through punitive action outside existing legal processes. This would include the regulation of individual actions under institutional codes of conduct and regulation of democratic associations under threats of lost funding, recognition, and/or prevent groups from accessing spaces and resources on campus.
• The policy framework comes from a single USA private-sector university and was implemented with great controversy.
• The government directive talks about “freedom of speech” on campus, however the directive is written entirely in the context of a specific conservative reading of USA free speech laws – which are not the same as freedom of expression laws in Canada.
• The reason for the directive is not given, but it is written in the context of the far-right culture wars against academic freedom and independence of the academy in the USA and Canada.
• Even a generous reading of this directive still leaves the question of why the Ford government thinks the Canadian Charter of Rights and Freedoms is not good enough to protect freedom of expression of students, faculty, and staff on university and college campuses, but is good enough for everyone else in all other spheres of Canadian life.

Analysis

Ontario universities have academic freedom enshrined in their very fabric, negotiated in collective agreements and outlined in the principles of their governing bodies. Protecting the rights of these organizations to continue their work is essential to maintaining the academic culture of free exchange on campuses.

Instead of expanding and fostering the healthy freedom of expression broadly enjoyed on Ontario’s university and college campuses, the Ford government’s directive on “free speech” will put a chill on academic freedom and debate.

The directive will also limit the freedom of expression for those who vocally oppose hate speech and discrimination on their campuses. This limitation of free expression is likely in violation of the Charter.

The entire directive is based on punitive conservative ideology and in no way expands rights to free expression for any group. Its only aim seems to be to shield far-right hate groups from organized, democratic, active, and vocal criticism by members of the campus community.

University and college administrators are being directed to venture far outside their current mandate of managing institutional resources. They are now required to regulate the activity of all members of campus, including students, faculty, and staff. The directive is vague on what levels of free expression will now be considered tolerable on campus.

It is notable that only a small number of far-right and hate groups have been complaining about “free speech” on campus recently. These groups have long used cries of “free speech” violations when their intolerant and anti-social positions are repeatedly dismissed by the academic community. On the other hand, harassment by reactionary elements on campus against the academic community has been on the rise. However, there is nothing in this directive that attempts to limit online harassment or create structured, inclusive spaces for academic debate.

By tying the development and enforcement of these policies to institutional operating funding means that the government is forcing supposed independent institutions to impose its regressive laws. The development and enforcement of these policies, and the subsequent reports are also expected to be fully paid for by individual institutions, with no additional government funding.

Worker unions, student unions, and faculty associations have a long history of protecting and using their Charter-protected freedom of expression and freedom of association both on an off campus.

Historically, liberals in the academy, especially in risk-averse administrations, have had a hard time understanding that limiting protest against hate actually enable further discrimination and hate. This has meant democratic, mass organizations are the front-line against discrimination and hate groups on campus. The Minister’s directive attacks these freedoms by requiring universities and colleges ensure “official” student groups also comply, or have their funding and/or recognition revoked.

Conclusion

The only groups who have been calling for these kinds of restrictions on freedoms of expression and association on campus are far-right and hate groups. With this policy directive, the Ford Government is effectively creating space for, and thus promoting, those who espouse hateful ideologies on Ontario university and college campuses.

In addition, the directive does not provide any expansion of the already established legal definition of freedom of speech. Instead, it sets-out unconstitutional limits to freedom of expression and association, both used to facilitate organized mass vocal opposition to hate speech on campus. As such, the Ford Government is limiting freedom of expression on campuses.

By threatening funding for the very institutions for which academic freedom and freedom of expression are core to their mandates, the Ford government is directly undermining democratic freedoms in Ontario.