Ontario universities and publicly-funded colleges are now required to develop and publicly post a free speech policy by January 1, 2019. No Bill has yet been introduced to detail these requirements. However, the government outlined the minimum standard for the policy and related requirements in a communication issued by the Office of the Premier on August 30, 2018.

What to include in the free speech policy

According to the government’s communication, the free speech policy must apply to students, faculty, staff, management and guests of the university or college. At a minimum, the policy must incorporate:

  • A definition of freedom of speech;
  • Principles based on the University of Chicago Statement on Principles of Free Expression;
  • Statements to indicate that the institution will:
    • apply existing student discipline measures to students whose actions are contrary to the policy, such as engaging in disruptive protests that significantly interfere with the ability of an event to proceed;
    • consider official student groups’ compliance with the policy as a condition for ongoing financial support or recognition by the institution;
    • encourage student unions to adopt policies in alignment with the institution’s free speech policy; and
    • use existing mechanisms to handle complaints and ensure compliance. However, any complaints against the institution that remain unresolved can be referred to the Ontario Ombudsman.

In defining freedom of speech, policy drafters may wish to consider the principles set out by the Supreme Court of Canada and that freedom of expression is protected under the Canadian Charter of Rights and Freedoms. The Court has established that “everyone can manifest their thoughts, opinions, beliefs, indeed all expressions of the heart and mind, however unpopular, distasteful or contrary to the mainstream” as part of a “free, pluralistic and democratic society.” Expression has both content and form, according to the Court. Activity is considered to be expression if it attempts to convey meaning. The content of expression can be conveyed in many different forms (e.g., written, spoken, art, etc.). However, freedom of expression is not an absolute right and has certain limits. For example, freedom of expression does not protect acts of violence, hate speech or discrimination.

No protection for hate speech or discrimination

The University of Chicago Statement on Principles of Free Expression (“Statement”) was developed in response to backlash against the university for inviting the Communist Party’s candidate for President to give a lecture on campus. The Statement recognizes that universities are places for open discussion and free inquiry. As such, universities should not shield members of the university community from opinions that they may disagree with; there should be no obstruction or interference with the freedom of members of the community to express their views.

However, the Statement also recognizes that freedom of expression is not absolute. Speech that violates the law, including hate speech and discrimination, should continue to have no place on campus. The Ontario government’s communication also notes that “[s]peech that violates the law is not allowed.”

Reporting requirements

As of September 2019, Ontario universities and colleges will be required to prepare an annual report on implementation progress and a summary of their compliance. The institution must publish the report online and submit it to the Higher Education Quality Council of Ontario.

Consequences of non-compliance

The Ministry of Training, Colleges and Universities may reduce operating grant funding to an institution that fails to introduce, report on, or comply with its free speech policy.

We will continue to monitor the government’s communications in relation to the free speech policy and will report on any further developments.

  • Many thanks to Shereen Aly for her assistance with this article.