College Students and the Law: Proactive Strategies

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College Students and the Law: Proactive Strategies

  1. 1. Student Speech: How Far is Too Far? Brenda Bowlby and Mireille Khoraych
  2. 2. Outline student free speech limits to student free speech • • • • Criminal Code • Law of Defamation • • Ontario Human Rights Code Contract strategies for limiting & remedying harmful student speech College Students and the Law: Proactive Strategies for Today’s Legal Challenges
  3. 3. Examples of Student Speech • • • • • • • • • • student newspapers posters, pictures and other displays distributing flyers and other material demonstrations verbal communications to the public internet postings and messages acts and gestures physical appearance and dress picketing words College Students and the Law: Proactive Strategies for Today’s Legal Challenges
  4. 4. Charter – Application 32. (1) This Charter applies (a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and (b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province. College Students and the Law: Proactive Strategies for Today’s Legal Challenges
  5. 5. Colleges as Government Actors • Colleges of applied Arts and Technology Act, 2002 • • Section 2(4): Defines colleges as agencies of the crown Thus, Charter, which applies to government actors, will apply to Colleges College Students and the Law: Proactive Strategies for Today’s Legal Challenges
  6. 6. Charter of Rights and Freedoms • Section 2(b) Everyone has the following fundamental freedoms: (b) freedom of thought, belief, opinion and expression, including freedom of the press and other means of communication • S. 2(b) has been found to encompass the following: • communications which convey or attempt to convey meaning • the content of the speech or expression • not the time, place or manner of expression • not a violent form of expression College Students and the Law: Proactive Strategies for Today’s Legal Challenges
  7. 7. R v. Breeden, 2009 BCCA 463(CanLII) • • • Terminated firefighter picketing lobby of courthouse and fire station with placards regarding government corruption and misconduct Charged with trespass and claimed that a trespass conviction would violate his freedom of expression Court of Appeal: freedom of expression not protected in these locations, as the expression was inconsistent with the location College Students and the Law: Proactive Strategies for Today’s Legal Challenges
  8. 8. Charter Limits – Section 1 • The rights and freedoms guaranteed by the Charter are subject to such reasonable limits prescribed by law, as can be demonstrably justified in a free and democratic society • Under s. 1, courts must balance competing fundamental values • Example: Municipal by-laws which restrict bill boards and other signs College Students and the Law: Proactive Strategies for Today’s Legal Challenges
  9. 9. Limits to Student Speech – Human Rights Code Section 13: (1) …publishes or displays before the public or causes…any notice, sign, symbol, emblem or other similar representation that indicates the intention of the person to infringe a right under Part I or that is intended by the person to incite the infringement of a right under Part I; (2) Subsection 1 shall not interfere with freedom of expression of opinion. College Students and the Law: Proactive Strategies for Today’s Legal Challenges
  10. 10. Limits to Student Speech – Human Rights Code • student speech does not fall directly into any of the 5 social areas that the Code applies to • educational programs offered by Colleges are “services” for the purposes of the Code • thus, where student speech does not engage s. 13, it will may otherwise be subject to the Code if it is found to be made in the course of the “service” provided by the College College Students and the Law: Proactive Strategies for Today’s Legal Challenges
  11. 11. Limits to Student Speech – Defamation • law of defamation developed to address harm to individuals’ reputations • elements of defamation: • a statement of fact which is untrue and tends to lower the reputation of individual/corporation in the eyes of the community; • identifies the individual referred to; and • is published and made available to third parties. College Students and the Law: Proactive Strategies for Today’s Legal Challenges
  12. 12. Limits to Student Speech – Defamation • can be used to enforce limits on student speech • websites on which defamatory statements are posted can be required to take them down • courts also assisting plaintiffs in identifying anonymous internet posters, so that actions against them can be commenced College Students and the Law: Proactive Strategies for Today’s Legal Challenges
  13. 13. Limits to Student Speech – Criminal Code • Section 300: • • Every one who publishes a defamatory libel that he knows is false is guilty of an indictable offence and liable to imprisonment for a term not exceeding 5 years. Section 298: • A defamatory libel is matter published, without lawful justification or excuse, that is likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule, or that is designed to insult the person of or concerning whom it is published. College Students and the Law: Proactive Strategies for Today’s Legal Challenges
  14. 14. Limits to Student Speech – Criminal Code • Section 181: • Wilfully publishes a statement, tale or news that he knows is false or is likely to cause injury or mischief to a public interest College Students and the Law: Proactive Strategies for Today’s Legal Challenges
  15. 15. Limits to Student Speech – Criminal Code • Section 318: purposely promotes or advocates killing members of an identifiable group (based on colour, race, religion or ethnic origin) or creates living conditions which will kill them • Section 319(2): incites hatred against an identifiable group (based on colour, race, religion or ethnic origin) in one of the following ways: • • • communicating statements by telephone, broadcasting or other audible or visible means occurring in a public place and where it is likely to be in breach of the peace College Students and the Law: Proactive Strategies for Today’s Legal Challenges
  16. 16. Limits to Student Speech - Contract • basis of relationship between students and College is contractual • limits to student speech can be made part of this contract • this contract is found in the information provided to the student prior to enrolment College Students and the Law: Proactive Strategies for Today’s Legal Challenges
  17. 17. Summary of Limits on Student Free Speech • • • • human rights violations • where the speech is discriminatory • where one publishes intention to discriminate or incites discrimination Criminal Code • defamatory libel • hate propaganda defamation • statement made to third party, which identifies individual and tends to lower their reputation contract • can be used to place limits on student speech College Students and the Law: Proactive Strategies for Today’s Legal Challenges
  18. 18. Practical Strategies to Limit Harmful Speech • preventing or limiting harmful speech • • Codes of Student Conduct • • student – College contract policies and use agreements remedial measures • injunctions • action for defamation or breach of contract by College • actions for defamation or human rights violations by other students, faculty, staff, and third parties • charges under Criminal Code College Students and the Law: Proactive Strategies for Today’s Legal Challenges
  19. 19. Student Speech: How Far is Too Far? Brenda Bowlby and Mireille Khoraych

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