Bob Mackin
Another judge has ruled that the Charter of Rights and Freedoms does not apply to a university in British Columbia.
In a Dec. 15 Nanaimo verdict, B.C. Supreme Court Justice Barbara Young upheld the Vancouver Island University (VIU) suspension of a student who committed misconduct during anti-Israel protests.
In October 2024, VIU banned Sara Kishawi, a 2024 graduate, for two years retroactively due to vandalism, harassment, disruption of exams and unauthorized access to restricted university space.
Kishawi, who is from Gaza, went to court in a bid to quash the suspension after losing her appeal to the VIU associate vice-president of student affairs in March. She argued that the suspension was out of proportion and failed to consider the infringement of her constitutional right to freedom of expression.
Not governmental
Sara Kishawi (centre) during anti-Israel student protests at VIU in 2024. (Kishawi/IG)
The B.C. Federation of Students and B.C. Civil Liberties Association intervened, to argue that VIU was responsible for implementing a governmental program. Specifically, public education.
Young, however, decided that VIU has “full autonomy” to make policies, without government intervention. While the cabinet appoints a board of governors and the minister responsible may require reports under the University Act, that “does not constitute government interference or action.”
Young also said the university’s rules “form the boundaries of acceptable behaviour on campus and create the basis for academic freedom by ensuring the respectful conduct of individuals on campus.”
Kishawi co-organized a VIU protest camp cleared in August 2024 after a court order.VIU unsuccessfully claimed $870,000 in protest-related damages.
B’nai Brith Canada intervened in favour of the camp’s removal, due to the presence of what it said were pro-Hamas slogans and symbols.
From Antifa to anti-abortion
Young’s ruling is similar to a June 2024 decision by Justice Christopher Greenwoodagainst the UBC Free Speech Club and members Noah Alter, Jarryd Jaeger and Cooper Asp.
They sued the University of B.C. and the province after the cancellation of a scheduled January 2020 Robson Square campus talk by Andy Ngo, a critic of Antifa protests that often feature intimidation and violence.
Greenwood struck the province from the claim because of two 1990 Supreme Court of Canada decisions about mandatory retirement that said the University of Guelph and University of B.C. were not covered by the Charter.
Greenwood also cited a 2016 B.C. Court of Appeal decision against the Youth Protecting Youth anti-abortion group at the University of Victoria.
“Both the Chambers judge and the Court of Appeal found in [the UVic case] that regulating or prohibiting space controlled by the university from being used for expressive purposes was not sufficient to constitute the performance of a government function,” Greenwood wrote.
The club and three members filed for an appeal in May.
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