09 Sep 2010 University of Calgary Appeal Board refuses to hear appeal of students found guilty of “non-academic misconduct”
CALGARY: The Appeal Board at the University of Calgary has refused to hold a hearing to consider the appeal of eight University of Calgary students found guilty of “non-academic misconduct” for having set up a controversial pro-life display on campus on April 8, 2010. The students have refused to comply with the University’s censorship demands that their signs be turned inwards in such a way no passersby can see the signs. The Appeal Board has upheld the finding of “guilty” without the benefit of a hearing at which the students and their lawyer could present evidence or arguments.
The students and their lawyer, John Carpay, will be available for comment at a press conference today:
Date: Thursday, September 9, 2010
Time: 10:30 a.m.
Place: MacKimmie Library Building, University of Calgary campus
U of C students Alanna Campbell, Leah Hallman, Cristina Perri, Ryan Wilson, Cameron Wilson, Peter Csillag, John Mcleod and Joanna Strezynski were found guilty of “non-academic misconduct” this past May, for having refused the University’s demand that they turn their pro-life display’s signs inwards such that no passersby could see the signs.
The U of C has informed these students that their conduct is a “Major Violation” in the same category with theft, vandalism, fraud, sexual assault, firearms misuse, and selling drugs. The students face penalties which include expulsion from the university.
“The Board of Governors has the authority to overturn this outrageous decision, and restore freedom of expression to all students at the University of Calgary, without discrimination based on viewpoint,” stated lawyer John Carpay, indicating the students intend to appeal this decision to the university’s highest authority.
“A government-funded, public university does not have the right to repudiate its own mission, that of being a forum for the pursuit of truth, by singling out one viewpoint for censorship,” continued Carpay.
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For more information contact John Carpay at (403) 619-8014.
Background Facts, 2006 to 2010, re: censorship at the University of Calgary
University of Calgary students active with Campus Pro-Life, a registered campus club, have been setting up the Genocide Awareness Project (hereafter “GAP”) display on campus twice per year since 2006: two days in the fall, and two days in the spring. GAP is a passive display consisting of large posters set up in a circle, such that people walking by can choose to look at all, some, or none of the signs.
Every GAP display from 2006 to 2010 has generated debate and discussion on campus. At no time have any of the Campus Pro-Life students engaged in violence or inappropriate behaviour, nor have the students or their display on campus been the target of violence by others on campus.
During the first four GAP displays, in 2006 and 2007, the University of Calgary posted its own signs on pathways leading towards the GAP display, indicating the exhibit was protected by the free expression guarantee of the Canadian Charter of Rights and Freedoms. At no time has the GAP display posed any threat to the safety or security of students on campus.
In the spring of 2008, after GAP had been set up on campus without problem or incident on four occasions, the University of Calgary (hereafter “U of C”) suddenly demanded that the students set up GAP with the signs facing inwards such that no passersby could see the signs. The U of C described its demand as “a reasonable compromise.” The U of C threatened the students with trespassing charges and with charges for non-academic misconduct – with the possibility of expulsion from the university – if the students failed to comply with this new demand.
The U of C has never explained why, in 2008, after a problem-free track record of two years’ duration, it abandoned its prior policy of tolerance for the students’ peaceful expression of a controversial opinion on campus. Further, in spite of repeated requests, the U of C has never explained or indicated what rule, regulation, bylaw or policy has been violated by the students.
Determined to continue exercising their free speech rights, the students set up the GAP display twice in 2008, for two days in the spring and again for two days in the fall. Campus Security took down the names, addresses, and student identification numbers of the students participating in these two GAP displays, but none of the students were charged with trespassing or with non-academic misconduct.
In January of 2009, Calgary Police officers, presumably acting on instructions from the U of C, went to the homes of students individually, and charged each student with “trespassing” for having been involved with the GAP display on campus two months earlier.
In March of 2009, the students attended at Provincial Court and entered a plea of “not guilty” to the trespassing charges. A trial date was set for November 4, 2009. Two days before trial, the Crown Prosecutors stayed the charges, ostensibly because the U of C had failed to provide the Crown with an indication as to what U of C rule, regulation, policy, or bylaw had been broken by the students.
In April of 2010, the students set up GAP for two days. This was the ninth GAP display on campus in 4½ years, and again took place without problem or incident. Campus Security instructed the students to turn their signs inwards, or leave campus. Campus Security did not indicate to the students what U of C rule, policy, bylaw or regulation the students were violating. The students refused to turn their signs inwards or leave campus, and continued to engage in the peaceful expression of their opinions on campus.
Several days after this ninth GAP display, a letter from Associate Vice-Provost Meghan Houghton, dated April 14, 2010, was sent to each of Alanna Campbell, Leah Hallman, Cristina Perri, Ryan Wilson, Cameron Wilson, Peter Csillag, Joanna Strezynski, and John McLeod. In separate letters, Ms. Houghton accused each of these eight students of violating the U of C’s Non-Academic Misconduct Policy. Ms. Houghton wrote:
“The specific violation that I am charging you with is listed in Section 4.10 of the Non-Academic Misconduct Policy, item e), which is a Major Violation, that reads “failure to follow the direction of a Campus Security officer or University official in the legitimate pursuit of his/her duties.” (underlining added for emphasis.)
The “Major Violation” category of offenses includes theft, vandalism, arson, violence, firearms misuse, uttering threats, and sexual assault. One of the penalties which can be imposed in respect of a Major Violation is expulsion from the university.
Counsel for the students wrote to Associate Vice-Provost Meghan Houghton on April 27, 2010. This letter included the following questions and requests:
“We hereby request copies of all relevant University of Calgary documents which enumerate and describe the duties and procedures of Campus Security at the University of Calgary.
We further request that you indicate which University of Calgary policy, bylaw or regulation (if any) provided the basis for the Campus Security request of my clients to cease from continuing with their peaceful expression of their views and opinions on campus.
We also request a copy of the University’s Policy in respect of non-academic misconduct prior to February 2010, as we note that the current policy came into force quite recently.
Who is instructing Campus Security to censor my clients’ peaceful expression of their views and opinions on campus? And what is the basis for these instructions?
Have other campus groups been asked to turn their signs inwards in such a way that no passersby can see the signs? If so, please provide particulars.
Which witness or witnesses, if any, will testify at the scheduled hearings?
Please be advised that we will require an opportunity to cross-examine the witnesses, and my clients will not answer any questions unless and until you have provided full disclosure in respect of the requests and questions above. If you require adjournments of these hearings in order to obtain and provide the necessary disclosure, please let me know, so we can reschedule them.”
No response to this April 27, 2010, letter has been forthcoming from Ms. Houghton, or from anyone else at the U of C.
Each of the eight students attended an individual “hearing” before Ms. Houghton. These hearings took place on April 28 and April 30. Prior to these hearings, the students specifically and expressly requested that their counsel be permitted to attend, which request was refused by Ms. Houghton. The students had an “Advisor” present during their hearings, whom the Non-Academic Misconduct Policy describes as a “support person” who “does not represent the student.”
During these hearings before Ms. Houghton, the students requested a copy of the job description, policy manual or other document or documents setting out the duties of Campus Security. Ms. Houghton responded by asserting that this information is not relevant, and that she would not provide it, or make any effort to obtain it.
At these April 28 and 30 hearings before Ms. Houghton,
- no evidence was put forward that the GAP display had posed a threat to the safety or security of anyone on campus;
- neither Campus Security nor the U of C administration indicated what rule, policy, regulation or bylaw the students have violated by peacefully expressing their opinion on campus;
- no opportunity was provided to cross-examine witnesses, or to challenge the legitimacy or validity of the “direction” of Campus Security to turn signs inwards;
- no evidence was provided in support of the proposition that Campus Security, or the U of C administration, has the right to censor the peaceful expression of opinion on campus; and
- no legal authorities were provided in support of the proposition that Campus Security, or the U of C administration, has the right to censor the peaceful expression of opinion on campus.
At the April 28 and April 30 hearings, each of the eight students presented the following statement:
“On April 8, 2010, I participated in setting up and running the Genocide Awareness Project on campus at the University of Calgary.
In so doing, I was peacefully exercising my Charter rights, as well as my contractual rights as a student at the University of Calgary.
This was the ninth time since 2006 that this passive display has been set up on campus – for a total of 18 days – always without problem or incident.
The first four times that the Genocide Awareness Project (“GAP” for short) was displayed on campus, the University of Calgary set up its own signs nearby, indicating that GAP was protected by the Canadian Charter of Rights and Freedoms free expression guarantee.
The University of Calgary has never explained why it reversed its policy, and why it abandoned its position that the students were exercising their Charter right to free expression.
In exercising our freedom of expression rights, we were not violating any University of Calgary policy, rule, bylaw or regulation. Accordingly, there was no valid or legitimate basis for the censorship attempted by Campus Security.
Further, censoring the peaceful expression of opinion on campus is not one of the duties of Campus Security. To the contrary, one of the duties of Campus Security is upholding and protecting the rights of all students to exercise their right to peaceful free speech. The censorship “direction” of Campus Security was not made in the legitimate pursuit of his/her duties.
No other campus group has been asked to turn its signs inwards in such a way that no passersby can see the signs. Even graphic and shocking signs, like those displayed on campus by Falun Gong protesting torture and persecution by the Chinese government, have not been censored by the university.
I understand that some individuals are offended by the GAP display. But the University’s response should be to encourage open debate, not to censor controversial opinions. Debate and discussion has ensued from each of the nine previous GAP displays on campus.
I agree that the University is entitled to govern and regulate academic, social, cultural, and other affairs on campus, pursuant to relevant statutes and regulations, and pursuant to its own valid policies, regulations and by-laws.
The University is not, however, entitled to discriminate against campus groups on the basis of the group’s philosophy, religion, viewpoint, belief, or other analogous grounds.
We seek to exercise the same right to free expression that all other students at the University of Calgary enjoy, without discrimination on the basis of content or viewpoint.”
Having charged the eight students in April with committing a Major Violation of the Non-Academic Misconduct Policy, Ms. Houghton in a letter dated May 5, 2010, found the eight students guilty of the same Major Violation she had charged them with a few weeks earlier.
In her May 5, 2010, letter Ms. Houghton included a warning that if the students set up the GAP display on campus again, and again failed to comply with the U of C’s censorship demand to turn the signs inwards or leave campus, penalties of increasing severity would be imposed. One of the penalties which can be imposed in respect of a Major Violation is expulsion from the university.
On May 14, 2010, counsel filed the students’ appeal of Ms. Houghton’s decision with Vice-Provost Ann Tierney, chair of the Appeal Board.
In a letter dated August 20, 2010, Ms. Tierney on behalf of the Appeal Board dismissed the students’ appeal without a hearing.
On September 2, 2010, counsel for the students wrote to the U of C’s general counsel Charlene Anderson reiterating the requests for information and answers to questions that were first expressed on April 27, 2010.
To date, no response to these April 27 and September 2 letters has been received.
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