Some AUFA members have expressed concern over the recent “Important Election Communication” emailed to all staff on April 25, 2023, advising that staff “ability to communicate with the public about Athabasca University (AU) will be limited during the election period.” Referencing section 134.1 of Alberta’s Election Act, which prohibits government departments (including universities) from using publicly-funded assets to promote partisan positions during an election, AU has issued a strongly worded warning that could discourage open discussion and intellectual rigor on topics relevant to the upcoming provincial election. This includes individual perspectives on government policies concerning post-secondary education in Alberta. AUFA supports and encourages all members to exercise their right to free speech and to engage with political issues important to them.
Section 2(b) of the Charter of Rights and Freedoms provides every person in Canada the freedom of “opinion and expression”. We often refer to this right as ‘freedom of speech’ or a ‘guarantee of free expression’. The Supreme Court of Canada:
“has repeatedly held that liberal democracy demands the free expression of political opinion, and affirmed that political speech lies at the core of the Canadian Charter of Rights and Freedoms’ guarantee of free expression. It has held that the freedom of expression includes the right to attempt to persuade through peaceful interchange. And it has observed that the electoral process is the primary means by which the average citizen participates in the public discourse that shapes our polity.” (Harper v Canada, 2004 SCC 33, at para 1)
Further, as noted in the AU email, academics enjoy unique freedoms of expression in their areas of expertise, namely “academic freedom”. This right is acknowledged in our Collective Agreement at Article 11. Academic and Professional Freedom (emphasis added):
11.1 General
Although these statements occur within the body of this Agreement, the various items herein are not subject to negotiation, abrogation, or diminution in any way. They may, however, be subject to later interpretation. Staff Members shall not be hindered or impeded in any way by the Board or the Association from exercising their legal rights as citizens, nor shall they suffer any penalties because of the exercise of such legal rights.
11.2 Academic Freedom
The common good of society depends upon the search for knowledge and its free exposition. Academic freedom in universities is essential to both these purposes in the teaching function of the university as well as in its scholarship and research. The parties agree that they will not infringe or abridge the academic freedom of any member of the academic community. Members of the University community are entitled, regardless of prescribed doctrine, to freedom in carrying out research and in publishing the results thereof, freedom of teaching and of discussion, freedom to criticize Athabasca University and the Association, and freedom from institutional censorship. Academic freedom does not require neutrality on the part of the individual. Rather, academic freedom makes commitment possible. Academic freedom carries with it the duty to use that freedom in a manner consistent with the scholarly obligation to basic research and teaching, course development and delivery in an honest search for knowledge.
Like all rights, however, they are limited, but importantly “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” A limit on fundamental freedom must be rationally connected to the law’s purpose (in other words, it cannot be arbitrary), and the limit imposed must minimally impair the Charter right in question (meaning the limit must be as minimal as possible).
During elections, Alberta has imposed a limit to the Charter freedom of opinion and expression, specifically prescribed by the Election Act, RSA 2000, c E-1, at section 134.1:
(2) During an election period, a department or a Provincial corporation shall not advertise or publish any information about its programs or activities unless the advertisement or publication
(a) is required by law,
(b) is required at that time
(i) to solicit proposals or tenders for contracts or applications for employment, or
(ii) because it relates to important matters of public health or safety,
(c) is a continuation of earlier publications or advertisements and is required for ongoing programs of a department or a Provincial corporation, or
(d) is an ordinary and routine part of the programs or activities of a department or a Provincial corporation and is not made for a partisan political purpose.
It is important to be clear on what is prohibited, and to whom the limit applies. This is not a blanket prohibition on free speech or intellectual engagement on political matters of importance to you as an employee of Athabasca University. Nor is it principally concerned with the message, as the specific provision prohibits using publicly-funded university-owned resources for purposes inconsistent with the usual functions of a university. In this way, AU staff acting on behalf of the University are prohibited from using university assets, including financial contributions, to potentially influence the outcome of an election.
Like other jurisdictions, Alberta’s Election Act addresses the potential misuse of public funds, and the “supposition that uncontrolled spending could favour the messages of wealthier citizens or adversely affect the ability of less wealthy citizens to become informed on electoral issues is not irrational, particularly in a regime where party spending is limited. It follows that spending limits may, at least in principle, promote electoral fairness.” (Harper v Canada, 2004 SCC 33, at para 30) It may be helpful to better understand Alberta’s Election Act, s 134.1, through definitions in the Canada Elections Act, SC 2000, c 9:
Definitions 2(1)
election advertising means the transmission to the public by any means during an election period of an advertising message that promotes or opposes a registered party or the election of a candidate, including by taking a position on an issue with which a registered party or candidate is associated. For greater certainty, it does not include
(a) the transmission to the public of an editorial, a debate, a speech, an interview, a column, a letter, a commentary or news;
(b) the distribution of a book, or the promotion of the sale of a book, for no less than its commercial value, if the book was planned to be made available to the public regardless of whether there was to be an election;
(c) the transmission of a document directly by a person or a group to their members, employees or shareholders, as the case may be;
(d) the transmission by an individual, on a non-commercial basis on the Internet, of his or her personal political views; or
(e) the making of telephone calls to electors only to encourage them to vote. (publicité électorale)
We are reposting here a detailed blog from 2019, that further clarifies the Election Communication Policy and highlights that students, employees and professional and academic staff have the right to participate as individuals in the political process, as long as they are not using university resources to do so. Importantly, as mentioned at the end of the communication from AU, the limit on freedom of expression does not infringe on academic freedom.
Lastly, AUFA encourages all members to participate fully in the upcoming election, in ways that engage with important issues and that uphold our rights and privileges in a free and democratic society.
Here is the blog post from 2019:
As you may be aware, VP Kristine Williamson sent an email regarding communications during the election period. Some members have expressed confusion and concern about the possible limitations. AUFA has sought information from Ms. Williamson, Elections Alberta, the Ministry, and sister organizations to clarify this communication.
Last month, the Government of Alberta published its Election Communication Policy, which restricts “government advertising and other communications activity to ensure that governments neither involve themselves in nor influence elections.” Universities are specifically mentioned as an entity that is to comply with this policy which is available online.
The Elections Act allows the University to continue with communications that are “continuous and “required” but the institution must ensure its communications are in step with provincial requirements during the writ period. The policy is not intended to limit or interfere with academic freedom and does not preclude staff members from engaging with political parties, their candidates or other political party representatives in conducting teaching and research.
Some key guidelines:
Athabasca University cannot make contributions (money or donations in-kind) to any political party or candidate running in an election.
University funds cannot be used to cover the cost of attending partisan political fundraising or campaign events.
University resources cannot be used to promote partisan political events or campaigns.
This would include using your AU email address for partisan political purposes, including distributing campaign information, forwarding campaign materials received in your AU email inbox, or using university mailing or email lists to distribute campaign materials.
Election signs and posters for candidates may only be placed on the publicly available bulletin boards inside university buildings. Signs placed elsewhere may be removed.
AUFA will reiterate that the University must recognize the right of students, employees, and professional and academic staff members to participate as individuals in the political process provided they do not use university resources to do so. The pursuit of academic activity related to the election is an important and acceptable activity, subject to applicable legislative frameworks.
If you are planning an event or meeting during this time where you would normally consider extending invitations to provincial elected officials, please contact your supervisor first.