By Mike Hermida
In a press conference on Jan. 17, Minister of Training, Colleges, and Universities Merrilee Fullerton announced cuts to the Ontario Student Assistance Program, a slight domestic tuition cut, and the implementation of the Student Choice Initiative (SCI). While the SCI appears to save students money and increase their power to choose, it also received pushback from many students and organizations across Ontario.
As was reported in The Leveller last month, the SCI is a policy that will allow college and university students to opt-out of non-essential fees. It is to be implemented at the start of the upcoming academic year. At Carleton University, for example, these fees account for about $100 of the $1,000 in ancillary fees most students pay.
Students across Ontario, myself included, are deeply worried about the effects the policy will have on campus groups. It threatens the funding of organizations like the Ontario Public Interest Research Group, student unions, the Canadian Federation of Students, and student newspapers (including us at The Leveller).
While there are numerous protests against the initiative, including a student walk out planned by the CFS, as a law and legal studies student, I am interested in the following question: can student organizations fight the SCI through the legal system?
In answering this question, the first place I would look to is the Canadian Charter of Rights and Freedoms. Specifically, since the SCI poses a threat to institutions like student unions, university and college newspapers, and on-campus LGBTI safe spaces, we could make the case that the policy violates the constitutional freedom of association, freedom of the press, and equality rights.
However, as Mohammad Akbar, office and communications co-ordinator at the Graduate Students’ Association at Carleton pointed out in an interview with The Leveller, a Charter challenge may be ineffective. This is because the Progressive Conservative’s majority government has proven that it is not afraid to use the notwithstanding clause to override our rights and freedoms — as when Premier Doug Ford threatened to invoke it to slash the size of Toronto’s municipal government. “Your human rights being violated is not going to stop this government,” said Akbar.
If Ford were to invoke the clause this time, it would mean that we can throw equality rights and fundamental freedoms out the window.
According to Brad Evoy, volunteer, outreach and programming coordinator at OPIRG Carleton, another problem with pursuing a legal path is that “even if it is successful, it would be kinda post-fact.” A court case of this calibre may take months or even years and would take even longer if it got appealed. So, even if the legal challenge would be successful, “it would have good effect for the future, but the damage would still be done by the initiative.”
Another possibility is to ask a court to file an injunction on the grounds that it violates the rights and freedoms of students. This injunction would differ from a Charter challenge: A Charter challenge would consist of asking a court to strike down Ford’s policy because it violates the Charter. On the other hand, an injunction would be a court order to halt the implementation of Ford’s policy before the court definitively ruled on its constitutionality.
However, whether a court would offer an injunction to students remains to be seen. “Would a judge grant (an injunction)?” said Akbar, “it is hard to say. It’d be cool if they did.”
Of course, when it comes to an injunction, as with a Charter challenge, the government can always invoke the notwithstanding clause.
Nevertheless, it may be possible to force universities to declare all ancillary fees essential thanks to the existing legally binding contracts.
This is because universities often have contractual agreements to pay the ancillary fees they collect to their student unions. (In turn, unions usually have agreements with campus organizations to fund them through these fees.) In order not to break the university-union contracts, universities may be legally forced to declare all ancillary fees essential.
The elephant in the room with all of these legal remedies is that they all cost a lot of money. Our underfunded unions and broke college and university students may not be able to afford to seek legal action.
It also seems unlikely that small campus legal clinics could defeat the provincial government in court.
Ultimately, obstacles along the legal path to fighting the SCI demonstrate that the law is limited in what it can do to help us students. Although I always support diversity of tactics and legal action may lead to some good, it is by no means a replacement for other forms of activism.
For those looking to resist the SCI, may I suggest heeding the advice that Ottawa lawyer Daniel Tucker-Simmons gave to the Herongate Tenant Coalition? (Herongate is an Ottawa neighbourhood where hundreds of predominantly racialized, low-income residents have been evicted.)
Tucker-Simmons said, in a video posted to the coalition’s Twitter account, that “the only thing the law can do is support you in your organizing efforts.” He continued saying that “the law is not there to help you, the law is there to make people money.”
The same is true about the SCI. The policy was made by the provincial government to attack checks and balances on the government like unions, newspapers, and advocacy groups. Fighting it through the legal system is like fighting fire with fire. The law cannot be the students’ resource.
In the words of Tucker-Simmons, “You all have much more power than I do (as a lawyer)… The only thing you can do to stop it is to organize and stick together.”