International
The 1997 UNESCO Recommendation Concerning the Status of Higher-Education Teaching Personnel defines academic freedom as:
26. Higher-education teaching personnel, like all other groups and individuals, should enjoy those internationally recognized civil, political, social and cultural rights applicable to all citizens. Therefore, all higher-education teaching personnel should enjoy freedom of thought, conscience, religion, expression, assembly and association as well as the right to liberty and security of the person and liberty of movement. They should not be hindered or impeded in exercising their civil rights as citizens, including the right to contribute to social change through freely expressing their opinion of state policies and of policies affecting higher education.
28. Higher-education teaching personnel have the right to teach without any interference, subject to accepted professional principles including professional responsibility and intellectual rigour with regard to standards and methods of teaching. Higher-education teaching personnel should not be forced to instruct against their own best knowledge and conscience or be forced to use curricula and methods contrary to national and international human rights standards. Higher education teaching personnel should play a significant role in determining the curriculum.
29. Higher-education teaching personnel have a right to carry out research work without any interference, or any suppression, in accordance with their professional responsibility and subject to nationally and internationally recognized professional principles of intellectual rigour, scientific inquiry and research ethics. They should also have the right to publish and communicate the conclusions of the research of which they are authors or co-authors.
31. Higher-education teaching personnel should have the right and opportunity, without discrimination of any kind, according to their abilities, to take part in the governing bodies and to criticize the functioning of higher education institutions, including their own, while respecting the right of other sections of the academic community to participate, and they should also have the right to elect a majority of representatives to academic bodies within the higher education institution.
In Canada
The strongest legal protections for academic freedom in Canada are contractual and are embedded in and enforced through collective bargaining agreements negotiated by academic staff unions.1
In several important decisions, labour arbitrators have determined that academic freedom serves an essential role in a democratic society and requires a broad interpretation. Arbitrator Sims, in University of Saskatchewan, held that: “…academic freedom and its protections are concepts to be interpreted liberally in ways that allow them to achieve their purpose.”2 In University of Manitoba Faculty Association: “The principle of academic freedom is of fundamental importance not only to the university and professors, but to the whole community.”3
Canadian courts have rarely addressed the issue of academic freedom, but when doing so have granted it a broad and liberal interpretation. In 1990, Mr. Justice La Forest wrote for the majority in McKinney v. University of Guelph (a mandatory retirement case), in obiter dicta, that academic freedom is “an issue of pressing and substantial importance”4 as it is necessary to allow “free and fearless search for knowledge and the propagation of ideas”5 that is “essential to our continuance as a lively democracy.”6
In Maughan v. University of British Columbia, the court found that academic freedom, understood as the “freedom to express and explore ideas to advance both knowledge and understanding,”7 is akin to a Charter value insofar as it is “a critically important value in a free and democratic society.”8 In Pridgen v. University of Calgary, Madam Justice Paperny wrote: “In my view, there is no legitimate conceptual conflict between academic freedom and freedom of expression. Academic freedom and the guarantee of freedom of expression contained in the Charter are handmaidens to the same goals; the meaningful exchange of ideas, the promotion of learning, and the pursuit of knowledge.”9 In Parent c. R, the court stated that “academic freedom and the importance of institutions of higher learning and academic research are key components of a democracy that values freedom of thought and expression.”10
1 Michael Lynk, “Academic Freedom, Canadian Labour Law and the Scope of Intra-mural Expression.” Constitutional Forum, Vol. 29, No. 2 (2020), pp. 45-64.
2 J.R.S. Prichard. Public statement, issued by the University of Toronto, 9 December 1998.
3 McKinney v University of Guelph1990 CanLII 60 (SCC), [1990] 3 SCR 229 at page 281.
4 University of Saskatchewan v University of Saskatchewan Faculty Association, 2015 CanLII 27479 (SK LA),<https://canlii.ca/t/gj429>.
5 McKinney (SCC) at page 282.
6 McKinney (SCC) at pages 286-287
7 Maughan v. UBC, 2008 BCSC 14, at para. 2.
8 Maughan(BCSC) para. 2.
9 Pridgenv. University of Calgary, 2012 ABCA 139, at para. 117.
10 Parent c. R., 2014 QCCS 132, at para. 123.