Josh Dehaas: At U of T, police and protesters wait for the courts

Protesters are confident that the Charter, plus the righteousness of their cause – opposing what they see as genocide in Gaza – will prevail. I have doubts.

Photo Credit: Matt Gurney

By: Josh Dehaas

I wasn’t trying to eavesdrop but during the breaks inside the courtroom last week where the University of Toronto was asking for a court order to end the People’s Circle for Palestine, I still overheard a few interesting conversations among the keffiyeh-clad encampment supporters. The general consensus seemed to be that U of T doesn’t have a case. They seemed confident that the Charter rights to freedom of expression and assembly plus the righteousness of their cause —opposing what they see as genocide in Gaza — would force the judge to let them stay. While there are some good arguments on both sides and it’s difficult to predict these things, I have a feeling these students could be thwacked back into reality by police wielding batons as early as this week when Justice Koehnen releases his decision.

U of T wants an order authorizing police to clear out the tents and tarps that have occupied the greenspace at the centre of campus for seven weeks. In my opinion, Toronto police could have cleared the encampment at any point under the Trespass to Property Act, as they did within hours at York University. But since U of T opted for negotiations that predictably led to the encampment becoming entrenched, the police were understandably reluctant to confront protestors without the utmost legal certainty. While it’s obvious that this is a trespass, if the Charter of Rights and Freedoms applies to the university’s decision to enforce its property rights against the occupiers, then there’s an argument that ending the encampment is an unreasonable limit on the rights to expression and assembly.

Since this was only a hearing to decide what will happen between now and a theoretical full hearing of this issue, U of T has to meet the test for a mandatory injunction. There are multiple parts of this test. One is showing a strong prima facie case that they’re very likely to win at a full trial months or years down the line. Another is that they’ll suffer irreparable harm without the order (usually this means harm that can’t be repaired later on by one side paying the other). Also, that the “balance of convenience” favours them, which means U of T would be more inconvenienced by the order not being granted than the other side will be inconvenienced if the order is granted.

U of T was, in my opinion, able to show a strong prima facie case for the tort of trespass. Trespass means going onto the land — merely “bruising the grass” counts — without lawful justification. There’s no dispute that the occupiers took control of a fence that the administration had put up to keep them out. The protestors also put marshals at the gate to control who could come and go. There’s no dispute that they wouldn’t allow any visitors in before 11 a.m. There’s no dispute that some people would be denied entry to the encampment based on what they told the gatekeepers (one of the Line’s editors experienced this  personally). The grass has been more than merely bruised.

U of T also showed at least some irreparable harm, the most important one being the trespass itself. Once someone has trespassed, that cannot be repaired by paying them damages. Seems pretty obvious, right?

U of T was also fairly convincing at establishing irreparable harm toward community members. They showed a sign that said: “This is the intifada,” which brings to mind the spate of horrific suicide bombings in Israel in the early 2000s. (The encampment lawyers said “intifada” references mostly-peaceful Palestinian uprisings.) There were numerous upside-down red triangles, a symbol used in videos by the Hamas military wing above their targets. (The protest lawyers said that’s actually just the red triangle from the Palestinian flag, turned 90 degrees.) A Jewish professor said he was told: “Go back to your country.” Another said he was told “Jews should just go back to Europe.” There were reports that people around the encampment said “Go back to Poland” and “Death to the Jews,” plus a sign that said “Jews in the Sea.” The occupation lawyers’ response was that it’s anti-Palestinian racism to believe the Jewish understandings of these slogans, that they’re constitutionally protected speech, and that these incidents are hearsay or might have been committed by interlopers. Plus, look at these images of moving Shabbat dinners that prove Jews have no reason to be afraid or offended! And don’t you know there’s a genocide going on?

U of T made some other claims of harm that were, frankly, less convincing. For example, that the pro-Palestinian students and community members who have been expressing themselves on the lawn have prevented other people from expressing themselves in that area (this doesn’t ring true); that university activities have been disrupted (in minor ways like a ceremony for alumni postponed); that human waste posed a hazard (even though U of T opened up washrooms); and that U of T is suffering reputational damage because alumni and donors believe they’re endorsing the encampment by letting it stay, to which the respondents pointed out we know of only one donor who pulled funding, and there are many alumni who will like U of T more if it accedes to the campers’ demands.

The protesters’ best argument was that the Charter rights of students would be violated by enforcing the trespass law, so U of T has not made out a strong prima facie case. The law on this seems relatively settled with one wrinkle. In the 1990 decision McKinney v The University of Guelph, the Supreme Court had to decide whether universities’ mandatory retirement policies violated the Charter. They found that they didn’t because the Charter only applies to government. Just because you receive government funding and help to implement government policy objectives, that doesn’t mean you’re part of government. That the Charter doesn’t apply to universities seemed so obvious that, in the 2012 case Lobo v Carleton, an Ontario Superior Court judge struck out a claim by anti-abortion protesters against Carleton University after it blocked them from protesting on campus. Even though freedom of expression is a core value of universities, if the Charter doesn’t apply, you can’t say your constitutional right has been violated. The Ontario Court of Appeal agreed. 

The wrinkle is this. In the 1997 decision in Eldridge v British Columbia, the Supreme Court found the Charter applies where a private entity is implementing a specific governmental policy or program. In that case, the Charter applied to a hospital’s delivery of services because even though it was technically private (hospitals are non-profits) it was directed by the government to deliver health care. Does Premier Doug Ford’s 2018 directive that says Ontario universities must have free speech policies mean that the university is implementing a specific policy in this case? This view has some support from respected expression scholars but it’s a stretch to say, as the occupation lawyers claimed, that there is “an emerging consensus.” U of T’s response was that the university basically ignored the directive since it’s an autonomous institution that has had the same robust free expression policy in place since 1992. 

Even if the Charter applies, it seems likely that U of T’s free expression policy and its proposed order to authorize ending the encampment would be a constitutionally acceptable limit. U of T has said from the beginning that it is not opposed to peaceful protests on campus but that it won’t condone discriminatory language, structures, disruption to classes, protests after 10 p.m., megaphones or blocking entries and exits. These rules look a lot like the types of limits that Justice Brown of the Ontario Superior Court found to be reasonable in Batty v Toronto, where the issue was whether the Charter blocked the City of Toronto from ending the Occupy Toronto encampment in St. James Park. Expression rights were technically infringed, but the city’s ban on camping was a clearly justified limit.

“Toronto is a densely populated city,” Justice Brown wrote. “Competing demands for the use of its limited parklands are numerous. Without some balancing of what people can and cannot do in parks, chaos would reign; parks would become battlegrounds of competing uses, rather than oases of tranquility in the concrete jungle. Or, parks would become places where the stronger, by use of occupation and intimidation, could exclude the weaker or those who are not prepared to resort to confrontation to carve out a piece of the park for their own use,” he said.

“The Charter does not permit the Protesters to take over public space without asking, exclude the rest of the public from enjoying their traditional use of that space and then contend that they are under no obligation to leave,” Justice Brown concluded. "By taking that position and by occupying the Park, the Protesters are breaking the law.”

Is this case really all that different? We’re about to find out.

Josh Dehaas is Counsel with the Canadian Constitution Foundation and co-host of the Not Reserving Judgment podcast, which is available on Spotify, Apple and YouTube.

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