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.
I'm all for them being kicked off the university property. Whining here about something happened 5000 miles away when you have zero answers as to what Israel should have done on October 8th makes your position pointless. You won't change a thing protesting here; you'll just make other peoples lives more difficult. Go protest on Parliament hill if you feel the need. But I still hold that all these pro- and anti- Palestine protests are a complete and total waste of time and energy.
If we have to constantly turn to the courts for PERMISSION to enforce well established laws, then we truly are doomed. Everything will end up in court and nothing will get done. Gutless leadership has become the norm. Can’t lead them by the heart then lead them by the ….
This is probably one of the best articles (easily among freelancers) that I have read here. Bravo. It's amazing how little intelligent legal analysis there has been on this issue. If anyone knows any more--regardless of what legal end the writer comes to--please reply with links!
A very worthwhile read. I did not know that the Charter does not apply to universities. But I should have - they have historically been the most robust institutions in democratic countries to further understanding and knowledge by standing up for free speech. But the demonstrators have made their point. Their education is primarily publicly funded. They didn’t sign on to advise the university on their investment decisions or research partnerships. If you don’t like it, find another university. Time to go home kids!
It's quite interesting to actually learn what charter does or doesn't apply where as provinces also have charters of rights (or bills of rights depending on the province). I've had to study it in my degree and it's interesting. In some aspects we have more rights than we know, but in others we have less than we think.
Police and governments have become accustomed to turning to the courts for injunctions to justify enforcing the law even though it shouldn't be necessary. I wonder if courts have become accustomed to that arrangement as well? If the police or a government stepped in without an injunction, would a court readily intervene on behalf of the protesters for what they'd consider lack of due process?
I don’t think the police would arrest them because they believe the law is unclear. Private property rights vs free speech rights but in my view property rights must take precedence because the duration of the assembly to freely speak has taken the form of an occupation. The right to free speech, like all rights , have reasonable limits. I think the police should be able to remove the protesters after a reasonable length of time without needing a court injunction. That may be the case in future if an injunction is forthcoming.
I do wonder, though, whether the civil authorities will actually use “force” to evict the “trespassers” [if that is how their behaviour is ultimately categorized], and also whether the police will actually enforce any injunction that the Judge may issue.
Because, readers will recall the police reluctance to do so, when the protesters were aboriginals (like in the railway blockades, or in Caledonia), as well as in connection with the convoy protests; and they may also recall the bridge blockade in a Jewish neighbourhood, which persisted until the Prime Minister whispered in the ear of the Toronto Police Chief.
Then, too, there was the blockade of a dinner for the visiting Italian Prime Minister, causing its cancelation - as police tolerantly looked on.
While by contrast, there was a different result, in a similar school trespass situation, in Alberta – where, last time I looked, the Charter also applies.
Accordingly, it may be a bit premature to predict whether the asserted rights of the University, as property owner, will be sustained in this case.
And we might also prudently ask ourselves why this became a legal conundrum in Toronto, while it was not allowed to become one in Alberta.
With respect, I say the indigenous protestors, whether you agree with them or not, readily qualify as having different rights and a much more complex history of interactions with Canadian governments and law enforcement than a random group of lickspittle Hamas groupies.
Yes, aboriginals may have unique claims as a result of their status, and those claims may be advanced like any other appeal to the Courts - or for that matter., any other political demand or plea for public support.
But that no more justifies unlawful behaviour in pursuit of those claims, than any other identity characteristic, belief, or opinion.
Priests don’t get to block access to or occupy abortion clinics, or badger their users, despite the undoubted sincerity of their religious beliefs or their Charter guarantee of freedom of religion.
Sri Lankans, concerned about genocide and war crimes “back home”, do not get to block the Gardiner expressway at rush hour. Though they did.
And sincere anti-vaxxers don’t get to occupy the Ambassador Bridge.
Nor would any of these folks have a right to camp out on your front lawn, so long as they occasionally intone the words “Charter of Rights”.
Accordingly, the questions being litigated in this case include whether, or how, or the extent to which invoking “the Charter”, suspends the normal rights of a private property owner to restrict the use of its own land to those who are accustomed to, and are also permitted to, use it.
Is “private property” really “private”? Because normally, an owner (which, in this case, be it noted, is not a state or a government) may either permit access to its property, or may deny it.
So. does the Charter, suspend that right, because this group of protesters wants to send a political message?
Or put differently: can the squatters instrumentally appropriate the property and effectively make it their own - to be used for their own purposes and not for those of the owner? Despite the owner’s protest?
Especially if many of them have no connection to the owner (like as employees or students). Can strangers just take over in this way?
Is that “trespassing” or it is unchallengeable “free speech” ; and does the nature of the political message matter? Could Putin supporters make a similar claim to use this space for THEIR purposes?
And so on.
Finally, this is an interesting case, because it is raises the same kinds of issues that are now being litigated in respect of public parks - where people also want to set up encampments or engage in behaviours (like dealing in or doing drugs or discarding dirty needles), that have the effect of limiting access by traditional users or preventing traditional uses.
All of which is interesting because the Charter carefully avoids protecting property rights; while, the Constitution vests authority over property and civil rights in the provinces. So does the Charter erase, or suspend, or qualify those property rights; and if so how, by how much?
Finally, it is interesting to compare the practical social outcome in Toronto, with that of Alberta schools, where a similar situation arose, and was sorted out in a day or so.
I take the liberty to append this brief addendum, written on Sunday June 30. We were talking about enforcing the law in a timely way, which seems to have happened in Alberta, but certainly not in Toronto. Tonight 20 - that is 20 purportedly pro-Palestinian protesters - have caused the cancelation of the annual gay pride parade. Twenty. how was that possibly allowed to happen; and why were they not cleared out of the way, at the very least? Where is the rule of law in this equation?
Thank you for summarizing the case law that will undoubtedly influence this decision. Looks to me like it should be pretty clear cut for U of T to win this. Though I'm not sure why it had to reach this point - they probably should've ejected them as soon as they refused to leave and not negotiated at all.
But now they've sort of cooked their own goose. (And these students have made it unlikely that future short protests will be allowed in the future.)
Additionally - it seems unlikely based on how other camps have gone, that this is mostly students in the camp - its likely a whole lot of hostile actors just looking to stir up trouble. Too bad the police aren't investigating individuals for hate speech with some of the things they're saying.
The analysis is excellent: it properly ignores an Alberta Court of Appeal decision, as it is diametrically opposed to the Ontario Court of Appeal decision as to whether the state action doctrine applies to universities (so that the Charter applies). Moreover, the Alberta decision is distinguishable as it applied to pecuniary barriers to speech on campus, rather than semi-permanent occupation of land on campus, to the exclusion of all others. I do not agree that trespass is per se irreparable harm as damage to grass or loss of pecuniary gain from loss of use of the land can be compensated in damages. It is not normally necessary to show a strong prima facie case to get an interlocutory injunction (as distinct from an arguable case) but if the only relief sought is in effect an injunction, a strong prima facie case must be made out. That point was missed owing, I suspect, to the need to focus on THIS injunction application. Balance of convenience is taken into account where an interlocutory injunction is sought and one of the factors taken into account includes maintaining the status quo. As the encampment has been in place for several months and was initially facilitated by the university, that factor favours the protesters. That the speech is offensive to many, and I suspect most, Canadians is irrelevant if the Charter is engaged.
With the above caveats, and having regard to the need to write for a lay audience, this is MUCH better legal analysis than one normally gets on-line, or in print media.
Due to hierarchy of the courts, the AB appeal decision is actually much less influential as there is plenty of related precedent existing in ON already to draw from.
As the protestors control access to the “site” perhaps the university could fence the area off outside the current encampment enclosure and deny entry or exit to the encampment.
There could be some merit in supporting the Palestine supporters if there were at least one hot or semi hot woman protester in the group. Good Lord, that has to be one of, if not the most motley group of protestors seen since the 1960's. Why is the left so derived of good looks?
JULY 2. An injunction was issued this afternoon. The protesters must leave by tomorrow. The question is whether they will, and what, if anything, the police (or government) will do to enforce the judicial order, because some police forces take the view that that is wholly in their discretion.
The reports of appalling behaviour (including incitement to hatred against Jewish people, "nudge, nudge, wink, wink" "coded expressions" of support for violence against Jews and the like are deeply unsettling. I hope that the UofT wins its case and that the occupiers are removed.
What is really needed is a philisophical rethink and amendement to the Charter of Rights & Freedoms.
It really should be the Charter of Rights & Responsibilities, Freedoms & Duties.
Rights and freedoms do not exist without duties and responsibilities - on those expected to allow for or even outright provide these 'rights', as well as on those who expect to enjoy said rights & freedoms.
This is where educators and parents have outright failed the last two generations of students from kindergarten through graduate school - young adults who scream about rights and freedoms seem completely oblivious to the fact that their expectations and presupposed entitlement to freedoms come with responsibilties on themselves and on others, and that their rights are contingent on the duties of others to provide for them and/or guarantee them with time, effort, and treasure.
I'm all for them being kicked off the university property. Whining here about something happened 5000 miles away when you have zero answers as to what Israel should have done on October 8th makes your position pointless. You won't change a thing protesting here; you'll just make other peoples lives more difficult. Go protest on Parliament hill if you feel the need. But I still hold that all these pro- and anti- Palestine protests are a complete and total waste of time and energy.
Agreed — go try occupying Ottawa. Apparently it’s an easy mark.
As far as I'm concerned, you can occupy Parliament Hill until the cows come home. But your "protest" cannot make other people's lives miserable.
Agreed, and my point is that Ottawa won’t stand for it any more, so neither should Toronto.
Thank you for breaking down the legal arguments of each position. Great article!
If we have to constantly turn to the courts for PERMISSION to enforce well established laws, then we truly are doomed. Everything will end up in court and nothing will get done. Gutless leadership has become the norm. Can’t lead them by the heart then lead them by the ….
This is probably one of the best articles (easily among freelancers) that I have read here. Bravo. It's amazing how little intelligent legal analysis there has been on this issue. If anyone knows any more--regardless of what legal end the writer comes to--please reply with links!
A very worthwhile read. I did not know that the Charter does not apply to universities. But I should have - they have historically been the most robust institutions in democratic countries to further understanding and knowledge by standing up for free speech. But the demonstrators have made their point. Their education is primarily publicly funded. They didn’t sign on to advise the university on their investment decisions or research partnerships. If you don’t like it, find another university. Time to go home kids!
It's quite interesting to actually learn what charter does or doesn't apply where as provinces also have charters of rights (or bills of rights depending on the province). I've had to study it in my degree and it's interesting. In some aspects we have more rights than we know, but in others we have less than we think.
Justin Trudeau and the courts rendered the Charter obsolete and useless. Now it is a make-believe mirage that will be misused more and more.
Police and governments have become accustomed to turning to the courts for injunctions to justify enforcing the law even though it shouldn't be necessary. I wonder if courts have become accustomed to that arrangement as well? If the police or a government stepped in without an injunction, would a court readily intervene on behalf of the protesters for what they'd consider lack of due process?
I don’t think the police would arrest them because they believe the law is unclear. Private property rights vs free speech rights but in my view property rights must take precedence because the duration of the assembly to freely speak has taken the form of an occupation. The right to free speech, like all rights , have reasonable limits. I think the police should be able to remove the protesters after a reasonable length of time without needing a court injunction. That may be the case in future if an injunction is forthcoming.
This is a useful and illuminating piece.
I do wonder, though, whether the civil authorities will actually use “force” to evict the “trespassers” [if that is how their behaviour is ultimately categorized], and also whether the police will actually enforce any injunction that the Judge may issue.
Because, readers will recall the police reluctance to do so, when the protesters were aboriginals (like in the railway blockades, or in Caledonia), as well as in connection with the convoy protests; and they may also recall the bridge blockade in a Jewish neighbourhood, which persisted until the Prime Minister whispered in the ear of the Toronto Police Chief.
Then, too, there was the blockade of a dinner for the visiting Italian Prime Minister, causing its cancelation - as police tolerantly looked on.
While by contrast, there was a different result, in a similar school trespass situation, in Alberta – where, last time I looked, the Charter also applies.
Accordingly, it may be a bit premature to predict whether the asserted rights of the University, as property owner, will be sustained in this case.
And we might also prudently ask ourselves why this became a legal conundrum in Toronto, while it was not allowed to become one in Alberta.
With respect, I say the indigenous protestors, whether you agree with them or not, readily qualify as having different rights and a much more complex history of interactions with Canadian governments and law enforcement than a random group of lickspittle Hamas groupies.
Yes, aboriginals may have unique claims as a result of their status, and those claims may be advanced like any other appeal to the Courts - or for that matter., any other political demand or plea for public support.
But that no more justifies unlawful behaviour in pursuit of those claims, than any other identity characteristic, belief, or opinion.
Priests don’t get to block access to or occupy abortion clinics, or badger their users, despite the undoubted sincerity of their religious beliefs or their Charter guarantee of freedom of religion.
Sri Lankans, concerned about genocide and war crimes “back home”, do not get to block the Gardiner expressway at rush hour. Though they did.
And sincere anti-vaxxers don’t get to occupy the Ambassador Bridge.
Nor would any of these folks have a right to camp out on your front lawn, so long as they occasionally intone the words “Charter of Rights”.
Accordingly, the questions being litigated in this case include whether, or how, or the extent to which invoking “the Charter”, suspends the normal rights of a private property owner to restrict the use of its own land to those who are accustomed to, and are also permitted to, use it.
Is “private property” really “private”? Because normally, an owner (which, in this case, be it noted, is not a state or a government) may either permit access to its property, or may deny it.
So. does the Charter, suspend that right, because this group of protesters wants to send a political message?
Or put differently: can the squatters instrumentally appropriate the property and effectively make it their own - to be used for their own purposes and not for those of the owner? Despite the owner’s protest?
Especially if many of them have no connection to the owner (like as employees or students). Can strangers just take over in this way?
Is that “trespassing” or it is unchallengeable “free speech” ; and does the nature of the political message matter? Could Putin supporters make a similar claim to use this space for THEIR purposes?
And so on.
Finally, this is an interesting case, because it is raises the same kinds of issues that are now being litigated in respect of public parks - where people also want to set up encampments or engage in behaviours (like dealing in or doing drugs or discarding dirty needles), that have the effect of limiting access by traditional users or preventing traditional uses.
All of which is interesting because the Charter carefully avoids protecting property rights; while, the Constitution vests authority over property and civil rights in the provinces. So does the Charter erase, or suspend, or qualify those property rights; and if so how, by how much?
Finally, it is interesting to compare the practical social outcome in Toronto, with that of Alberta schools, where a similar situation arose, and was sorted out in a day or so.
I take the liberty to append this brief addendum, written on Sunday June 30. We were talking about enforcing the law in a timely way, which seems to have happened in Alberta, but certainly not in Toronto. Tonight 20 - that is 20 purportedly pro-Palestinian protesters - have caused the cancelation of the annual gay pride parade. Twenty. how was that possibly allowed to happen; and why were they not cleared out of the way, at the very least? Where is the rule of law in this equation?
Thank you for summarizing the case law that will undoubtedly influence this decision. Looks to me like it should be pretty clear cut for U of T to win this. Though I'm not sure why it had to reach this point - they probably should've ejected them as soon as they refused to leave and not negotiated at all.
But now they've sort of cooked their own goose. (And these students have made it unlikely that future short protests will be allowed in the future.)
Additionally - it seems unlikely based on how other camps have gone, that this is mostly students in the camp - its likely a whole lot of hostile actors just looking to stir up trouble. Too bad the police aren't investigating individuals for hate speech with some of the things they're saying.
The analysis is excellent: it properly ignores an Alberta Court of Appeal decision, as it is diametrically opposed to the Ontario Court of Appeal decision as to whether the state action doctrine applies to universities (so that the Charter applies). Moreover, the Alberta decision is distinguishable as it applied to pecuniary barriers to speech on campus, rather than semi-permanent occupation of land on campus, to the exclusion of all others. I do not agree that trespass is per se irreparable harm as damage to grass or loss of pecuniary gain from loss of use of the land can be compensated in damages. It is not normally necessary to show a strong prima facie case to get an interlocutory injunction (as distinct from an arguable case) but if the only relief sought is in effect an injunction, a strong prima facie case must be made out. That point was missed owing, I suspect, to the need to focus on THIS injunction application. Balance of convenience is taken into account where an interlocutory injunction is sought and one of the factors taken into account includes maintaining the status quo. As the encampment has been in place for several months and was initially facilitated by the university, that factor favours the protesters. That the speech is offensive to many, and I suspect most, Canadians is irrelevant if the Charter is engaged.
With the above caveats, and having regard to the need to write for a lay audience, this is MUCH better legal analysis than one normally gets on-line, or in print media.
Due to hierarchy of the courts, the AB appeal decision is actually much less influential as there is plenty of related precedent existing in ON already to draw from.
As the protestors control access to the “site” perhaps the university could fence the area off outside the current encampment enclosure and deny entry or exit to the encampment.
I think denying exit is technically kidnapping.
Not sure that it’s technically kidnapping however any concerns can be overcome by refusing to allow entry and denying reentry to those who come out.
https://www.torontodefencelawyers.com/crime-let-someone-leave/
LOL.
There could be some merit in supporting the Palestine supporters if there were at least one hot or semi hot woman protester in the group. Good Lord, that has to be one of, if not the most motley group of protestors seen since the 1960's. Why is the left so derived of good looks?
JULY 2. An injunction was issued this afternoon. The protesters must leave by tomorrow. The question is whether they will, and what, if anything, the police (or government) will do to enforce the judicial order, because some police forces take the view that that is wholly in their discretion.
The reports of appalling behaviour (including incitement to hatred against Jewish people, "nudge, nudge, wink, wink" "coded expressions" of support for violence against Jews and the like are deeply unsettling. I hope that the UofT wins its case and that the occupiers are removed.
What is really needed is a philisophical rethink and amendement to the Charter of Rights & Freedoms.
It really should be the Charter of Rights & Responsibilities, Freedoms & Duties.
Rights and freedoms do not exist without duties and responsibilities - on those expected to allow for or even outright provide these 'rights', as well as on those who expect to enjoy said rights & freedoms.
This is where educators and parents have outright failed the last two generations of students from kindergarten through graduate school - young adults who scream about rights and freedoms seem completely oblivious to the fact that their expectations and presupposed entitlement to freedoms come with responsibilties on themselves and on others, and that their rights are contingent on the duties of others to provide for them and/or guarantee them with time, effort, and treasure.