Forget Free Speech, Freedom of Assembly is the Real Issue on Student Encampments

May 15, 2024 , Brooke Jeffrey , Comments Off on Forget Free Speech, Freedom of Assembly is the Real Issue on Student Encampments

If there is one thing the current debate over student encampments on universities is NOT about, it is free speech. Yet many commentaries on these protests have referred to this fundamental freedom and, more importantly, have implied that it is under siege by universities and governments. This argument, in turn, is apparently based on the fact that opponents want to shut these tent cities down. It is certainly true that there is a fundamental democratic freedom at stake here, but it is freedom of assembly – in effect, the right to protest – that is in question, not free speech. Distinguishing between these two basic rights is crucial to any informed analysis of the competing claims put forward by the participants in this controversy.

There is no question that students and/or faculty have the right to express their views on an issue, however unpopular or provocative they may be. Free speech is constitutionally protected under section 2(b) of the Canadian Charter of Rights and Freedoms within the broader framework of “freedom of expression”, as outlined in the text and elaborated in numerous judicial decisions.[i] Moreover both the universal concept of academic freedom, and the various codes of conduct adopted by the universities involved, respect and reinforce this fundamental democratic principle.[ii]

Neither university administrators nor government spokespersons have been criticizing the right of the demonstrators to put forward their basic message, even if it is one with which many of them do not agree. Prime minister Justin Trudeau has repeatedly stressed that he fully supports the protesters’ right to free speech.[iii] So have numerous statements issued by the administration of the various affected universities.

At the same time, it is important to note that this right is not unlimited. In Canada, as in other liberal democracies, there are some constitutionally recognized limitations on free speech. For example, south of the border such limitations on the First Amendment guarantee of free speech have recently been extensively examined in response to similar campus occupations taking place there.[iv] In Canada these limitations are outlined in section 1 of the Charter, and elaborated in judicial decisions as well as several pieces of government legislation.[v] Significantly, under section 1 it is considered “reasonable in a free and democratic society” that governments can introduce legislation to prohibit violent or hateful language or incitement to violence or hatred, a measure typically introduced to protect minorities. Not surprisingly, then, both the prime minister and provincial premiers, along with university administrators, have cautioned that violent or hateful language will not be tolerated at these encampments.[vi]

But to date this too has not emerged as the major concern. Although there have been accusations by some observers regarding the possible use of racist or hateful language on the part of some individual participants, these appear to have been isolated incidents. Other complaints have been based on subjective interpretations of various controversial phrases, including the now well-known “from the river to the sea” slogan.[vii] Spokespersons for protesters themselves have stressed that they are not condoning any incitement to hatred or violence. They also stress what they see as an important distinction between anti-Zionism and antisemitism. In some cases they have actually published their own ‘codes of conduct’ for their participants, stressing that they must respect these legitimate limitations.[viii]

So freedom of speech is not the major driver of this controversy. Instead, the democratic principle at the heart of this dispute is freedom of assembly or, in simple terms, the right to protest. Put another way, critics of the encampments on university campuses are not concerned with what the demonstrators are saying, but where they are saying it. [ix]

The protesters believe their right to occupy space on university campuses 24/7 is protected by section 2(c) of the Charter, namely the “freedom of peaceful assembly.” But many critics and legal scholars disagree. Others argue that this protection, like free speech, also has limits, although here, too, there is disagreement as to what those limitations may be. Certainly the legal interpretation of this principle lacks the consensus that exists with respect to free speech.

Why the uncertainty? As it happens, section 2(c) is a rarely utilized and little referenced section of the Charter, which makes it far more open to interpretation and therefore much more problematic. The Department of Justice document on Charter rights notes that there is very little jurisprudence on this section and “what little there is would appear to indicate that freedom of peaceful assembly is geared towards protecting the physical gathering together of people…The object or purpose of the gathering, however, is not protected under section 2(c).” As Professor Jamie Cameron of Osgoode Hall Law School concluded in a study for the Public Order Emergency Commission, “Forty years after the Charter’s enactment in 1982, s.2(c) has not received an authoritative interpretation. There is no definition of peaceful assembly in Supreme Court of Canada jurisprudence, and no doctrinal framework to determine the permissibility of limits on this guarantee.” [x]

One limitation that is widely accepted is a prohibition on violent protest. In the United States, after protesters destroyed university property and forcibly occupied a building on the Columbia University campus, the intervention of police and security services was justified by officials on the basis that this violent behaviour caused protesters to lose their First Amendment protection of freedom of assembly. A similar justification was used at the University of Alberta recently with respect to section 2 ( c ) of the Charter after violent clashes erupted between encampment protesters and counter protest groups.[xi]

But in Canada even the definition of “violence” has been somewhat problematic. Critics of a specific protest often refer to the apprehension of violence, or the anticipated escalation of dissenting behaviour to acts of violence, particularly if affected minorities feel threatened. As University of Ottawa Faculty of Law Professor Carissima Mathen noted in a recent article, “An assembly may become unpeaceful even if it has not yet descended into widespread violence. It will do this if it poses an objective threat of violence…Freedom of peaceful assembly should not protect protests that cause others to fear violence.”[xii]

This argument has been raised repeatedly in the case of the McGill encampment, and notably in the inunction requests filed by two Jewish students and then by the university itself. Both Jewish and non-Jewish students have expressed concern for their personal safety when attempting to navigate the university campus and attend classes in various buildings in close proximity to the protest site.

Meanwhile supporters of the encampments – or more accurately supporters of the protesters’ right to establish such encampments — argue that their location on university campuses puts these protests into a special category, where both academic freedom and the purpose of universities as centres of learning and debate must be considered. The Canadian Association of University Teachers (CAUT), for example, has rejected the concept of apprehended violence and potential danger to members of the university community, declaring that “The forcible removal and heavy-handed arrests of peaceful student protesters who pose no demonstrable threat to campus safety are inimical to the mission of post-secondary institutions.”[xiii]

Yet administrators at most of the affected universities disagree. Explaining the University of Alberta’s decision to call in the police, president Bill Flanagan wrote that despite the public’s perception of relatively peaceful behaviour, “There can be no question that the encampment posed a serious and imminent risk of potential violence and injury.”[xiv] Flanagan also noted in the university’s defence that its own security personnel were not equipped to handle the situation, nor were they able to guarantee the safety of those involved. He added that the vast majority of protesters left the encampment voluntarily when police arrived, and only 5 individuals were arrested, three of whom were not students, and one of whom was accused of assaulting a police officer. Nevertheless the decision to request police intervention in this case, after only a few days of encampment, resulted in the resignation of another senior university administrator, the Associate Dean of Equity, Diversity and Inclusion, who criticized the handling of the camp dismantling as unnecessarily violent and premature, amid growing faculty disapproval.[xv]

Adding to the complexity of the issue is the fact that in many cases university administrators claim that many of the protesters are not students but members of the general public and even “outside agitators.” In the case of the University of Alberta, for example, president Flanagan stated that only 25% of those present at the time of the police action were students of the university. Protesters often counter that the reference to outside agitators is a typical ploy of authorities. However while this may well be the case historically, a recent academic study specifically examining the encampment phenomenon has provided some justification for the authorities’ claims. [xvi]

Another complicating factor in the case of encampments generally is the need to distinguish between the behaviour of protest group members and that of unrelated individuals. This additional nuance has become particularly significant in the face of growing antisemitism in Canada, and especially on university campuses, since 7 October 2023 — in other words, long before the advent of the pro-Palestinian encampment protests. Recent testimony by Jewish university students before the House of Commons Justice Committee highlights this distinction and also reveals a distressing level of violence and threats of violence taking place routinely on many campuses.[xvii]

Apart from violence, other accepted limitations on peaceful assembly generally revolve around the concept of colliding rights, (the “your rights end where mine begin” argument), and in particular of perceived dangers to public health and safety. As the Department of Justice analysis of Section 2 (c ) outlines, both the “peaceful” component of the section itself, and the application of Section 1, have been used to resolve a number of legal challenges to various public protests. Most notably, the analysis states that “some jurisprudence has found that legal measures affecting freedom of assembly through the reasonable regulation of public space and associated public health and safety matters do not infringe section 2(c) … Similarly, section 2(c) was found not to be infringed by measures restricting residence in public spaces by the homeless” [xviii].

Similarly the Canadian Civil Liberties Association advises protesters that freedom of assembly is subject to limitations under section 1. They also note “There are a number of laws that limit this right in very real ways. Protesters have been arrested for breaching the peace and unlawful assembly. Provincial legislation may restrict blockades on public roadways and assemblies on certain pieces of public property. Municipal bylaws that deal with noise, nuisance and land use often limit how, when, and where, protests can take place.”[xix]

Given the quasi-public nature of the space occupied by the encampment on the McGill campus, these points are particularly relevant. The McGill occupation is taking place in an open parklike space normally used not only by students but by many other Montrealers for recreational purposes. Although McGill owns the property and has claimed it could charge protesters with trespassing, this argument also has been challenged. Critics such as Laval law professor Louis-Philippe Lampron have prioritized the public nature of the space despite it being private property, and also questioned whether any significant obstruction of public activity is taking place.[xx]

This situation is therefore quite unlike the obstruction of traffic and commerce in Ottawa, and the blockades of highways in Ontario and Alberta during the so-called Truckers’ Convoy protests, (which have frequently been raised by commentators as a comparable situation), all of which figured prominently in the Rouleau Commission’s conclusion that their claim to the right of peaceful assembly was not valid.

Apart from the debate over the public aspect of the space occupied, other experts have raised the issue of timing. Prominent Montreal human rights lawyer Julius Grey, for example, has indicated the encampment may not in itself be illegal, but that the protesters do not have the right to occupy the space indefinitely. “I don’t think anybody has the right to camp forever. At some point McGill could say ‘That’s enough’.” [xxi] Then there is the fact that this protest is in fact a 24-hour occupation rather than a typical daylong assembly or march. Not surprisingly, then, Mc Gill administrators are now arguing that, in addition to the perceived growing threat of violence, the limitations to peaceful assembly based on health and safety concerns have become more compelling as the McGill encampment enters its third week, and as such they have requested an injunction that focuses heavily on this argument as well.

So what conclusions can be drawn from this controversy, if any? First, the decision of the Quebec courts to reject both of McGill’s injunction requests has set a precedent. In particular, the prioritization of freedom of assembly over property rights has been reinforced. In addition Montreal police have refused to intervene without a court order, despite repeated requests from the university over specific incidents involving harassment of administrators at their homes and on campus. A similar situation has evolved at the University of Toronto, where even a hearing on the administration’s request for an injunction has been delayed until June 20, forcing last-minute changes to plans for spring convocation as also happened at McGil.[xxii]

As a result the gap between judicial rulings and public opinion has grown wider, with a substantial majority of Canadians now believing the encampments should be shut down immediately. This gap has also extended to the political arena, as both Quebec premier Legault and Ontario premier Doug Ford have now called emphatically for an end to the occupations. Whether this will have lasting consequences for the credibility of the judicial system, or is a temporary phenomenon, remains to be seen.

Second, it is instructive to note that almost all universities, including McGill, already had in place at least three types of protocol that directly address protests on campus and provide both guidelines and limitations. In McGill’s case these include:

The Student Code of Conduct that states that “No student shall knowingly enter or remain in any University premises (a) Without right or authorization; or (b) With intent to obstruct University activities; or (c) With intent to damage, destroy or steal University property.”
The Operating Procedures Regarding Demonstrations, Protest and Occupations, that states Security Services personnel are authorized to instruct protestors or occupiers to leave a particular location or disperse. (These operating procedures were developed following extensive consultation with the McGill community in 2012-13.)
And, finally, the Approvals Process for all outdoor events, including those requiring temporary structures such as tents, that must be completed to comply with public regulations and university policies that protect health and safety. [xxiii]

At a minimum this would suggest that students of a university who are participating in this protest could be subject to disciplinary action, up to and including expulsion, regardless of the outcome of the encampment injunction decisions or other legal action. This would explain the decision by many of the participants to wear masks or concealing headwear, as well as the “demand” on the part of organizers that their university not only comply with their other substantive demands but agree to grant amnesty to any student participants. [xxiv]

Finally, it is important to note that one of the most significant and largely unexamined aspects of the debate over these encampments is whether they are likely to be effective. Begin with the stated “demands” of the protesters. In general, these are that the universities involved first make public and then divest themselves of any investments connected with the state of Israel. Some, like the McGill protesters, have also demanded that the university sever any and all connections with Israeli academic institutions. These demands are not only unlikely to be met but, in the first instance, would involve far more complexity than might initially be anticipated. In some cases no funds at all would be impacted using the protesters’ criteria, and many universities have pointed out that if they were, the amounts involved would, in any event, be insignificant, while others noted they have already consigned their trusts to ethical management programs.[xxv] In addition, the very use of the term “demand” has alienated many members of the general public as well as university administrators, who argue that negotiations must be based on the possibility of compromise.

A second measure of efficacy could be whether or not the encampments can be seen to inform or change government or public opinion. Here, too, the answer would appear to be quite disappointing from the protesters’ point of view. A recent Leger poll found nearly half of Canadians do not support the encampments and believe they should be removed.[xxvi] Even more significant, perhaps, are the findings of a recent Angus Reid poll that revealed a majority of Canadians do not feel such protests change government (or university) positions. An even larger majority believe public awareness may be raised by protests, but feel on this issue it was already high and, more importantly, that public opinion on this subject is already baked in and deeply divided. [xxvii]

As the poll also demonstrates, not only the subject matter of a protest but the tactics used are extremely important. Canadians overwhelmingly rejected both the content and the methods of the Trucker’s Convoy protest, and in these “encampment” cases a majority see the occupation of private property as unacceptable. Other polls have found that Canadians generally are discouraged by the growing rigidity of politics at all levels of government and would prefer a return to civility and compromise. The students’ ongoing intransigence and stated “all or nothing” approach to their “demands” are therefore perceived as antithetical to acceptable political behaviour, and it is likely that support for their cause will decrease even further over time. By contrast, if the various encampments become the subject of increased violence and/or police repression, public opinion is still unlikely to change on the issue but may well lead Canadians to consider these developments to be one further example of the deteriorating quality of democracy in Canada.

[i] https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art2b.html

[ii] See for example https://www.caut.ca/about-us/caut-policy/lists/caut-policy-statements/policy-statement-on-academic-freedom

[iii] https://www.theglobeandmail.com/canada/article-universities-are-places-of-free-speech-but-everyone-must-feel-safe-pm/ and

[iv] See for example this article by a former judge and university law professor: https://www.linkedin.com/pulse/free-speech-unlimited-direct-relationship-between-lloyd-8rtzc/

[v] Op cit

[vi] https://www.theglobeandmail.com/politics/article-ontario-premier-doug-ford-says-universities-should-remove-pro/

[vii] https://www.cbc.ca/news/world/from-the-river-to-the-sea-palestine-1.7033881

[viii]

[ix] See for example an excellent and clearly presented argument by Globe and Mail columnist Tony Keller @ https://www.theglobeandmail.com/business/commentary/article-the-campus-occupations-arent-protected-by-free-speech-because-they/

[x] https://publicorderemergencycommission.ca/files/documents/Policy-Papers/Freedom-of-Peaceful-Assembly-and-Section-2c-of-the-Charter-Cameron.pdf

[xi] https://edmonton.citynews.ca/2024/05/11/police-dismantle-pro-palestinian-encampment-university-alberta/

[xii] https://policyoptions.irpp.org/magazines/may-2023/law-peaceful-assembly/