Is an encampment protected expression?
On Thursday, Calgary Police forcibly dismantled the pro-Palestine encampment at the University of Calgary within hours of its formation. Those who advocate the same tactic at other Canadian universities, including University of Toronto, argue that an encampment is not a legitimate form of protest because it is disruptive and occupies space that should be open to all. A columnist in the Globe & Mail even argued that the encampment is not a form of expression and thus deserves no protection.
The Supreme Court of Canada has said that the Charter’s freedom of expression protects any activity that “conveys or attempts to convey a meaning” (Irwin Toy v. Quebec). The court used the example of illegal or unauthorized parking to illustrate the potential breadth of the right. In most cases, people park illegally because they cannot find an available or convenient space or because they are unwilling to pay parking charges. But, said the court, if an individual parks her/his car illegally as a protest against the way in which parking spaces are allocated or against some other policy or practice, then the act of illegal parking will fall within the scope of s. 2(b) because it is intended to convey a message.
In previous cases, the courts have either held or assumed that encampments, such as the Occupy camps (Batty v. City of Toronto), and make-shift structures/shelters carrying protest signs on public property outside foreign consulates (Zhang v. Vancouver), are forms of expression.
Demonstrations are often intended as a challenge to the dominant political discourse. They are, in many cases, a reaction to the failure of the prevailing political conversation to take any, or adequate, account of important public issues. They seek to challenge established institutions and the forms of discourse that are supported by those institutions. They make visible the extent and depth of opposition to a government or its policies. They confront the authorities or the larger community with demands for public recognition or action.
Demonstrations disrupt, to a greater or lesser degree, the ordinary operation of public spaces or the routines of community members. That is their purpose. Courts have emphasized that “a protest does not cease to be peaceful simply because protestors are loud and angry” (Bracken v Fort Erie) and also that the police should not interfere with lawful expression because it “might provoke or enrage others” (Fleming v. Ontario).
Fixed structures erected in public spaces exclude other people or activities from the space they occupy. There is no easy answer to the question of how such spaces should be shared between different people and uses, which is a reminder that the regulation of protest involves practical trade-offs between competing uses of public property. Because the Occupy encampments in Canada were located in public forums, such as St. James Park in Toronto, they were protected as expression under s. 2(b) of the Charter. The concern that eventually led to the shutting down of the Occupy encampments in Toronto and elsewhere was that they involved a significant interference with other “ordinary” uses of the properties for an indefinite period.
The encampment protestors have sought to maintain some control over who enters the area, which was fenced off by the University of Toronto prior to the encampment. Much has been made of this in the media. The protestors, though, appear to be screening entrants to protect themselves from counter-protestors who may want to interfere with the encampment. They may also be trying to exclude those who hold more extreme views, knowing that they will be blamed for any hateful speech that comes from within the encampment.
It is open question whether a university, when regulating protest in the open areas of the campus, is subject to the Charter of Rights. The Alberta Court of Appeal ruled in 2020 (UAlberta Pro-Life v. University of Alberta) that some forms of coercive university action, including the restriction of protest, may be subject to Charter review, but lower courts in other provinces have ruled otherwise.
But even if the universities are not subject to the Charter, the University of Toronto has clearly stated its commitment to freedom of expression. (Several years ago, the Ontario government required all universities in the province to establish free speech policies). In its Mission Statement the university expresses its commitment to “free speech” and affirms that this right is “meaningless unless [it] entail[s] the right to raise deeply disturbing questions and provocative challenges to the cherished beliefs of society at large and of the university itself”. The university’s Freedom of Speech policy confirms that the members of the university community have the right “to engage in peaceful assemblies and demonstrations, to organize groups for any lawful activities and to make reasonable use of University facilities”.
Reasonable people can disagree about what counts as ‘reasonable use’ of space or how much disruption is too much. The answer to these questions, however, should not depend on whether we like or feel comfortable with the protestors’ message.
