Student Protest Encampments and Section s.2(c) of the Charter
In spring 2024 student encampments at Canadian and US universities provoked strong reactions for and against pro-Palestinian demonstrations on campus property. While some Canadian universities called in police to disperse demonstrators, others looked to the courts for injunctions compelling students to disperse and abandon their encampments.
Though freedom of peaceful assembly has moved more to the forefront, discussion of student protest rights have centered on freedom of expression. In part this is because s.2(c) of the Charter, which guarantees freedom of peaceful assembly, has scarcely been noticed, much less interpreted by the Supreme Court of Canada. More than forty years after the Charter’s enactment in 1982, there are still no principles of interpretation or doctrines in place to inform and protect this entitlement. Although the 2024 encampments place freedom of peaceful assembly urgently at stake, the ongoing vacuum under s.2(c) is likely to divert the Charter issues to s.2(b)’s guarantee of expressive freedom.
Sections 2(b) and (c) protect closely related but independent elements of the Charter’s fundamental freedoms. While s.2(b) guarantees the expressive freedom of individuals, s.2(c) confers protection on freedom of assembly as a form of collective expression that is spatial and performative in nature. That, in short, is how s.2(c) addresses the gap that arises under s.2(b) when rights of collective expression are at issue.
This short discussion calls for an awakening of s.2(c) and offers doctrinal guidance on what that might look like. Without addressing the merits of the encampments, or of applications for injunctions to end the demonstrations, it outlines some of the principles that should guide analysis of the Charter and the rights of student demonstrators.
Ontario, the universities and the Charter
A vital question warranting preliminary comment is whether student protest activity on campus is protected by the Charter. Just as there is no definitive interpretation of s.2(c) there is no definitive answer to the question whether the Charter applies to universities. In Ontario, the issue is somewhat more certain because in 2018 the government imposed a mandatory free speech policy on all provincial colleges and universities. This policy represents a coercive governmental variation on the University of Chicago’s “Statement on Principles of Free Expression”.
Under the 2018 directive, Ontario’s colleges and universities were required to file a free speech policy with the government and then to submit an annual report to the Higher Educational Quality Control Council of Ontario (HEQCO). The HEQCO is an agency of the government that is mandated to review and assess each report, provide advice to the minister, and produce a public report on institutional compliance with government policy.
Every institution has its own free speech policy that serves as the local embodiment of the government’s directive. That directive, the government-approved speech policy, and HEQCO’s annual review of free speech at Ontario colleges and universities are forms of government action that engage the Charter. University-imposed limits on the spring 2024 encampments or other protest activities are grounded in the dictates of this policy and its implementation at Ontario campuses. For that reason – perhaps as well as others – the Charter should apply to the 2024 student protest encampments.
Section 2(b)’s gap and why s.2(c) matters
Freedom of expression and freedom of peaceful assembly are bound to overlap because s.2(b)’s definition of expression as “any attempt to convey meaning” covers most of an assembly’s expressive activities. (Irwin Toy Ltd. v. Quebec) The range is unlimited and can include signage, marching, singing, chanting, shouting, any number of symbolic gestures, and spatial strategies like occupying public property, setting up an encampment, and building temporary structures.
Subsuming the activities of an assembly into s.2(b) renders s.2(c) superfluous and essentially erases this Charter guarantee. Section s.2(b)’s guarantee of expressive freedom does not occupy the constitutional field when rights of an assembly are at stake. It protects the expressive activity of individuals who participate in an assembly but does not incorporate or exhaust the constitutional properties of s.2(c). While s.2(b) protects its constituent participants, s.2(c) attaches to the assembly qua assembly, constitutionalizing it as a collective entity that expresses and projects its own communicative purposes.
Section 2(c): a collective, spatial, and performative entitlement
As the collective enactment or embodiment of individual expressive activity, s.2(c) re-inforces s.2(b)’s values of self-government, truth seeking, and self-realization, and likewise protects unpopular, unconventional, and dissident points of view. While sharing these values in common with s.2(b), s.2(c) embeds values that are collective, spatial, and performative in nature. In one of its only comments on s.2(c), the Supreme Court of Canada stated that assembly is a form of collective action that is incapable of individual performance. (Mounted Police Association of Canada v. Ontario)
An assembly constitutes a presence in embodied space and is therefore spatial in nature. In that space, where at least two and up to thousands might gather, the assembly enacts a collective form of performativity. In this way, assemblies and gatherings galvanize the condition of vulnerability, enabling disadvantaged groups or communities to form an entity and leverage their voice in public space. This form of participatory democracy supports a discourse of protest and dissent that has a power and presence not contemplated by s.2(b)’s focus on the rights of individuals.
A conception of peaceful assembly under s.2(c)
Section 2(b)’s concept of expression is elastic but stretches uneasily to assemblies that occupy public space, build encampments, or erect structures as an exercise in collective expression. Section 2(c) fills that gap, incorporating an element of presence – however it is expressed or asserted – in its conception of what an assembly is.
As the text makes clear, freedom of peaceful assembly is the cornerstone of s.2(c). While this qualification is in harmony with s.2(b)’s doctrinal exclusion for violent forms of expression, what peaceful means has elicited divergent points of view. While some argue that disruptive or unlawful conduct is inherently unpeaceful, others disagree, stating that an assembly is peaceful up to the point of violence or a threat of violence.
This difference in conceptions of what is peaceful matters greatly. To exclude disruptive and unruly gatherings because they are “unpeaceful” defines the entitlement narrowly, and risks pre-empting gatherings that serve s.2(c)’s underlying values. Moreover, the concept of what is disruptive of a space and how it functions – as a public thoroughfare or community venue – is a dangerous standard to apply in determining a violation of s.2(c). A broad conception of what is peaceful avoids reflexive judgments that equate what is disruptive with what is unpeaceful, and rests on principled acceptance that disruptive collective expression is the foundation of a guarantee that empowers individuals to join in solidarity and amplify their message in a public space.
Freedom of peaceful assembly should receive a generous interpretation that does not exclude disruptive gatherings, and s.2(c)’s exclusion for violent assemblies should mirror s.2(b)’s narrow exclusion for violence and threats of violence. Any temptation to widen the scope of what is unpeaceful to include forms of psychological harm (i.e., arising from noise, visual disturbance, and inconvenience) must be resisted. Treating assemblies that threaten the serenity of a community as akin to violence is a way of re-introducing disruption into the discussion. Doing so obscures the distinction between violent and non-violent disruption.
In principle, s.2(c) extends to gatherings of two or more persons and includes assemblies that are disruptive and engage in unlawful acts but excludes those that threaten to or commit acts of violence. Sections 2(b) and (c) protect distinctive elements of s.2’s fundamental freedoms, and individual participants remain accountable for their own actions, including any unlawful conduct or transgressive expressive content that violates criminal or civil legal standards (i.e., hate speech, defamation). Except where an assembly endorses and promotes unlawful or transgressive conduct, the acts of individuals are not the acts of the assembly.
The government violates s.2(c) when it prohibits or regulates a gathering that falls within this definition of peaceful assembly. Limits on assemblies can be imposed, but only – and with an exception for violence or threats of violence – under s.1. It is especially important, where s.2’s freedoms are at risk, for the government to satisfy its onus under s.1 and demonstrate that limits on these rights are demonstrably justifiable. Section 1 allows reasonable limits on rights and freedoms but requires government to establish that any violations of the Charter are demonstrably justified in a free and democratic society.
Limits on peaceful assembly
No conception of peaceful assembly can have credibility without recognizing and mapping out reasonable limits. The raw, voluble, and potentially transgressive power of gatherings – especially protest demonstrations – can threaten the social and political serenity of a community and generate fears of disruption, disorder, and even chaos. While those fears must be answered, two principles guide the analysis of limits under s.1. First, freedom of assembly is protected both because and in spite of its essential purpose, which is to confer the Charter’s protection on gatherings engaged in collective communication expression that may disrupt the use or enjoyment of public space. Second, limits must be evidence-based to ensure that restrictions are grounded in the facts and not based on adverse reaction to demonstrations that are perceived as irritating and unacceptable intrusions into public space.
More specifically, three factors are pivotal in considering the student demonstrations and their encampments on university property: the degree to which a campus encampment has disrupted the ambient community; the length or duration of an encampment; and whether an encampment can be dispersed and dismantled before less intrusive measures have been attempted and failed. Another factor, which concerns student access to university spaces for gatherings and expressive activities, is beyond this discussion and its focus on s.2(c).
As emphasized, disruption is part of s.2(c)’s mandate and the scope of entitlement. Pinpointing the moment when disruption crosses the line and limits can be imposed calls for close attention to the context. Variables that inform this issue include an assembly’s spatial, visual, and aural properties, its size, location and timing, and the nature and scope of its interference with public space and function. Who is disrupted, in what ways, and for how long must be considered. When supported by evidence, limits could also be based on health or safety concerns. Although gatherings and demonstrations are usually temporary, restrictions are not justifiable simply because an assembly is indefinite in duration.
Limits on assemblies and gatherings must also satisfy s.1’s requirements of minimal impairment and proportionality. Dismantling or dispersing an assembly or encampment is a measure of last resort that should only be available after less restrictive means have been tried. Those can include limiting the size, location, or timing of a gathering, prohibiting or limiting overnight camping or other aspects of an encampment, and requiring compliance with standards of health and safety. Dismantling an assembly just to get rid of student demonstrators is not justifiable.
In recent weeks, three Canadian universities – the University of Calgary, University of Alberta, and York University – called in police forces to assist in dispersing student demonstrators. Otherwise, McGill University and the University of Toronto applied for an injunction against student encampments, and while McGill’s two applications failed, Toronto’s application will be heard on June 19 and 20, 2024.
It is especially egregious that York University called police in to disperse an encampment presence of about forty protestors, doing so within twenty-four hours of its arrival. York reportedly served a trespass notice, but only a few minutes before police arrived to clear the demonstration off Harry Arthurs Commons. The administration’s zero tolerance policy is a form of prior restraint that pre-empted demonstrators without evidence of disruption or unlawful conduct, and without seeking a court order. This incident, among others, underscores why it is imperative to protect the rights of students, not through the putative free speech policy of the Ontario government, but through application of the Charter and s.2’s guarantees of expressive freedom and peaceful assembly.
The Charter and the student encampments
Much in the narrative of the 2024 student encampments is troubling, and that includes the confused state of doctrine on the Charter’s application to universities and the absence of any jurisprudential or doctrinal conception of peaceful assembly under s.2(c). At least in Ontario, it is difficult to argue that universities who are subject to a governmental free-speech policy and annual compliance review are not bound by the Charter when they place limits on freedom of expression and peaceful assembly. The Charter should apply and the student encampments in Ontario should be protected by s.2(c), subject only to limits that are justifiable under s.1 and meet the requirements of minimal impairment and proportionality.
