Universities, peaceful encampment and the law of trespass: University of Toronto (Governing Council) v. Doe et al.
Some 50 days after protestors set up a camp known as Occupy U of T, Ontario Superior Court granted the University of Toronto an injunction that ordered occupants to dismantle the site and discontinue their demonstration. Dated July 3, 2024, the order prohibits the protestors or others from blocking access to campus, placing materials on university property, and demonstrating or staying overnight between the hours of 11 PM and 7 AM. In granting the injunction, Koehnen J. described the restrictions as minimal because student protestors could still conduct activities elsewhere on campus. Encampment occupants packed up their gear and exited Front Campus in compliance with the order, sparing police the task of enforcing the court order.
In assessing the university’s application to dismantle the encampment, University of Toronto v. Doe points in two directions. On questions related to the encampment’s involvement in transgressive expression or conduct, Koehnen J. found there was no evidence of occupants engaging in acts of hate speech, violence, or antisemitism. Any transgressions that occurred were committed by third parties and the encampment itself was peaceful in nature. This part of the reasons granted significant protection to the encampment and its occupants, albeit without mention or discussion of their rights.
On core questions related to the injunction the tone shifted. There, Koehnen J. found that demonstrators had no legal right to occupy university property and emphasized that the encampment’s conduct was inconsistent with freedom of expression. The university’s continued inability to control the site caused irreparable harm and there was “no inconvenience” – on the balance of convenience – in denying protestors a right to appropriate university property for their own expressive purposes.
This blog puzzles out the two parts of this decision. Short of enforcing its property rights and treating encampment occupants as trespassers, the university lacked legal means to regain control of the site or end the encampment. That said, enforcing its legal rights as property owner placed few limits on the university’s authority to prohibit protest and other communicative activity involving the use of physical space on campus. Absent the university’s consent, that would constitute trespass. Privileging property rights in that way treats the university as an unconditional arbiter of who can exercise what rights on campus property.
Koehnen J. held that the Charter of Rights and Freedoms could not be considered because notices of constitutional question were not filed, as required. In Appendix A he addressed the Charter anyway, finding that it would not have applied to U of T and that an injunction to dismantle the encampment was justifiable. Even in obiter, these conclusions are significant and troubling. As the blog explains, there is no freedom of assembly without access to physical space because an assembly – defined as a gathering or two or more individuals – is a collective and physical entity that is necessarily spatial in nature. A finding that the occupation of space is not a legitimate form of collective expressive freedom – or of peaceful assembly – is wrong in principle and negates the Charter’s fundamental freedoms.
Finally, while University of Toronto v. Doe states that the encampment was located on Front Campus, the site is referred to more commonly as King’s College Circle. To avoid misunderstanding about the location and scale of the encampment, it should be made clear that both are references to one and the same space, which is the grassy field in the middle of the King’s College Circle ring road in front of University College.
Evidence-based decision making
In addressing the university’s claim that occupants were engaged in violence, hate speech and antisemitism, Koehnen J.’s reasons are a model of evidence-based decision-making. It is an odd compliment to pay a judge, but much of the adjudication on expressive freedom is not rigorous or evidence-based. Three elements of his reasons in University of Toronto v. Doe stand out as noteworthy and exemplary.
First, Koehnen J. refused to make adverse findings of fact against encampment activities on the basis of hearsay, double hearsay, and triple hearsay. He found instead that the university produced no evidence to support its claims that the encampment caused irreparable harm by engaging in hate speech, violence, and antisemitism. Second, Koehnen J. took an evidence-based approach to the challenge of ascribing meaning to highly charged and contested language, signs, and symbols. To his credit, he adopted a nuanced and content-protective approach that refused to designate commentary critical of Israel and its Jewish population as presumptively or per se antisemitic. On this issue, Koehnen J. found no evidence that encampment occupants participated in acts of antisemitism.
Third, and without turning his mind to the concept of a collective entity, the judge separated the actions of individuals from those of the encampment. In particular, Koehnen J. held that while some individuals had engaged in transgressive expressive activity, there was no evidence that members of the encampment had done so. Put another way, he effectively treated the encampment as a collective entity that is separate from third-party outsiders who gathered at its periphery. As he cautioned, it is important “not to engage in guilt by association and conflate violent actors with peaceful protestors”. (para.53) Without framing it in rights terminology, Koehnen J.’s concept of the encampment was sound in principle because it held individuals accountable in law for their own transgressive actions. Under this view, their acts cannot be attributed to a collective entity, or gathering, unless those actions on all the evidence are also those of the collective.
Having found no evidence linking Occupy U of T to transgressive expressive activities, the judge twice stated that the encampment was peaceful in nature. Had the Charter applied, that conclusion would have engaged s.2(c) and its guarantee of the right to engage in peaceful assembly. Yet at this point, the judge’s reasons took a turn. On other elements of irreparable harm the tone shifted against encampment occupants and in the university’s favour.
The law of trespass and the injunction
Koehnen J. found that the university established a strong prima facie case on each of the three branches of the 3-part test for an injunction, namely a serious prospect of success, irreparable harm, and the balance of convenience for or against an injunction. On those issues the facts of the encampment were pivotal. Between May 4 and July 3, the Occupy U of T movement – comprising students, faculty, and alumni – was camped at King’s College Circle, where it established a system of controlled entry and community guidelines designed to manage the space, protect the integrity of the demonstration, and minimize the risk of confrontation or escalation with third parties and counter protestors.
Koehnen J. stressed that University of Toronto suffered strong irreparable harm arising from its continued inability to use its own property (paras. 150, 151, 160). He found that occupation is not a form of expression, stating that protestors have “no right to set up camp on or otherwise occupy property” (para.181; emphasis added). In addition, Occupy U of T was inconsistent with freedom of expression because encampment occupants violated the rights of others (para. 194). After stating that “depriving fellow residents of green space accomplishes nothing”, Koehnen J. concluded that the law does not consider it inconvenient – in the balance of convenience – to deny trespassers the right to use the property of others for their own purposes (para. 198, emphasis added, para. 199).
In this way, there was little to protect protestors from the force of U of T’s legal rights as the owner of campus property. Trespass law was not subject to the Charter because no notice of constitutional question was filed, and that left Charter values as the next-best source of protection for the rights of demonstrators (para. 113). Despite mentioning Charter values, Koehnen J. simply found, without further analysis or discussion, that university policies were “directionally similar” to the Charter’s requirements (paras. 166,168). Excerpts confirmed that there was little to fault in U of T’s free speech policies; in the circumstances, it sufficed that the rules were consistent with the university’s “own internal values” and with values “directionally consistent with the Charter” (para. 189).
Koehnen J. also maintained that student protestors have recourse against the university for any violation of their rights. Going to court was one option he suggested – except that under his own reasons in Appendix A, the Charter would not apply. Alternatively, he proposed that student protestors try to change the system by challenging an adverse decision on rights or taking steps to replace decision-makers, such as the university president (para. 191).
Inconvenience and rights of protest on campus
It is difficult to square dual findings that the encampment was peaceful and that occupants had no right to use campus property for their protest. The court found the encampment silenced the voices of others, and that U of T suffered irreparable harm from its continued inability to use the space and ensure that it was accessible to other members of the community.
Under University of Toronto v. Doe any gathering on campus property that is not accommodated by the university is an act of trespass. In this it is unclear whether the same conclusion would apply to a gathering of prescribed temporal limits. If so, that view of trespass law leaves issues about expression on campus to the unfettered discretion and goodwill of the university.
While the use of space is one issue, the duration of a gathering or demonstration in public space is another. By claiming the right to maintain the encampment indefinitely, the protestors may have provoked the university to react by advancing a more unconditional assertion of its property rights. And yet, though it troubled the court, screening of third-party access to the encampment is less concerning than the lack of an endpoint to the demonstration. On the point about access, an assembly cannot effectively communicate its collective message without uninterrupted access to physical space for the duration of its gathering. Requiring a gathering or demonstration to grant access to all who simply present themselves at the space, including opponents, negates the freedom of a collective entity to choose or control its own participants.
Where an assembly or protest occupies public space or property, duration is a critical factor. Demonstrators who take up physical space on property that is functionally or legally public can become increasingly “inconvenient” with the passage of time. In the absence of an endpoint, it might be reasonable to place temporal, spatial, or other limits on a campus demonstration. That said, limits are subject to a robust conception of peaceful assembly that would protect a form of occupation in a public space, for a period of time that grants demonstrators an adequate and sufficient opportunity to communicate their message in a manner of their choosing, provided it is peaceful.
A quick comparison of two student protests illustrates the point. In the case of Occupy U of T, it would be difficult to argue that an encampment of more than 50 days, which claimed exclusive use of a prime site on campus, did not give protestors an ample opportunity to communicate their message. By contrast, demonstrators had little or no opportunity to establish a presence or communicate a message at York University, where they were immediately deemed to be trespassers. At the request of the university, police precipitously cleared the site within 24 hours of its arrival.
In University of Toronto v. Doe property rights dominated the discussion because the Charter did not apply. Obiter reasons presented in Appendix A concluded that the Charter would not have applied and would not have affected the outcome. As explained, Charter values played no more than a flaccid role and university speech policies, by default, were dispositive. Sidelining the Charter removed an impediment to the university’s property rights under the law of trespass and set a precedent for the unchallenged application of trespass law to other student encampments in Ontario.
Whether and when the Charter might apply to universities remains confused and uncertain in the jurisprudence. Arguments for its application can be grounded in caselaw and principles of Charter interpretation but are fortified, in Ontario, by the provincial government’s 2018 directive that imposed mandatory free speech rules on provincial colleges and universities. Koehnen J.’s obiter reasons dismissed this element of oversight, finding that the government’s mandatory speech directive made no difference because the university’s speech policies remained the same after 2018. He also relied on U of T’s assertion that it is autonomous from government.
With respect, this misses the point that the government’s 2018 directive assumed regulatory authority over university speech policies. All colleges and universities must submit an annual report on campus expression that is subject to annual review and further report to the government. At the time it imposed the directive, the government threatened financial repercussions against any college or university that did not comply. In fall 2023, following the October 7 Hamas attack, the Minister of Colleges and Universities demanded that universities impose sanctions against members of their communities who expressed a pro-Palestinian perspective, rising in the legislature to denounce student and faculty transgressors by name. Though the university acted autonomously to invoke trespass law against encampment occupants, it was subject to provincial oversight in doing so. In combination with other factors this was more than sufficient to engage the Charter and apply it to the University of Toronto’s application for an injunction.
The student encampments of spring 2024 demonstrate that the Charter is an imperative source of protection for students engaged in protest activities on university property or space. An assembly, which can be defined as a gathering of two or more individuals – is a collective entity that communicates a message in solidarity through a variety of means, which include the performative, by making use of physical space or property. This form of collective expression can engage in a range of actions, including a silent vigil, sit-in, love-in, and an overnight encampment, among countless others. Gatherings that take the form of protest or demonstration are a powerful mechanism that enables individuals to join in solidarity, speak in a collective voice, and propel their message into the foreground of public discourse and debate. This time-honoured exercise in participatory democracy is based in and requires physical space; this entitlement is protected as such by s.2(c) of the Charter and numerous international instruments.
University of Toronto v. Doe allowed U of T to bypass rights protections, invoke unchallenged rights as property owners, and displace protest activities that are “inconvenient” to others. It demonstrates that university free speech policies are inadequate to protect the rights of student protestors and explains why the Charter must apply in this setting to address this deficit in freedom of individual and collective expression.
I thank Jim Turk for our discussions about the encampment and valuable comments on the blog.
