What if Charter Values Mattered?

Universities have property rights. Are they entitled, as a consequence, to exclude others at will? Are property rights, especially those exercised by public institutions like universities, different from homeowners or shop owners? According to Justice Koehnen in the University of Toronto encampment case, the Canadian Charter of Rights and Freedoms does not apply to property owned by universities in Ontario.[1] Justice Koehnen was asked to grant an application by the University of Toronto for an injunction to remove student occupiers opposing Israel’s occupation, displacement, and killing of civilians of Gaza, in response to the alarming events of October 7, 2023. The University could choose, Koehnen concluded, to exclude student occupiers from its green space in King’s College Circle – a large patch of grass, mostly unused – in the centre of its Saint George campus. 

That the University had private property rights should not put an end to the discussion of freedom of expression on campus, however. This is because the Constitution, in its primacy clause in section 52, declares that it is ‘the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.’ As advised by the Supreme Court of Canada in Dolphin Delivery, this means that the common law must be interpreted in a manner consistent with the supreme law – it must develop in a manner consistent with what the Court called ‘Charter values.’ Private property rights, then, can be qualified by the overriding imperative of respecting values enshrined in the Charter.

What if Justice Koehnen had taken seriously the directive in Dolphin Delivery to test common law rules against the Charter’s guarantee of freedom of expression? Very little is said in his ruling about the Charter’s values. The Justice began his reasons by saying that he would consider University policy in the light of the Charter’s values (para. 113). For this reason alone, he got off on the wrong foot. He should have been considering whether the common law rules for granting an interlocutory injunction to protect property rights were consistent with Charter values. Though it may have been reassuring to staff, faculty, and students to learn that University rules are ‘directionally consistent’ with Charter values (para. 193), Justice Koehnen missed his mark. 

Justice Koehnen mostly treated the dispute between the University and student occupiers as a traditional trespass case. Applying the usual criteria for determining whether an injunction should be issued, Koehnen found, first, with an abundance of judicial precedent in support, that there was a strong prima facie case to issue the removal order. Second, he found that ‘irreparable harm’ was being suffered by the University. The harm concerned the exclusion of others, principally those opposed to the encampment, from the green space. Justice Koehnen turned, finally, to what is called the ‘balance of convenience.’ This is where some lip service was paid to Charter values.

The balance of convenience weighed in favour of granting an injunction because, as in traditional private property cases, occupiers had no right to set up an encampment without permission of the owner. If the space was meant to be open to use by others, they too should be entitled to access the green space for all variety of purposes – to sit on the grass or even to eat breakfast (paras. 185, 192). This space, the Justice acknowledged, is a ‘quasi-public’ space that should be open to all (para. 188). Here is another moment at which Justice Koehnen misstepped. He failed to take seriously the Charter’s values that were at stake. Rather than undertaking an evaluation of the type of expressive activity that the students were engaged in – high value political speech that lies at or near the core of the Charter’s freedom of expression guarantee – he rendered that activity equivalent, if not subordinate, to far more mundane concerns such as sitting on the grass or eating breakfast. 

He could have mentioned walking one’s dog, though there is not much of that going on at this green space. This is among the uses that Justice Brown in the Batty case, concerning Occupy Toronto’s encampment at St. James’ Park in downtown Toronto decided in 2011, prioritized when he authorized the City to shut down the month-long protest. In that instance, the Charter applied directly to the City of Toronto. Highly deferential to the use of public power over peaceful protest, Justice Brown declared that the Charter did not authorize occupiers to ‘appropriate’ a city park ‘without asking their fellow citizens’ (para. 12). Invoking language from the 1867 Constitution Act, Justice Brown declared that ‘peace and order would go out the window’ if protestors could dislocate Toronto’s parkgoers (para. 110). Brown simply would not tolerate the disorder associated with the Occupy Toronto encampment.   

Justice Koehnen, similarly, does not like disorder. He described the circumstances at the University of Toronto as potentially giving rise to a Hobbesian state of nature – to ‘chaos’ and a ‘brutal free for all’ (paras. 15, 198) – should other members of the University community wish to occupy open spaces at the University overnight. There was ‘no shortage of valid causes’ for which an occupation of green space could be justified. This was a genuine ‘slippery slope,’ the Justice warned (para. 198). There was no descending down a slippery slope in this instance, however. There were only two protagonists in the dispute at King’s College Circle: those who opposed the occupation of Gaza by the State of Israel and those who supported Israel. There was no evidence of innumerable potential causes before the Court. Instead, there were only two sides that appeared to be committed to occupying the same green space.

It turns out, in Justice Koenen’s analysis, that the Charter value of freedom of expression has little to no role to play in an application to eject occupiers in cases where property owners decline to consent to that occupation. ‘Freedom of expression is not a defence to trespass,’ concluded Justice Koehnen (para. 220). One would have liked to have seen the Justice take more seriously the Charter values at stake. For instance, in the Supreme Court decision in Grant v. Torstar, the Supreme Court of Canada modified the common law of defamation, which grants high priority to the protection of reputation, to allow for a new defence of responsible communication in the public interest. This would allow journalists, and others, to report on matters of public concern that could amount to defamation should they take steps to ensure the accuracy of the information they choose to publish. 

Similarly, one could foresee a Court more interested in applying the Charter value of freedom of expression to the circumstances of University’s green space, insisting that the property owner make efforts to manage that space so that both sides could occupy a part of King’s College Circle. If exclusion of other protestors was a principal concern, was there any attempt on the part of the University either to have students make room for others, or to find others equivalent space, of which there was no shortage on the St. George campus? Could this have been achieved while keeping the two sides apart? Could contending protests have continued undisturbed for some further period of time as war continued to rage? No such questions were asked by the Court. If the student occupiers refused to make room for others, or if there was no equivalent university space for them, then this would have served as evidence favouring the University’s application. None of this appeared to be of concern to the Court.  There was, instead, the absence of any serious engagement with the question of whether common law rules complied with the Charter. Instead, owners get to decide the uses to which their property will be put. Judges simply do not like the disorder and messiness associated with freedom of expression. 

[1] Justice Koehnen added, in an appendix, an alternative analysis should the Charter have directly applied to the University of Toronto.