Jangling the Bells: The Report of the Third-Party Investigation of the Clearing of the Palestinian Solidarity Encampment at the University of Alberta
On 11 May 2024, in the predawn hours, members of the Edmonton Police Service walked onto the campus at the University of Alberta dressed in riot gear to execute the direction of the University of Alberta’s president, Bill Flanagan, that they clear away a Palestinian solidarity encampment that had been set up just two days before. Flanagan’s choice to exercise coercive force against the protestors, whose encampment was peaceful, so outraged the University of Alberta community that there were numerous calls for Flanagan’s resignation. A subsequent statement by the president, which made various unsubstantiated claims about the encampment, caused further outrage. (Flanagan made it sound as if members of the encampment were armed and taking illegal drugs.) The Arts Faculty Council passed a vote of non-confidence in Flanagan, and the General Faculties Council passed a motion recommending to the Board of Governors that it arrange for a third-party investigation.
The report of this investigation, by retired King’s Bench Justice C. Adèle Kent, exonerates Flanagan. The report should, however, settle nothing. I write to draw the report to public attention, for if it goes unchallenged, it will set an awful precedent not just for the University of Alberta, but for students’ rights of free expression and of assembly more broadly in Canada.
As a Shakespearean, I take inspiration for the work I aim to do here from a little-known play of Shakespeare’s, Pericles (c. 1608), possibly co-authored with George Wilkins, in which three nameless fishermen talk politics. One of them declares that fish in the sea live just as men do on land, with the ‘great’ consuming the ‘little’. He then claims that there have been notorious ‘whales o’th’ land’ who have been known to ‘swallow’ whole parishes, ‘church, steeple, bells, and all’. (This is a reference to the English Reformation.) One of his mates contends that if he were the sexton of any such church, and swallowed by the whale too, he would keep up ‘a jangling of the bells’ from inside the whale’s belly until the whale was forced to ‘cast bells, steeple, church, and parish up again’. Those of us who are members of institutions under threat from the actions of the ‘great’ must ‘jangle’ the institution’s ‘bells’ if we are to help protect the institution against fundamental damage. The damage that concerns me here is potentially damage not just to the University of Alberta, but to rights of free expression and of assembly at public universities across the country.
In her report, issued belatedly on 6 December 2024, Kent contends that Flanagan had three ‘reasonable’ options before him in relation to the University’s encampment: he could ‘apply for an injunction, negotiate with the protestors, or call the police’ (p. 100). All of these she declares to be reasonable measures. Under the first of these options, Flanagan likely would have had, she contends, a court-ordered injunction for the removal of the encampment in under two weeks. This was in her view the ‘cleanest’ of his options (p. 101). The second option, she notes, could have been pursued—‘there was some but not a great deal of room to negotiate, but certainly a possibility to agree to agree’ (p. 52)—but the protestors’ request that they have the opportunity to speak to members of the senior administration who had the power to make decisions was not met. The chair of the Board of Governors, Kate Chisholm, purportedly informed Flanagan that no one should engage with the protestors on the principal demand, that the University divest from ‘companies financially complicit in the occupation and genocide of Palestinians’ (p. 52) as ‘they could not accede to the demands’ (p. 61). For Flanagan, the third option, ‘call the police’, was ‘the only reasonable measure’ given a host of safety concerns that he invoked based on suppositions and claims about the encampment that lack evidentiary support. The claims that Flanagan made in order to shape public perception in his favour have been rigorously debunked by a faculty member who participated in the encampment, David Kahane (Political Science), in a letter to the Board of Governors.
The most alarming of Flanagan’s specters, in my view, is the claim that the encampment needed to be shut down before ‘counter-protestors’ could arrive. These entirely imaginary counter-protestors were depicted as people likely to incite violence. In support of this particular specter, Kent writes, ‘Although there was no evidence of counter-protestors in the Quad, had some sort of group materialized, it could have sparked violence’ (p. 66). She thus characterizes the decision to call in the police as ‘entirely precautionary’, declaring ‘There is nothing wrong in that approach’ (p. 67). But surely there is a great deal of wrong in an approach that allows ‘potential dangers’ to be permitted to quash the free expression and assembly rights not just of those who were already protesting but those who may wished to have offered a counter-protest.
I find nothing in Kent’s report that accords with the legal perspectives offered by the law professor who is arguably Canada’s foremost constitutional expert, Jamie Cameron (now emerita, formerly of York University’s Osgoode Hall). The absence of such legal perspective is especially alarming to me as I had provided Kent, in my submission to her enquiry, with a brief account of and link to a blog post that Professor Cameron wrote for the Centre for Free Expression last June, ‘Student Protest Encampments and Section s.2(c) of the Charter’. There Cameron notes that the calling in of police to deal with any protest at a university should only ever be a ‘last resort’. She also notes not only that ‘freedom of peaceful assembly should receive a generous interpretation that does not exclude disruptive gatherings’, but also that any attempt to impose limits on the exercise of expressive rights or rights of assembly ‘must be evidence-based to ensure that restrictions are grounded in facts’. Even by Kent’s acknowledgement, Flanagan was not necessarily dealing in facts on the ground at the University of Alberta in his characterizations of its encampment, but, rather, may have been characterizing the encampment according to terms, ideas, and statistics that he had garnered from encampments in the United States (see, for example, p. 84). Wherever his ideas of the encampment were coming from, Flanagan did precisely what Cameron says should never happen: ‘Dismantling an assembly just to get rid of student demonstrators is not justifiable’.
It remains unjustifiable despite the concoction of any narrative that aims to secure a community’s post-factoconsent to the decision with a specter that the assembly was ‘unsafe’. In an Op-Ed in the Edmonton Journalon 24 May 2024, ‘Alberta Universities Must Answer for Force against Protestors’, former Queen’s Bench justice Sheila Greckol noted that
If there was credible evidence of threats to safety [at either the University of Alberta or the University of Calgary], the universities could have used civil process, with procedural safeguards, and sought injunctive relief, as McGill did, affording the students their day in court to advance Charter rights and to test the universities’ claims. Police use of force against demonstrating students must be a last resort, reserved for threatened or actual criminal conduct.
And as Cameron notes in her 28 October 2024 CFE blog post ‘A Concept of Peaceful Assembly Under s.2(c) of the Charter’, section 2(c) of the Charter, which protects the collective right of assembly,
protects the entitlement up to the point of violence, threats of violence, or an intention to commit acts of violence. In short, an assembly is only unpeaceful and outside s.2(c) when it crosses the line to adopt violent objectives and actions.
This is precisely the legal understanding that Flanagan and the senior administration appear to have refused to acknowledge. Having, it seems, rejected the true ‘cleanest’ course, which would have been to tolerate the encampment and engage directly with the protestors, and having, it seems, not been willing to exercise enough patience to apply for an injunction, Flanagan chose instead to call in the police and attempt to manufacture the consent of the community, after the fact, with the claim, ‘There can be no question that the encampment posed a serious and imminent risk of potential violence and injury to university community members and members of the public’ (my emphasis).
The report makes clear that Flanagan was supported in this approach by the chair of the Board of Governors, Kate Chisholm, who took the position, implicitly, that safety concerns trumped any Charter concerns, and was willing, it seems, to generate her own specters, including that that there were ‘paid protestors’ in the encampment (p. 61).
In the report, I don’t think you will find a single member of the senior administration talking about the University’s choice of how to proceed in relation to the University’s ‘Freedom of Expression’ statement or the Charter, or the special role that our public universities play in supporting democracy in Canadian society, in the course of their conferrals and decision-making on May 9th and May 10th, 2024. This is quite something, given that one of the Charter cases in question (reviewed briefly by Kent), UAlberta Pro-Life v Governors of the University of Alberta, involved the Quad at the University of Alberta. The Court of Appeal of Alberta found (amongst other things) that the gathering in question in that case ‘fell within section 32(1) of the Charter’ because ‘The ability of students to learn, debate, and share ideas is a central tenet of the university’s purpose and its grounds are physically designed to facilitate that exchange’ (p. 74).
Despite the fact that Kent therefore concludes that the Charter is ‘likely’ to be found to apply to the Palestinian solidarity encampment, she seems to contend that s.2(c) of the Charter should not apply to the encampment with her declaration that no one has a ‘right to a particular physical venue for the assembly’ (p. 76). This implies that s.2(c) may be defeated simply by disallowing protestors the use of a given space. Kent concludes that the administration ‘had the legal authority to do what it did’ and that it ‘did not need an injunction’ (p. 79). In a final stand-alone sentence she declares, ‘In my view, the administration’s ability to have the police dismantle the Encampment was reasonable and justifiable under the Charter’ (p. 79). I hope I am not alone in finding shocking such cursory accounting for the relevance of the Charter.
You will certainly not find anything in Kent’s report that begins to resemble the claims that we see Jamie Cameron making in a Fall 2024 blog post for the CFE in which she notes that
By protecting collective expression s.2(c) promotes a culture of open democracy, enables non-violent participation in public affairs, and invigorates dialogue on issues of public interest.
These are precisely the values that Flanagan turned his back on as he and other members of the senior administration reached, instead, for excuses that would allow them to issue trespass notices and then invoke the Criminal Code as the basis upon which they would take the action of calling in the police in the name of ‘safety’ (p. 61 and p. 65).
In a lengthy scholarly discussion of whether the Charter applies to universities, Sarah Hamill notes that universities, a special kind of property, are ‘public enough’ for the Charter to apply to them in certain circumstances. Hamill also notes that it is the ‘very purpose of a university . . . to foster debate and discussion’. What I wish to note is that in defining the University as ‘private property’ for the University’s purposes Flanagan made a choice: a choice to privilege a certain narrow set of concerns over broader obligations, broader obligations tied to the very purpose of the University not just as a place of open dialogue supporting ‘a culture of open democracy’, ‘non-violent participation in public affairs’, and ‘dialogue on issues of public interest’, but also a place of evidence-based decision-making which values reason at all times over force.
The University’s purported commitments to Indigenization give the University’s choice to characterize the land in question as ‘private property’ another dimension. With this choice, the University turned its back on other ways of defining the land on which its buildings stand. As a statement signed by members of Indigenous communities and non-Indigenous treaty allies noted in response to what Flanagan chose to do in the University’s name, the land in question should have been treated as Treaty 6 territory, and commitments to treaty principles honoured. These should have begun with defining the land in question as a place where the members of the senior administration were bound along with everyone else to ‘the sacred promises . . . to live according to the principles of miyo-wîcêhtowin (good relations), wîtaskêwin (peaceful living together on the land), and tâpwêwin (speaking with truth)’.
The ‘Statement of Treaty Principles University of Alberta’s May 11th attack on students, staff, and community’ further declares that:
In official statement after official statement after official statement, Bill Flanagan has violated the principle of tâpwêwin, speaking with neither truth nor precision. His false claims and hyperbolic expressions of concern for safety have been refuted by video evidence and multiple testimonials.
All of Canada’s public universities, not just a university that has ‘Quaecumque vera’ (‘whatsoever things are true’) as its motto, must be places of utterly scrupulous truth-telling. The public should never be presented by a university president with unsubstantiated claims that lead the public to believe allegations that a university would promote in order to trump protestors’ rights of assembly.
Every effort must also be made to keep Canada’s public universities free of violence. Several professors of law at the University of Calgary and the University of Alberta issued a joint letter on 14 May 2024 in which they objected to what Flanagan and his counterpart Ed McAuley at the University of Calgary had done in calling in the police to clear the two universities’ respective encampments. They urged that these presidents apologize for having issued trespass notices on peaceful protestors, and deplored the ‘excessive violence’ to which the police resorted, for which, they noted, there was video footage. While Kent’s report shows that there was some discussion amongst members of the senior administration of the University of Alberta expressing their expectation that the police would take a ‘soft’ approach with the protestors, to be clear, the calling-in of the police was already an act of violence against the protestors no matter how the police chose to exercise their coercive force. With his decision, Flanagan shut down the possibility of open dialogue in support of a culture of non-violent, participatory democracy.
This is why it is so egregious that Flanagan could recently declare in public, at a meeting of the General Faculties Council, that he had no control over how the police conducted themselves: ‘The matter of how the police conducted themselves was entirely their decision. The university had no role in that’. There is no record of Flanagan’s remark in the minutes of the General Faculties Council which records only points about Kent’s report made by elected members. But thanks to the work of Kathryn Johnson, a student reporter for the University of Alberta’s student newspaper, The Gateway, we know that Flanagan, having unleashed the police on peaceful protestors on campus, now thinks he can wash his hands of how the police chose to act.
The simple fact of the matter is that on 10 May 2024 Bill Flanagan took the decision that it was acceptable for coercion to be used against the protestors in the encampment to clear them from the space of the Quad, and this coercion was in and of itself a form of violence designed to strip students of their expressive rights no matter how the individual police officers chose to conduct themselves, and no matter how many of the students walked away having been struck by the officers or psychologically traumatized by the use of coercive force against them. And we should not lose sight of the fact that Flanagan took this decision to resort to police force rather than seeking a court injunction after a mere two days in the encampment’s life. Universities should seek to support protestors and to engage with them, rather than seek court injunctions against them, but a court injunction would have at least permitted the students to give affidavits and have their day in court with the encampment remaining in place in the meantime. Flanagan’s decision pre-empted that possibility, and Kent’s report supports him in treating the matter as a closed case in which a ‘reasonable’ course of action was pursued, and no fundamental rights violated.
All of this, it seems, is justifiable in Kent’s view because she accepts the claims that the administration had to act to keep members of the university community ‘safe’. Kent herself in effect endorses a logic of prior restraint when she writes that while ‘the Encampment was peaceful, open, and had fire extinguishers’, ‘[w]hat existed at 2:00pm could be markedly different that [sic] what could have been at 8:00pm or 12:00pm the next day’ (p. 79). Indeed, things did change. But the person who made the University of Alberta campus unsafe was Bill Flanagan, in authorizing the use of police force against peaceful protestors.
It is another woeful aspect of this story that members of the university community who were non-academic staff—I am not sure of how many—purportedly lost their jobs last year for retweeting statements of faculty members critical of the president. That firing or firings show(s) that the concerns about how rights of free expression are being violated at the University of Alberta range beyond what occurred when the president authorized the use of the police against the protestors in the Quad. Flanagan could not take action against faculty who criticized what he had done or who called for his resignation because faculty have academic freedom, with academic freedom including intramural and extramural rights of critique. But someone, it seems, took action against one or more members of the non-academic staff who shared such critique. This is horrifying. No one should have been fired for criticizing the president for calling in the police on peaceful protestors or for his subsequent narrative about the nature of the encampment. When leadership of a public institution takes an action that members of the institution find morally deplorable, every one of them should have the right to jangle the bells.
The president is by this juncture no doubt assuming that all of these matters are fully done and dusted, and that he can count on the silent majority whom Kent invokes as clearly approving of the president’s choices to give no further thought to what happened last Spring. But we are at a stage in world history in which democracy is experiencing unprecedented threats from authoritarianism—exactly the moment in which rights of free expression and rights of assembly need to be more arduously defended than ever. As Justin Trudeau recently noted, in relation to Donald Trump’s apparent abandonment of the defense of Ukraine, ‘we need to make sure that might no longer makes right in this world’. The great challenge of meeting that broad objective, which is the objective of a just humanity, starts with not permitting ‘might’ to be used against peaceful protestors on Canada’s university campuses as they protest against violence occurring elsewhere.
It is my fervid hope, for the sake not just of the future of the University of Alberta, but for the health of democracy in Canada, that someone is going to bring a Charter challenge against the University of Alberta, and I very much hope that challenge is underway before we reach the one-year anniversary of the forcible clearing of the encampment. As Cameron suggested in one of the CFE’s panel events, ‘What should be the limits to freedom of expression in Canadian universities?’ (28 January 2025), not only do the police have a duty to protect Canadians as they exercise their expressive rights, the minute that police stepped onto campus to clear any encampment at any university Canada in 2024 the Charter was ‘engaged’. The students who found themselves subjected to police force as a result of Flanagan’s choice need to have their day in court.