Right to Protest on Canadian University Campuses

By Myrna El Fakhry Tuttle

Protest encampments on Canadian university campuses have been dealt with variously. Some universities have allowed the encampment to stay on campus while negotiating with the student protesters. Some have issued trespass notices and have ordered the encampment to be removed, with the help of the police, within hours of its set up. Yet other universities have filed for an injunction – that was denied by the court — to dismantle the encampment.

The Right to Protest

The right to protest is constitutionally protected by the Canadian Charter of Rights and Freedoms (the Charter).

Section 2 of the Charter states:

Everyone has the following fundamental freedoms:

…

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

(c) freedom of peaceful assembly; and

(d) freedom of association.

Freedom of speech is also stated as a human right and fundamental freedom in the Canadian Bill of Rights, sections 1(d) and (f).

The right of students to express their opinions is a crucial element of a democracy. Freedom of expression is a basic characteristic of personal development. It gives us the right to dissent and the right to be heard. We can make our own choices about our basic beliefs by being exposed to different thoughts and opinions.

As I mentioned in a previous article, “the freedoms mentioned in the Charter guarantee that Canadians are free to hold their own opinions, discuss them and communicate them to other people. These activities are essential principles of individual liberty. They are also crucial to the success of a democratic society where people can freely discuss matters of public policy, can criticize governments and can express opinions on how to deal with social problems.”

Section 2(c) includes the right to participate in peaceful demonstrations, protests, parades, meetings, picketing and other assemblies.

When it comes to universities, provincial courts of appeal have been inconsistent on the question of whether the Charter applies to university campus events. However, in UAlberta Pro-Life v Governors of the University of Alberta, the Alberta Court of Appeal ruled in 2020 that the University of Alberta’s regulation of free expression on campus is a form of governmental action subject to the Charter.

What does Freedom of Expression mean?

In Irwin Toy Ltd. v Quebec (Attorney General), the Supreme Court of Canada stated:

‘Expression’ has both a content and a form, and the two can be inextricably connected.  Activity is expressive if it attempts to convey meaning.  That meaning is its content.  Freedom of expression was entrenched in our Constitution and is guaranteed in the Quebec Charter so as to ensure that everyone can manifest their thoughts, opinions, beliefs, indeed all expressions of the heart and mind, however unpopular, distasteful or contrary to the mainstream.  Such protection is, in the words of both the Canadian and Quebec Charters, “fundamental” because in a free, pluralistic and democratic society we prize a diversity of ideas and opinions for their inherent value both to the community and to the individual.

…

We cannot, […] exclude human activity from the scope of guaranteed free expression on the basis of the content or meaning being conveyed.  Indeed, if the activity conveys or attempts to convey a meaning, it has expressive content and prima facie falls within the scope of the guarantee.  […]. It might be difficult to characterize certain day-to-day tasks, like parking a car, as having expressive content. To bring such activity within the protected sphere, the plaintiff would have to show that it was performed to convey a meaning.  For example, an unmarried person might, as part of a public protest, park in a zone reserved for spouses of government employees in order to express dissatisfaction or outrage at the chosen method of allocating a limited resource.  If that person could demonstrate that his activity did in fact have expressive content, he would, at this stage, be within the protected sphere and the s. 2(b) challenge would proceed.

The content of expression can be conveyed through an infinite variety of forms of expression: for example, the written or spoken word, the arts, and even physical gestures or acts.  While the guarantee of free expression protects all content of expression, certainly violence as a form of expression receives no such protection.

The Federal Court of Appeal held in Weisfeld v Canada that “expression goes beyond words. People may choose to amplify or dramatize their messages in many ways: a sandwich board, a soapbox, a megaphone, a flag, a banner, a placard, a picture, a petition….”

In Batty v City of Toronto, Justice Brown adopting the reasoning in Weisfeld, held that the structures and tents erected by the protesters in a public park constituted a mode of expression protected by section 2 of the Charter (at para 72).

In addition, protests and demonstrations take place to spread a message; therefore, courts have dealt with section 2(c) as being ancillary to freedom of expression in section 2(b).

According to the Canadian Civil Liberties Association:

Protesting is an essential democratic tool and is given constitutional protection through the Canadian Charter of Rights and Freedoms’ guarantees of freedom of expression, freedom of peaceful assembly and freedom of association. Protests are one way that individuals and communities can send a loud message to elected officials and others in positions of power. Public events and protests can bring attention and momentum to an incident or cause you care about, which can put the issue onto the public agenda and open the doors for meaningful change.

Limits on Freedom of Expression

Charter rights and freedoms are not absolute, the government can impose reasonable limits on them under section 1 of the Charter, which states:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

This section requires a balancing of people’s rights and freedoms against valid government objectives and policies. This balancing act seeks to locate “reasonable limits” that can be “demonstrably justified in a free and democratic society.”

For example, freedom of expression does not protect violence or threats of violence. It is limited by the Criminal Code hate speech laws. Therefore, protesting itself is legal, as long as protestors do not break any laws.

As Julian Walker stated: “the Charter’s guarantee of freedom of expression is not absolute. It has upheld restrictions on forms of expression that it has deemed to run contrary to the spirit of the Charter, such as hate speech, given that the purpose of such expression is to prevent the free exercise of another group’s rights”.

In his decision on May 15, 2024, regarding the request for an injunction to dismantle the encampment at McGill university, Justice Marc St Pierre stated that “there was no urgent need to act since no serious or violent incident had occurred at the encampment since it was established and even a confrontation with counter-protesters was peaceful.”

Justice St Pierre added that “other factors involving the balance between the activists’ right to protest and freedom of expression and, conversely, the university’s right to its property would take more time to weigh and shouldn’t be decided within the context of a provisional injunction request.” Therefore, he denied the injunction.

Summary

Peaceful protests cannot be silenced in a free and democratic society. Students have a right to express their opinions on university campuses. If there is any threat of violence, universities can take reasonable steps to avoid that.

Protests can obstruct the normal use of public spaces, and that is their purpose. In Bracken v Fort Erie (Town), the Ontario Court of Appeal said that “a protest does not cease to be peaceful simply because protestors are loud and angry” (at par 51). Also, in Fleming v Ontario, the Supreme Court stated that “the lawful activity that is being restricted by the arrest may itself be protected by the Charter. Where a police action prevents individuals from lawfully expressing themselves because their expression might provoke or enrage others, freedom of expression as guaranteed by s. 2(b) is also implicated” (at para 66).