Right to Protest on Canadian University Campuses (an update)
By Myrna El Fakhry Tuttle
Reposted from LawNow with permission
Some universities have issued trespass notices and have ordered the encampment to be removed, with the help of the police, within hours of its set up. Other universities have filed for an injunction – that was denied by the court — to dismantle the encampment. While other universities have been granted an injunction against 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:
freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
freedom of peaceful assembly; and
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. 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 (Weisfeld) 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 following 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).
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”.
Recent Court Decisions
In May 2024, Justice Marc St Pierre denied the request for an injunction to dismantle the encampment at McGill university in McGill University et the Royal Institution for the Advancement of Learning c Association McGillienne Des Professeur E S de Droit (AMPD)/Association of McGill Professors of Law (AMPL) et al.
Justice St Pierre found 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.” He 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.
In a totally different ruling that took place in July 2024, Justice Markus Koehnen granted the University of Toronto – in University of Toronto (Governing Council) v Doe et al. – an injunction against the encampment.
Justice Koehnen decided not to determine whether the Charter applied in this case. However, he stated:
In the event I am wrong in this, I will nevertheless assess, in an alternative analysis whether the Charter applies and, if so whether the injunction the University seeks would breach Charter rights…That alternative analysis, however, makes no difference to the final outcome. In that alternative analysis I conclude that the Charter does not apply to the University in this situation. In the further alternative I conclude that if the Charter did apply, the restriction on the use of Front Campus breaches the respondents Charter rights but that the breach is justified under section 1 of the Charter (at para 116).
Justice Koehnen found that the university made a strong case for trespassing (at para 123). He granted the injunction even though he acknowledged that the encampment was peaceful (at para 69).
He stated: “the statements by the named respondents to which I was taken during oral argument are of the nature and intensity that one might expect from a student activist in their twenties, but have never approached violence or hatred” (at para 81). “There is no evidence to suggest that the named respondents have engaged in any acts of antisemitism, racism, violence, hate speech, or vandalism” he added (at para 212).
Justice Koehnen said the injunction would not prevent protesters from continuing to protest wherever they want on campus, but it would allow protests to take place only between the hours of 7 am and 11 pm. It would also prohibit them from camping, setting up structures or blocking entry to university property (at para 171).
In addition, Justice Koehnen stated that the protesters’ conduct is inconsistent with freedom of expression (at para 194). “There is ample judicial authority that says protestors do not have the right to occupy property that doesn’t belong to them” he asserted (at para 181).
He concluded by saying that “case law is clear that exercising freedom of expression is not a defence to trespass” (at para 220). “The university has suffered irreparable harm because of the protesters’ continued appropriation of Front Campus and their exclusion of others from Front Campus” he added (at para 220).
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.
University campuses are private property. Therefore, they can have their own rules about protests. But even so, they may not be private property for Charter purposes. As Richard Moon stated – regarding the Alberta Court of Appeal’s 2020 decision – “this would mean university students have a Charter right to protest on campus. It’s an interesting argument, and I expect the Supreme Court will have something to say about it at some point.”