The U of T encampment decision explained - Why the Charter does not apply

On July 2nd, Justice Koehnen of the Ontario Superior Court released his granting the University of Toronto an injunction to remove pro-Palestinian/anti-Israel protesters who had set up a fenced off encampment on the grass on front campus.

As I blogged about last week, I actually went to see the encampment after watching two days of hearings. At the hearings, the University had argued that the protesters were trespassing, but the protesters argued that the encampment was constitutionally protected expression. I wanted to see the encampment for myself before the decision came out, because I thought there was a very good likelihood that the judge would grant the injunction. One of the reasons I thought this would be the outcome is because the case law suggests that (generally) the Canadian Charter of Rights and Freedoms does not apply to universities.

Well, the decision is out, and Justice Koehnen said he doesn’t even need to consider the question of whether or not the Charter applies because the protesters actually messed up their procedure. They had failed to file a Notice of Constitutional Question. But he said even if they hadn’t messed up their procedure, an alternative analysis would find that the Charter doesn’t apply. He gave the protesters are given until 6 pm on Wednesday July 3 to leave.

The police said if they don’t leave, they will enforce the injunction. As it turns out, the protesters did not want to see a police showdown and they left on their own before the 6 pm deadline. They left some of their art installations, including their olive tree, which they decorated with symbols and writing, including heinous inverted red triangles (a symbol used in Hamas propaganda videos to identify human targets the terrorists are about to murder). Once the encampment was cleared, some counter protesters knocked the olive tree over.

There are a lot of really interesting issues in this decision, but I want to focus on one – the finding that the Charter does not apply to the university.

First, as I’ve written before, I do not agree with the protesters cause. I wanted to visit the encampment because I am interested in protest movements, and I was following this case. And as a society we don’t prohibit or permit protests on the basis of the cause, and whether or not we agree with it or not. The right to freedom of expression is content neutral. But does the right to freedom of expression apply here?

Certainly the university has made a commitment to the values of freedom of expression, and they should. Universities are places of debate and discovery and truth seeking, and expression that makes people uncomfortable is well suited to a university campus. But that’s a commitment the university made, and the university has said they want to use the green space in Kings College Circle to balance the expression of everyone on campus. When the encampment was in place, that green space was occupied by a small group of protesters who commandeered fences to block the whole area off, who controlled entry to the area, as I experienced they questioned people who want to enter, and had “guards” posted all around the area. The encampment was not allowing for debate and discovery; the university said it was a trespass of their property. The judge agreed, this is a tort of trespass.

The protesters said that removing them would violate their right to freedom of expression guaranteed under the Charter. But having failed to file their Notice of Constitutional Question, Justice Koehnen declined to even address the question of whether the Charter applies.

But then he did something kind of funny. He said that in the event that he is wrong about the procedural issue about notice, he would nevertheless consider the question of whether the Charter applied. And concluded it does not apply. He did this in an Appendix to the reasons, because he said he did not want it to interfere with or confuse the decision. He wrote the Charter question makes no difference to the final outcome – because even if the Charter did apply to the university, the restriction on the protesters use of the green space in Kings College circle is a justified limit under section 1 of the Charter.

I’m not surprised that the Charter doesn’t apply here. There is a good amount of case law that has considered this question, and basically, it generally does not apply.

The Charter applies to government, and a university is not government. There was an important case about this in 1990 called McKinney v Guelph that dealt with mandatory retirement, which some professors and librarians argued was discriminatory. The Supreme Court concluded that universities do not perform functions of government because “the manner in which they are presently organized and governed” gives them legal autonomy and ensures they are not controlled by government.

The court re-visited the question in another case called Eldrige v British Columbia, where the court held that the charter would apply, (1) if the university is governmental in its nature by virtue of the degree of control the government exercises over it, and (2) if a particular activity of the university is governmental because, for example, it implements a specific statutory scheme or government program.

The University of Toronto does neither. The university governance model in Ontario means that universities are not government actors and decisions about the management of the university (and its property) are not made to further any specific government policy.

This was emphasized in the 2012 case of Lobo v Carleton from the Ontario Court of Appeal found that a university decision about when and how its property to be used does not engage the Charter. Justice Koehnen in this case would be found to follow that decision.

The wrinkle is that there are some Alberta cases where the Charter was held to apply. But the conclusions in the Alberta cases were reached after looking at a different statutory and regulatory scheme that applies in Alberta. Justice Koehnen wrote that Alberta universities seem to be under more immediate government control and direction than universities in Ontario. In fact, the Lobo case looked at one of those Alberta decisions and rejected that approach and found that the Charter didn’t apply to Carleton.

In this case, the uncontradicted evidence of the university was that it is independent of and from all levels of government, and in fact the university must be self governing to uphold and promote academic freedom and carry out its core mission.

One last point, which is an important one that my colleague Josh has written about in the National Post. The encampment is not just expression, it is actually a tort. The tort of trespass. Josh has argued that punching someone in the face may be expressive, but its not protected expression under the Charter. Likewise, trespass, as a tort, is not protected expression. The court seemed to agree with this sentiment, and wrote in the appendix that even if the charter applied in concept to the university, that it doesn’t apply here because the Charter doesn’t protect trespass.

I think that the Charter issue is the most fascinating part of this case, and a different outcome would have had major repercussions. But Justice Koehnen called the Charter issue a red herring, because ultimately the injunction could be granted without even considering it. The injunction was granted on the basis of the irreparable harm caused by the trespass to property.

A question I’ve been asked is why the result of this injunction is different from the result in the McGill and Concordia injunctions. In fact, Justice Koehnen considered those cases. Those cases used a different procedure that is far more truncated. This case was an interlocutory injunction, and the Montreal cases dealt with interim injunctions. There is much more notice and a fuller record in an interlocutory injunction like this one. This case gave the protesters a lot of time to respond, and they did respond, producing thousands of pages of materials.

It is also interesting to note the change in who is arguing about whether or not the Charter should apply. My colleague Joanna Baron has written in The Hub that in the current cycle of the culture wars, it is now progressives clamouring for the Charter to apply to universities, because they want these pro-Palestinian/anti-Israel protests to continue.  But  ironically, it was just a few years ago at the zenith of “peak woke” that it was conservatives and free-speech fundamentalists arguing for free speech protections to extend to universities to fight back against disinvitations and predatory investigations. 

What do you think of the Charter analysis? Do you think the Charter should apply? Do you think it’s important to have a consistent rule about this, that doesn’t vary depending on what you think of the content of the protest? I do! I thought it was really interesting that the judge did that analysis when he didn’t have to, and it seemed to be because people are so invested in this case. Let me know what you think.