Their legal arguments in support of pro-Palestinian campus protests lack sufficient evidence to substantiate their claims

Collin MayA month back, the administrations at the Universities of Calgary and Alberta called in city police to remove their Pro-Palestinian encampments. In the immediate aftermath, 19 professors from Alberta’s two law schools wrote an open letter claiming that removing the encampments involved “the violent infringement of students’ right to protest.”

Their main objection was that the removals, authorized by trespass notices, occurred almost immediately after the encampments were set up, with no meaningful engagement with the protestors. Moreover, the justifications used by the university administrators – that the trespass notices were necessary due to potential safety and operational hazards – do not represent proportional limits on the protestors’ rights under section 1 of the Canadian Charter of Rights and Freedoms.

With respect (as we lawyers say), I must object.

In support of their position, the profs cite three cases to make two points.

Alberta law profs earn “C” for pro-Palestinian protest legal stand

Photo by Wesley Tingey

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First, they use a case from the B.C. Court of Appeal (Vancouver v Zhang) and one from Ontario’s superior court (Batty v City of Toronto) as confirmation that temporary structures can be forms of expression attracting the protection of the Charter. Second, they argue that a case from the Alberta Court of Appeal (UAlberta Pro-Life v Governors of the University of Alberta) stands clearly for the proposition that regulation of freedom of expression on university campuses is a form of government action to which the Charter applies.

Zhang concerns a meditation hut erected by members of the Falun Gong on a public Vancouver street outside the Chinese consulate: Is such expression protected under section 2 of the Charter? The B.C. Court of Appeal found in favour of the protestors, commenting that no other form of protest would have the same impact as the hut and nothing else of significance was competing for this space.

In UAlberta Pro-Life, the Court found that the Charter applies to universities in Alberta as governmental actors. The issue here concerned an application by a university-sanctioned pro-life group to hold an on-campus demonstration. While there are additional elements to the case, the most relevant for our purposes is that the University of Alberta approved the application but applied a $17,000 security fee payable by the pro-life organization. The protestors objected that the university did not charge such a fee to other groups. The Court of Appeal agreed that the fee was unreasonable: by doing so, it confirmed that the Charter is applicable to public universities.

Batty is the most similar to the university-encampment removals. The protestors were affiliated with the Occupy movement and set up an entire encampment in a Toronto public park – not merely a hut, as in Zhang. And, unlike UAlberta Pro-Life, the protestors had not made an application to protest, and they were not engaged in a temporary march or display but a long-term tent encampment.

In Batty, the Court found that removing the protestors violated their Charter rights but deemed the action justified. The Court noted that the encampment was not particularly “temporary.” Also, unlike Zhang, competing interests were at stake as other park users were denied access to the area – not to mention the security concerns and impacts on nearby residents and businesses. Banning encampments minimally impairs the right to protest.

In Batty, the City of Toronto made it clear that protestors could use the park during the day but not set up semi-permanent encampments around the clock. Similarly, in Alberta, the universities informed the protestors that they could protest, march through campus, and use placards and displays during the day, but encampments were not allowed.

A difference between Batty and the present is that Toronto issued trespass notices a month after encampments emerged, while the actions by the Alberta universities were immediate. A similarity is that there are competing interests involved, especially as many Jewish members (of university communities across Canada and the U.S.) have expressed security concerns.

Moreover, the case law does not call for “meaningful engagement,” regardless of how peaceful the encampment may be.

It is by no means self-evident that the cases cited by the law profs, when considered for their facts, would lead a court to find that removing the university encampments under a trespass notice was unreasonable and disproportionate limits on Charter rights. There is a case to be made both ways and it would be preferable that professors of law, when publicly relying on their expertise, make that clear rather than skimming over the details that courts must consider.

I give the professors a solid “C” for their failed efforts to apply the law judiciously to the facts.

Collin May is a Senior Fellow with the Aristotle Foundation for Public Policy, a lawyer, and an adjunct lecturer in medicine at the University of Calgary. May is the former Chief of the Alberta Human Rights Commission.

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