Collin May, National Post, June 25, 2024

A 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 this move was a “violent infringement of students’ right to protest.”

The main complaint raised by the professors was that the removals, authorized by trespass notices, occurred almost immediately after the encampments were set up, with no meaningful engagement with the protesters. They also argued that the university administrators’ justification for issuing trespass notices — that they were necessary due to potential safety and operational hazards — did not represent proportional limits on the protesters’ rights under section 1 of the Charter. With respect (as we lawyers say), I must object.

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

First, they used 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 argued 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 considered a meditation hut erected by members of the Falun Gong on a public street outside the Chinese consulate in Vancouver, and whether such expression is protected under Section 2 of the Charter. The B.C. Court of Appeal found in favour of the protesters, commenting that no other form of protest would have the same impact as the hut and nothing else of significance was competing for the space.

In UAlberta Pro-Life, the court found that the Charter applies to universities in Alberta as governmental actors. The case concerned an application by a University of Alberta pro-life group to hold an on-campus demonstration which university administrators had approved — on the condition that the group pay a $17,000 security fee. The group objected that the fee was not charged to other groups. The Court of Appeal agreed that the fee was unreasonable, and in doing so, confirmed that the Charter is applicable to public universities.

The circumstances of the third case, Batty, were the most similar to the recent university encampment removals. The protesters 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 protesters 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, it was found that removing protesters violated their Charter rights, but it was justified. The court noted that the encampment was not particularly “temporary.” Also, unlike in Zhang, there were competing interests at stake, as other users of the park were denied access to the area — not to mention the impacts on nearby residents and businesses. Banning encampments minimally impaired the right to protest.

In Batty, the City of Toronto made it clear that protesters could use the park during the day but could not set up semi-permanent encampments around the clock. Similarly, in the case of Alberta’s pro-Palestinain encampments, the universities informed the protesters 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 Alberta universities did so immediately. A similarity is that there are competing interests involved, especially as many Jewish members (of university communities across Canada and the United States) have expressed security concerns.

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

It is not certain that the cases cited by the law professors would lead a court to find that the removal of the encampments unreasonably and disproportionately limited the protesters’ 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.

For their failed efforts to judiciously apply the law to the facts, I give the profs a solid “C.”

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.