By Jamie Cameron

The pro-Palestinian campus encampments of spring 2024 presented striking images of power and vulnerability. Power, because even when short in duration, the encampments engaged in performative acts of collective expression, occupying university property to leverage their messages and demands. Vulnerable, at the same time, because protesters were subject to university authority, the universities’ rights as property owners, and the law of trespass, which could be and was used to end encampments.

From the start, the protest camps were there on borrowed time.

In Toronto, Occupy U of T began on May 1 and maintained a camp until July 2, when the Ontario Superior Court granted the University of Toronto an injunction ordering occupants to leave the site at King’s College Circle. It was not because the encampment was disruptive or disorderly; to the contrary, the court in University of Toronto v. Doe et al. found that the demonstration was peaceful.

Notably, Justice Koehnen rejected the university’s allegations that occupants had engaged in violence, hate speech and antisemitism, stating that he could not make reliable findings of fact based on double and triple hearsay. He found that any transgressions that occurred were committed by third parties and not members of the encampment.

Even so, peacefulness did not count for much when set against the law of trespass and the university’s rights as property owner. Enforcing those rights was a relatively straightforward matter once the court ruled that the Charter of Rights and Freedoms did not apply. Nor were other sources of rights protection especially helpful.

After sidelining the Charter, the judge cited the related concept of “Charter values,” which infuse decision-making when the Charter does not apply. He referred to the university’s free speech policies. Justice Koehnen described those policies as “directionally similar” to the Charter’s values, but concluded that occupants had no right to set up an encampment on university property.

Under the three-part test for an injunction, the court found that the university suffered irreparable harm because it lost control of its property and could not prevent the encampment from excluding others from King’s College Circle. Even though the protesters regulated access to the site to minimize the risk of confrontation or violence, Justice Koehnen held that the occupants were trespassers who violated the rights of others.

Meanwhile, the court offered non-binding remarks, known as obiter dicta, explaining that although the Charter could not be considered — because requisite notices of a constitutional question were not filed — it would not have applied anyway. If opinion on the Charter’s application to universities is divided, the issue is complicated in Ontario because the government’s directive of 2018 imposed a free speech code and reporting requirements on all colleges and universities in the province. In this instance, the judge rejected the submission that Ontario’s mandatory speech policy is a form of government regulation that engaged the Charter.

Despite that outcome, it is significant that the encampments engaged two of the Charter’s fundamental freedoms: freedom of expression (s.2(b)) and freedom of peaceful assembly (s.2(c)). The court’s conclusion that Occupy U of T was peaceful brought the encampment within the scope of s.2(c)’s protection.

To this point, peaceful assembly is underdeveloped in the Charter jurisprudence because issues about collective expression have been subsumed under s.2(b). Despite the assumption that s.2(c) subsides into s.2(b), freedom of individual and collective expression are not one and the same.

One issue in the proceedings illustrates that difference. As Justice Koehnen recognized, individuals who exercise their right of expressive freedom remain accountable for their own legal transgressions. Their expressive activities are not attributed to the collective unless those actions express and embody the collective’s objectives.

In principle, freedom of expression is an individual right, but freedom of assembly is a distinctive entitlement because it empowers collective voice and performative expression in the public sphere. Gatherings, demonstrations and movements are a cornerstone in our system of participatory democracy, joining isolated voices in solidarity to present a collective message in public space.

Demonstrations often rely on disruptive and performative devices to communicate their message. Even without being unpeaceful, their actions can offend and inconvenience the surrounding community. Like other guaranteed rights, s.2(c) — and s.2(b) as well — are subject to the concept of reasonable limits under s.1, where violations of the Charter can be justified in a free and democratic society and “saved,” or upheld. Had the Charter applied, that step would have imposed a burden on the university to justify an order for an injunction to dismantle the encampment.

In general, limits on peaceful assemblies will depend on variables such as a demonstration’s size and location, the place or space it occupies, the degree of disruption and inconvenience it poses to the community, and its duration. On that last point, a demonstration in the form of an occupation or encampment that is ongoing and without end is questionable.

Once again, Occupy U of T is a case in point. Effectively, the encampment claimed a right to occupy and control King’s College Circle, appropriating that space for its exclusive and indefinite use, with no endpoint in sight except when their demands were met. This view defines the far end of the spectrum for freedom of expression and assembly.

Though it protects the freedom to hold a protest in public space for a temporary or prescribed period of time, freedom of assembly does not include the right to conduct a demonstration that occupies property indefinitely. On this, a quick comparison is again instructive.

Even as Occupy U of T maintained its site for more than 50 days, the protest camp at York University was dispersed within 24 hours, with the help of law enforcement. While York’s peremptory termination of the demonstration denied protesters an opportunity to communicate their message, the U of T encampment had ample opportunity to publicize its objectives.

Meanwhile, the duration of encampments across Canada varied, and whether others had sufficient opportunity to communicate their message was a function of context that differed from one setting to another. The central takeaway is that freedom of peaceful assembly is meaningless unless it includes the right to be present in and even occupy public space, at least for a time, and have sufficient opportunity to communicate a message.

Even though it is not binding, University of Toronto v. Doe’s conclusion that the law of trespass was not subject to the Charter created precedent for the use of injunctions to dismantle student protest gatherings on campus property and can be followed by other courts.

Throughout the encampment spring of 2024, universities affirmed their commitment to values of expressive freedom and rights of protest. In the U of T injunction proceedings, the court emphasized that students remained free to engage in a range of protest activities elsewhere on campus.

Despite those assurances, rights of protest on university campus are precarious. In the aftermath of the 2024 encampment movement, universities must develop policies protecting freedom of assembly and freedom of collective expression in the public spaces of university property. Perhaps more to the point, student organizations and academic staff associations need to take the initiative and advocate for universities to recognize and protect peaceful assembly on campus grounds.

Jamie Cameron is Professor Emerita at Osgoode Hall Law School, York University. She is grateful to Penni Stewart and Jim Turk for their comments on an earlier draft.