Chris Selley: Are University of Toronto protesters ready to break camp?

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In the months since students and various hangers-on set up anti-Israel camps on Canadian university campuses – perhaps most famously at McGill University and the University of Toronto – Canadians have witnessed various maximalist explanations of the fundamental nature of the protests. On the one hand, there are those, many of them lawyers, who insist that protest is as fundamental a right in Canada as it gets, even occupying prime university buildings for weeks at a time. On the other hand, there are those, many of them lawyers, who insist that the protests are openly anti-Semitic and deserve to be rebuked for that reason alone.

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The problem with lawyers is that they are trained to take positions that range from delicate to absurd. Nuance is not really their thing.

As always, there are many people – perhaps the majority, even on such a radioactive issue – who fall somewhere in between. Tuesday’s 98-page ruling by Ontario Superior Court Justice Markus Koehnen, granting the University of Toronto an injunction ordering it to vacate its months-long encampment on King’s College Circle, could be described as an expression of that middle ground: Of course you have the right to protest, but of course it’s not absolute.

“The case law is clear that the exercise of free speech is not a defense against trespass,” Koehnen writes. “The university has suffered irreparable harm from the protesters’ continued appropriation (of university property) and their exclusion of others.”

Those involved in the camp and others “can continue to protest anywhere on campus they want,” Koehnen notes.

“The injunction does not prevent protesters from engaging in activities they are legally entitled to do, but merely prohibits them from camping, erecting structures that block access to the university campus, or protesting between 11 p.m. and 7 a.m.,” Koehnen explains.

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The question of whether and how the Charter of Rights and Freedoms applies to universities – publicly funded private institutions – is open and complicated. The University of Toronto argues that the Charter does not apply in this case. Koehnen says it is essentially irrelevant.

“If the Charter were conceptually applicable to the university, I would find that it is not applicable here because the Charter does not protect trespass,” he argues. “If I am wrong… and the Charter is in fact applicable… I would find that the trespass injunction violates the protesters’ freedom of expression, but that the violation is justified under section 1 of the Charter,” which allows interference with our rights that are “demonstrably justified in a free and democratic society.”

Koehnen explains very well what is at stake. If protesters can decide with impunity what happens on private property – or public property, or whatever private-public hybrid university campuses represent – “there is nothing to stop a stronger group from coming and taking the place of the current protesters.”

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“That,” says Koehnen, “leads to chaos.”

Despite this fairly comprehensive success for the university, Koehnen also puts a word in support of the demonstrators, especially with regard to the accusations of anti-Semitism.

“Although there have clearly been instances of anti-Semitic hate speech outside the camp, there is no evidence that the named interviewees or camp residents are connected to any of these cases,” he writes. “The camp itself houses people of diverse backgrounds, including Muslims and Jews. It hosts weekly Shabbats with Jews and Muslims. Both Jewish and Muslim members of the camp have testified to its inclusive, peaceful nature.”

I suspect many will roll their eyes at this. When I spent some time in May observing the gate to the fenced-in camp, it was clear that only Jews of a certain political affiliation were allowed in (though this applied to non-Jews as well). We are all free to draw our own conclusions about the motivations and views of the camp’s residents, and in many cases, their stupidity. When asked about their views on the Middle East conflict, a shocking number of these children (and many older than children) can only squeeze out incoherent babble and stammering.

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The question of whether the phrase “From the river to the sea” is anti-Semitic becomes a little more complicated when you consider that many of those chanting this phrase do not even know which river and which sea they are talking about.

Maybe they’re just gullible idiots? Is that better? Worse?

In this particular case, however, that is hardly legally relevant. You cannot confiscate public property, private property, or whatever intermediate property universities are indefinitely. Sorry, but that just doesn’t work. It is estimated that if the trucker convoy crowd confiscated another piece of university or public property in Toronto or Ottawa, about 99.7 percent of supporters of the Palestinian camp would agree with that principle.

Toronto police say they will enforce the injunction, which sets a deadline of 6 p.m. Wednesday to clear the encampment. That’s absolutely no guarantee they will actually enforce the injunction, but it’s more than they usually say. Ontario police are very good at not enforcing the injunction. They often pride themselves on it.

But at the time of writing, reports from the scene indicate that some campers have already started packing up. And if everything ends peacefully on Wednesday night, the question for the University of Toronto will be quite simple: Why did you allow this to happen in the first place? Why did you cordon off Kings College Circle to prevent this very outcome, and not in secure Fences or security measures that could have prevented protesters from easily cutting through the fences and using them for their own ends? Why did you threaten sanctions and then not follow through?

And what will you do next time? It shouldn’t take three months to get an injunction, but in this country it often does.

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