In the early morning hours of May 2, 2024, students at University of Toronto (U of T) set up an encampment on front campus as part of a global movement calling for solidarity with Gaza and divestment from companies associated with the conflict. Throughout the next few months, the encampment would become a focal point for protest and solidarity activities, but also a marker of legal precedence in Canadian law, defining the scope of free speech and assembly in the Charter as it pertains to private property. 

Purpose of encampment

According to Sara Rasikh, media liaison for the U of T encampment, the primary purpose of the encampment was to create a sustained and visible protest that the university administration could not easily ignore. It served as a constant reminder of the students’ demands for divestment and their solidarity with Gaza. “An encampment was chosen because it symbolized a persistent presence and commitment to the cause, mirroring successful historical protests like those for climate justice and against apartheid,” Rasikh said​ in an interview with Imprint. 

Rasikh explained that previous actions, such as teach-ins, guides, walkouts, and protests, failed to bring about meaningful engagement from the university administration. Despite hundreds of participants and increasing momentum, the administration did not agree to meet with the students or address their demands. “The encampment was a last resort to force the university to acknowledge the gravity of the situation and begin negotiations,” Rasikh said. 

Setting up the encampment

The encampment was established at 4 a.m. on May 2 with Rasikh describing the meticulous planning that went into the setup: “We wanted to make sure we were prepped safety-wise, with mechanisms in place such as marshalling teams, police liaisons, and legal observers to handle any potential confrontations.”

The encampment was timed strategically. “We timed it so that we could potentially use the convocation as a leverage point for negotiations, ensuring that every graduate and their families would see the encampment and understand the university’s complicity in war crimes,” Rasikh explained​.

U of T’s response

From the outset, the university administration took measures to contain the encampment. On May 2, the university sent out a communication stating that setting tents up and camping were a violation of school policy, and also issued a trespass notice. Despite these efforts, students breached the fence and established the encampment. 

On April 28, Vice-Provost Sandy Welsh reminded students of the university’s policies on free expression and protest. “Freedom of expression is central to the University of Toronto’s mission of learning and discovery,” Welsh stated. However, she also described the boundaries of these rights, emphasizing that “actions that create a health and safety risk, that interfere with the ability of students, faculty, librarians, and staff to learn, teach, research and work on our campuses, or that disrupt or impede other university activities are not permitted.”

As the encampment persisted, the university administration intensified their measures. The administration issued formal notices and continued to emphasize health and safety concerns. A statement from the administration read, “U of T’s lands and buildings are private property, though the university allows wide public access to them for authorized activities. Unauthorized activities such as encampments or the occupation of university buildings are considered trespassing.”

On May 2, Sandy Welsh sent an online statement to protestors, reiterating the university’s expectations for lawful protest. “Protesting will not be permitted after 10 p.m.,” Welsh stated. “Actions must not disrupt scheduled university activities. No structures of any sort — tents, shelters, etc. — may be erected.” 

Following the initial communication, the administration observed that the encampment continued to grow. On May 3, Welsh sent another message to protest organizers: “The university has a duty of care to our students, faculty, librarians, and staff. We have significant concerns regarding the lack of fire safety access that occurred last night when protesters blocked passage on the paved ring around front campus.”

Throughout these developments, the student protesters remained resolute, feeling that their right to peaceful assembly was being undermined by the university’s actions. Rasikh said that the administration’s approach was inconsistent and often more focused on managing the university’s reputation than addressing the students’ demands. “They cited health and safety concerns publicly but privately communicated that they wouldn’t take any severe actions against us,” Rasikh noted. “It was a lot of back and forth, which made it clear they were more concerned about their image than our actual safety.”

The administration issued a formal Notice of Trespass to the encampment participants. “If the encampment participants do not vacate the front campus at King’s College Circle by Monday May 27 at 8 a.m., the university will pursue all necessary legal steps,” read the notice. 

Following the expiry of the trespass notice deadline, the university sought an injunction from the Ontario Superior Court of Justice. The legal filings emphasized the university’s need to restore access to the front campus and prevent further disruption to university operations. The administration’s statement during this period reiterated, “The encampment must end to preserve the university’s responsibility to uphold the rights of all community members to assemble and protest peacefully in accordance with U of T policies and the law.”

Legal action

The court’s decision to grant the injunction was based on several key points. First, the university needed to establish a strong prima facie case for the injunction based on the legal principles of trespass and ejectment. The court noted that while there was no strong prima facie case related to violence or the antisemitic nature of the expressions used within the encampment, the university did demonstrate a strong prima facie case for trespass.

Secondly, the court balanced the convenience test, comparing the harm to the respondents if the injunction was granted against the harm to the university if it was not granted. The court concluded that the harm to the university was greater if the injunction was not granted, as the encampment had taken away the university’s ability to control what occurs on front campus, which was considered irreparable harm​.

Lastly, the court addressed the issue of freedom of expression. While the injunction would limit certain protest activities, it would still allow the protesters to demonstrate throughout the campus, just not in a manner that involved camping, erecting structures, blocking entrances, or protesting during specific hours. This was deemed a reasonable balance between the protesters’ rights and the university’s responsibility to maintain campus order and functionality.

The judge Markus Koehnen noted that while the protesters had the right to demonstrate, this did not extend to occupying and controlling university property indefinitely. The court order mandated the dismantling of the encampment by July 3. 

The judge’s ruling specifically allowed for the continuation of protests on campus, provided they did not involve camping or erecting structures, and were confined to certain hours. The court noted, “The injunction sought by the university did not infringe on the protesters’ right to freedom of expression because they continue to have the right to protest anywhere on campus between 7 a.m. and 11 p.m.”

The university was clear in its stance that the primary issue was not the expression of views but the occupation of university property. The ruling underscored the necessity of balancing the protesters’ rights with the university’s responsibility to maintain an accessible and functional campus for all​.

“The court ruling was disappointing but not surprising,” Rasikh remarked. “Ultimately, the injunction did, or the ruling, rather, did acknowledge that our encampment is not hateful, nor that it’s violent.” 

Dismantlement

The dismantlement of the encampment marked the end of one chapter in the students’ protest, but it did not signal the end of their activism. The protestors, while complying with the court order, made it clear that their demands and their commitment to the cause remained unwavering. Rasikh highlighted that the legal battle, while a setback, had brought more attention to their cause.

“We decided to decamp because the police brutalizes,” Rasikh explained. The decision to comply with the court order was strategic, aimed at preserving the momentum and safety of the movement without escalating into violence.

The case highlighted the delicate balance between the right to protest and property rights, as well as the complexities involved in navigating legal and administrative responses to activism within academic institutions. The ruling underscored that while freedom of expression and peaceful assembly are protected under the Canadian Charter of Rights and Freedoms, these rights are not absolute, especially when they come into conflict with the property rights and operational needs of an institution like a university.