By clearing protest encampments, universities put property over people

An Ontario court is set to hear the University of Toronto’s application for an injunction to clear a pro-Palestinian protest encampment on campus. York University recently joined Université Laval and the universities of Calgary and Alberta in using police to clear a campus protest encampment. On the basis of a notice issued under Ontario’s trespass law, Toronto police dismantled the York Popular University for Palestine encampment less than 24 hours after its establishment, arresting one student.

Students at universities across Canada have set up protest encampments on campuses in recent months, calling on their institutions to cut ties with and divest from assets and companies associated with Israel. Some universities have responded punitively to the protests, calling in the police to clear encampments.

To date, three Canadian universities — McGill University, the University of Toronto (U of T) and the Université du Québec à Montréal (UQAM) — have applied for court orders compelling police to remove or restrain encampments. Four others — York, Calgary, Alberta and Laval — have cleared encampments without the use of injunctions.

Canadian universities’ requests for court orders and police enforcement to clear Palestine solidarity encampments raise questions about the legal status of university encampments and the use of injunctions.

What’s an injunction?

Injunctions are orders issued by superior courts requiring people to refrain from specified actions (or more rarely, to carry out specific actions) for a specified period of time.

When sought to end protests, injunctions often prohibit people from blocking roads or other access points. They may be issued against anonymous participants (John and Jane Doe), as well as named defendants known to the person or institution seeking the injunction.

Injunctions are a civil remedy, but they are generally enforced by police and alleged breaches are prosecuted criminally under the criminal code or as common law contempt of court.

As private property holders, universities can also make use of trespass laws or municipal bylaws, and as long as police are willing to intervene, do not necessarily need injunctions to clear encampments.

But for embattled university administrators, the value of obtaining a court order that professes to balance the rights of protesters with the interests of universities is that it can give a veneer of legitimacy to future removals of students from campuses.

Private-public partnership

In the context of Indigenous protests and land defence, I have previously described this dynamic as an “absurd public-private partnership between the state and extractive industries.” A similar dynamic is now at play on campuses. Universities are seeking to use the courts to authorize — and legitimize — the use of force against student encampments.

To date, only UQAM has successfully done so, and the administration’s application did not seek the complete dismantling of the student encampment. Granted in late May, UQAM’s injunction created a buffer zone around university buildings and mandated fire department access. However, the encampment remained in place until a negotiated resolution on disclosure and divestment was reached with students.

After unsuccessfully appealing to the Montréal police to clear its student encampment, McGill’s initial request for an injunction was rejected for lack of urgency in mid-May. A further application will not be heard until late July.

U of T applied for an injunction in hopes of clearing the People’s Circle for Palestine before convocation ceremonies began on June 3. However, after a lengthy scheduling hearing involving 18 would-be interveners (among the interested groups — advocating for and against the application — were civil liberties organizations, Jewish, Muslim and Arab groups, and several unions), a judge scheduled the hearing for late June.

It may be tempting to read the universities’ relative lack of success in the courts as a victory, but such optimism relies on an unwarranted confidence in the appropriate exercise of discretion on the part of police. And it is premature, given McGill and U of T could still obtain injunctions.

Policing campus protests

York University’s willingness to call in the police to eject student protesters under the guise of safety came despite a public statement that the “university will be seeking to establish a dialogue” with encampment organizers. That echoed events at the two Alberta universities several weeks earlier. The violent clearing of encampments at the universities of Calgary and Alberta had been carried out by police in riot gear wielding batons and “special munitions” and resulted in several arrests.

When asked why the Toronto Police had acceded to York University’s request to enforce the trespass notice after refusing to do so at U of T, a spokesperson told the Toronto Star that the “timing and circumstances” were different at the two campuses, citing York’s quick response as opposed to U of T’s three weeks of acquiescence.

In other words, it appears operational discretion remains central to protest policing, even on a campus where the presence of municipal police forces is meant to be limited.

Privileging property over people

There is an emerging consensus among constitutional scholars that the Canadian Charter of Rights and Freedoms protects political expression, including encampments on university campuses.

The use of force at Calgary and Alberta amid “the absence of meaningful engagement” with students was rightly condemned by members of the law faculties at both universities, among others. But a focus on rights obscures the issue of property rights at play.

Trespass notices and injunctions rely on seeing university campuses as private property. Their use by university administrators, and enforcement by police, are the latest examples in a long history of such legal tools being used to police and penalize organized labour and Indigenous movements.

Injunctions remain a common way for employers to discipline picketing, even during lawful strikes. As vividly demonstrated by the Wet'suwet'en nation’s resistance to Coastal GasLink, injunctions are also the go-to remedy for corporations looking to push pipelines or other projects through Indigenous territories, with a resounding success rate in the courts.

Challenging the criminalization and legal regulation of encampments also means challenging the notions of private property that underlie the repression of collective action. It is this singular characterization of campuses that paves the way for injunction applications and trespass notices by universities and incentivizes policing over negotiation. Yet, it is a characterization that ignores the role of campuses as community spaces and places for political discourse.

Universities are fundamentally common properties — places closer to public resources than private compounds. Seeing them in this way highlights the injustice of repression and illegitimacy of even judicially approved force against encampments.

This article is republished from The Conversation, a nonprofit, independent news organisation bringing you facts and trustworthy analysis to help you make sense of our complex world. It was written by: Irina Ceric, University of Windsor

Read more:

Irina Ceric receives funding from SSHRC. She is a Board Member of the Community Justice Collective (Toronto) and the Canadian Law and Society Association.