Jul 5, 2024
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On July 2, 2024, the Ontario Superior Court granted an injunction to the University of Toronto to remove a protest encampment organized by UofT Occupy for Palestine from its Front Campus. It did so by relying on well-established jurisprudence about trespass and private property.

In balancing the rights of the University and those of the protestors, the Court rejected the propositions that campus property is of a “special” nature and that the Charter applies to the University in this context, concluding that free speech is no defense to “trespass. Despite this finding, the decision is nonetheless significant as the Court rejected characterizations of the protestors as violent and discriminatory, establishing important protections to Palestine solidarity protest and speech.



On May 2, a diverse group of students, faculty. and staff set up a protest encampment on the grass of the University of Toronto’s Front Campus. In so doing, they joined a global movement demanding that universities urgently cease any material or institutional support of the Israeli military, given its ongoing operations in Gaza that international organizations have described as apartheid, ethnic cleansing, and genocide. Organized through a group called UofT Occupy for Palestine, protestors demanded that the University publicly disclose its investments, divest from all holdings that directly or indirectly sustain the illegal settlement of Palestine, and terminate all partnerships with Israeli academic institutions that operate in the Occupied Palestinian Territories.

Some protestors highlighted an urgency to act because their own families were touched by the violence and deprivation in the region; others were allies who felt a responsibility to ensure that their academic institution did not profit from violations of international law using their tuition dollars. The encampment demonstrated, through its peaceful physical presence on campus, the wide-ranging and multi-faith support for the demand to end what the protestors describe as the University’s complicity in an ongoing genocide.


The University’s Application for an Injunction

In late May, despite extensive and ongoing negotiations between the University and UofT Occupy for Palestine, the University applied to the Superior Court for an injunction to end the encampment and authorize police to remove the protestors. The University argued that the protestors had trespassed and taken over University property in a manner that contributed to violence and antisemitic incidents on campus.

The protestors contested this characterization, arguing that equating legitimate criticism of Israeli state policy and support for Palestinian liberation with violence and antisemitism is dangerous to free speech and an example of anti-Palestinian racism. Contrary to these assertions, the encampment had consistently been a safe space for Palestinian and Jewish students alike, with a zero-tolerance policy for violence and discrimination. The students also submitted that the encampment’s visibility and location were vital to its message, stressing the historical importance of universities as sites of public debate and social change.


The Decision

On July 2, the Ontario Superior Court issued a decision and an accompanying order  granting the interlocutory injunction requested by the University. Protestors were given just over a day to dismantle all tents and structures at the encampment and vacate Front Campus. Police were authorized to remove and arrest any person found in violation of the order after 6PM on July 3.

Though the Court maintained that protestors remained free to engage in “peaceful, lawful, and safe protests” on University property, such demonstrations were subject to the conditions that:

  • They do not block access to any University of Toronto property, including roadways approaching the University;
  • They do not erect structures;
  • They do not occur between 11 PM and 7 AM, and;
  • They are held in accordance with the University’s policies on the Disruption of Meetings and Temporary Use of Space

In delivering his order, Justice Koehnen acknowledged that “almost all social progress has its origins in some form of protest” (para 210). He framed the injunction as marking the end of the first step in the long process of effecting change: having successfully drawn national attention to an issue of importance to them, the Court encouraged the protestors to now attempt to persuade the University and its stakeholders to divest using “their own language” (para 216)


The Court’s Reasoning

Balancing of rights

The University succeeded in its application against the protestors by relying on the principles of private property and trespass. While an injunction order would severely curtail the protestors’ rights to free expression and assembly, the University argued that it, too, was deprived of its own right to use Front Campus due to the presence of the encampment. The decision to grant the injunction hinged on the balancing of these rights.

Crucial to this analysis was the question of whether the Charter right to freedom of expression applies on university campuses. On this point, counsel for the students and several intervenors pointed to an emerging consensus across Canada that universities, despite being private entities, are bound by the Charter when regulating speech. This conclusion was supported by the fact that the Ontario government requires universities to implement a policy protecting free speech on campus, and it follows that a policy mandated by a provincial government must be Charter-compliant. Furthermore, Front Campus is a “quad” – it is, by design, a “quasi-public space with a particular commitment to free speech and freedom of assembly” (para 188).

The court, relying on a 2012 Ontario Court of Appeal decision, concluded that the University was not bound by the Charter, but rather by its own internal policies and “values that are directionally consistent with the Charter” (para 189). In other words, while the University may not be subject to the Charter, it must nonetheless protect and foster free expression.

The Court agreed that the University campus has a quasi-public nature, however it did not engage with the implications that this proposition might have on the rights of the University as a property owner. It went on to apply the common law tort of trespass, which exists to protect private property. Based on the conclusion that the occupation constituted trespass, and that trespass could not be protected by the law, the University’s property rights were found to supersede the protestors’ freedom of expression.

The Court made this finding despite an acknowledgment by the University that its institutional purpose is to foster and protect freedom of speech and to act as a site to explore critical questions and challenges to both the University itself and societal beliefs at large. In so doing, it missed a valuable opportunity to clarify and develop the legal duties that may entail such an institutional purpose.


The Court accepted that the protestors were peaceful and non-discriminatory

Throughout its decision, the Court repeatedly rejected allegations of violence advanced by the University, finding that they were largely unsubstantiated or misleading. The University had incorrectly attributed isolated violent incidents – some occurring miles away from the encampment – with the protestors. The encampment, the Court found, was operated peacefully and in good faith.

 On the issue of antisemitism, the Court found that that the alleged instances of hate speech identified by the University had taken place outside of the encampment and could not be attributed to the encampment or its participants. The encampment participants were proactive in opposing and removing any hateful speech taking place near the encampment, consistent with their zero-tolerance policy for discrimination. The decision also recognized that the students themselves had been victims of hate speech from dissenters and counter-protestors.

Importantly, Justice Koehnen acknowledged that the ongoing “moral panic” (para 74) surrounding the events in the Middle East has led to unfair charges of “antisemitism” and significant personal and professional consequences for individuals voicing objection to the policies and actions of the Israeli government. Justice Koehnen considered slogans and symbols used by the protestors, such as “from the river to the sea,” “glory to the martyrs,” “intifada,” “blood on your hands,” and the inverted red triangle symbol, and found that the “automatic conclusion” that they were antisemitic was “not justified” (para 106).  Any conclusion to the contrary was likely “the product of a misunderstanding between two cultural divides” (para 108) or the “result of attributing malevolent intentions to the speakers when there is no such intention” (para 107).

The recognition and naming of anti-Palestinian racism was another important result of this decision. In its intervening to the Court, the Arab Canadian Lawyers Association defined anti-Palestinian racism as distinct from Islamophobia and consisting of the stereotyping, vilification, intimidation, marginalization, and institutional bias against Palestinians and individuals who advocate for Palestinian rights. Justice Koehnen considered this specific form of racism, as well as the role it played in the allegations of hate speech and violence levelled at the protestors.



Ultimately, the balancing at issue in the Court’s decision was not the University’s right to use its property versus the protestors’ right to free expression, but rather, versus the protestors’ right to occupy the University’s property. The fact that the protest occupation was inextricable from the expression itself – being the very reason that the protest had garnered widespread attention and compelled the University to negotiate – was rejected. In separating the expression from the protestor’s physical use of the space, the Court concluded that the inevitable result was that the University as property owner – unencumbered by the obligation to compromise or negotiate – remained at liberty to govern and control the use of its property through the application of its internal policies. 

Although the Court’s finding and analysis with respect to private property rights are not unexpected, the Court’s conclusion that there was “no evidence” (para 7) to suggest that the encampment participants or the named respondents had engaged in any acts of antisemitism, racism, violence, hate speech, or vandalism marks an important judicial finding which pushes back against the normative framing of Palestinians and their allies as inherently violent and not credible. The decision also highlighted the ways in which individuals have faced inappropriate scrutiny for expressing solidarity for Palestinian human rights and opposition to Israeli governmental policy, referring in particular to the recent findings arising out of Toronto Metropolitan University. The Court engaged throughout the hearing with the intentions and demands of the protestors, as well as the importance of expression on university campuses, affirming all the while that the respondents were motivated by a laudable opposition to immense human suffering.  The Court’s findings and analysis are important contributions to an ongoing international conversation as similar protest encampments continue to take place on university campuses across North America.  

**Special thanks to summer student Hina Rani for her work in drafting this post.


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