Lawyers for University of Toronto encampment argue free speech in court

Lawyers representing members of the pro-Palestinian encampment at the University of Toronto argued in court Thursday that attempts to dismantle the protest infringe upon the free-expression rights of protesters and violate the institution’s purpose as a centre of debate.

In a hearing before the Ontario Superior Court, lawyers for members of the encampment urged Justice Markus Koehnen to reject the university’s application for an injunction that would authorize police to clear the protest, which has occupied the school’s King’s College Circle for more than six weeks.

The university issued a notice of trespass to the encampment last month but protesters, who have been demanding the university disclose its investments, divest from companies connected weapons manufacturing and break ties with some Israeli universities, have remained in place.

Jackie Esmonde, a lawyer who represents several encampment organizers, said the university identifies freedom of expression as its institutional purpose and that protecting political expression is crucial in a free and democratic society.

Ms. Esmonde said the encampment is part of an international movement seeking to draw attention to the war in Gaza. She added that the form of protest it has taken, an encampment in view of the Simcoe Hall administration building, is key to its message.

University of Toronto tells court hearing that encampment restricts liberty and expression

She conceded that the protest has been disruptive, but urged the court to see university property in a different light than a typical private property owner. King’s College Circle, where the protest is located, is a green space at the heart of campus that’s normally open to the public.

It’s similar to a public park where free discourse can occur, even if that discourse makes others uncomfortable, she said.

“I would suggest if one doesn’t feel uncomfortable at university, you’re not getting a very good education,” Ms. Esmonde said.

The university’s lawyers argued earlier this week that the encampment is a clear case of trespassing. It said members of the encampment operate a gate 24 hours a day where they stop and screen anyone who wants to enter the area, and exclude anyone before 11 a.m. They raised questions about whether those who disagree with the encampment’s ideological position are actually allowed inside, and said the gate amounts to a restriction on speech.

Encampment lawyers said the gate-entry process is intended to screen those who might pose a safety risk to those inside but that they err on the side of allowing people in.

The university administration has said that it objects to one group taking over a portion of campus intended for the use and enjoyment of everyone. It has said that it’s pursuing this case, which would dismantle a protest, in order to preserve the right to protest and debate for the entire campus.

Mae Nam, who represents encampment organizer Sara Rasikh, was asked by Justice Koehnen at what point a court should intervene in a situation like this, citing a hypothetical example of a protest demanding an end to vaccine research.

Ms. Nam said the facts of the case are paramount.

The U of T administration contends that the encampment has brought harm to campus in the form of discriminatory and offensive speech, has disrupted events, poses a safety hazard and is hurting the university’s reputation.

The lawyers for the encampment members disputed those assertions, which they called exaggerated.

Ms. Nam said campuses have always been a magnet for pressing social issues.

“It’s much more than an encampment. It’s the very soul of the academy at stake,” Ms. Nam said.

Earlier this week, U of T president Meric Gertler said the university had resumed negotiations with the encampment, saying it was pursuing parallel paths of dialogue and legal action. The encampment leaders made an offer earlier this week to dissolve the camp in exchange for certain concessions and the university has responded with a counteroffer.

Justice Koehnen said he would consider his ruling over the next several days and would likely have it next week.