Opinion: The U of T occupation was illegal. Why? Because it was an occupation

Two months ago, I wrote a column with this headline: “The campus occupations aren’t protected by free speech, because they aren’t speech.”

Two months later, Ontario Superior Court Justice Markus Koehnen said as much when he issued an injunction against an encampment that had occupied the centre of the University of Toronto’s downtown campus since May 2.

The university’s request for an injunction was granted not because of the pro-Palestinian protestors’ ideas, beliefs or words. It’s not about what they said. It’s about what they did – namely taking over a space, denying its use to others, policing entry, erecting a tent city and pledging to remain until their demands were met.

Justice Koehnen’s July 2 ruling is a civics lesson. It’s a reminder of the liberal principles that underpin our society and our laws, and which make it possible for people with starkly different views to share a country, living together in peaceful disagreement.

Canadian law offers exceptionally broad protections for freedom of assembly, association and expression. But the encampment’s lawyers were unable to point to “a single case in which a court has allowed someone to appropriate private or public property for a prolonged period of time to exercise their rights of freedom of expression,” wrote Justice Koehnen. “On the contrary, courts have found exactly the opposite.”

The protestors, operating under the name U of T Occupy for Palestine, don’t need better lawyers. The problem is the verb in the middle of their name.

“The protesters’ conduct is inconsistent with freedom of expression,” wrote the judge. Not protected by freedom of expression – inconsistent with it.

An occupation is also inconsistent with property rights, the rule of law, a liberal society and peace, order and good government. Again: none of this has anything to do with whether you support, oppose or are indifferent to the protestors’ ideas or words. The same goes for the 2022 Freedom Convoy movement that blocked roads in Ottawa and other locations.

“As passionate as the protesters may be about their cause, they do not have the unilateral right to decide how Front Campus can be used by their exercise of force, occupation or intimidation,” wrote the judge.

“If it is not the owner who gets to determine what happens on the property it will become a brutal free-for-all. If protesters can just take Front Campus, nothing prevents a stronger group from coming along and forcibly taking it over from the current protest group for another cause or a counter protest.”

The protestors argued that the lawn at U of T is public rather than private property, and that somehow made it okay for them to appropriate it. Justice Koehnen said the distinction makes no difference.

During the encampment, “the only people who are allowed onto Front Campus are those who agree with (or at least who do not openly disagree with) the protesters’ beliefs,” he wrote. “If the property truly is a quasi-public space, why should one ad hoc group of people get to determine who can use that space for a period of over 50 days?”

The injunction prevents camping and erecting structures, or protesting between 11 p.m. and 7 a.m. U of T Occupy for Palestine remains free to hold demonstrations.

And so, before the Wednesday evening deadline imposed by the injunction, that’s what the group did. It ended the encampment and started a protest march.

In a post on X, U of T Occupy wrote that the cops were surely “foaming at the mouth to unleash your violence,” but “we refuse to give the Toronto Police Service any opportunity to brutalize us, as they have done repeatedly since October to pro-Palestinian protestors across the GTA. We are leaving on our terms to protect our community from the violence that the University of Toronto has been eager to unleash upon us.”

In recent weeks, the occupation organizers’ social media has called police “pigs,” whose “purpose is violence.” It has also on more than one occasion referred to police by a vulgar acronym that can’t be printed in this newspaper. They have called “kkkanada” an illegitimate “settler colony.” On Thursday, they wrote that U of T being granted an injunction means that “the masks have come off, and the true face of settler-colonial western institutions has been revealed.”

Writing such things, and believing them, takes many years of advanced education.

This being actual Canada, not the Marxist bedtime-story version, helpful police officers in bike shorts were there on Wednesday evening to assist and enable the protest, as they have assisted and enabled scores of pro-Palestinian protests since last fall, by blocking streets to car traffic.

A couple of hundred flag-waving and slogan-chanting protestors paraded up St. George Street. Those who wanted to join in did. Everyone else went about their day.