By Andrew Roman, June 27, 2024
Many Canadians oppose the high-profile campus occupations that have taken root at universities across the country as well as in the United States in recent weeks. While purportedly advocating for the rights of Palestinians in Gaza, the protests have been marked by a particularly virulent and nasty strain of antisemitism against Canadian Jews.
Consider the so-called peaceful protest that embedded itself at McGill University in April. After weeks of disruption, the pro-Palestinian “activists” and “demonstrators” stormed into a university administrative building, barricaded the entrances, and then trashed the interior. Like other pro-Palestine campus agitators, the McGill occupiers had issued “non-negotiable” demands that their alma mater abolish exchanges with Israeli academics and divest from companies with links to Israel in return for the end of the occupation.
All the while, Jewish students, faculty, and staff across the country are left to wonder – who is protecting their right to study and work on campus? The professed point of these demands was to support the Palestinians in Gaza, although they often involved threatening and intimidating third-generation Canadian Jewish students who had no connection with or influence over the government in Israel. Their only “sin” was being Jewish.
Beyond the campuses, protestors have targeted sites in Canada completely unrelated to the Government of Israel – for example, by blocking the entrance to Toronto’s Mount Sinai Hospital. While the hospital bears a Jewish name, it serves a fully diverse public and employs a likewise diverse staff.
The protesters have also targeted Canadian politicians in increasingly aggressive ways. For instance, in March, protestors successfully forced the cancelation of a meeting between Prime Minister Justin Trudeau and the Italian prime minister by blocking the entrance to the building where the meeting was to be held. As neither prime minister has any control over the Israeli government, the only point of this blockade was to show the world how powerful this group has become in Canada.
Everywhere the activists strike, they issue a common refrain – they are simply acting within their constitutional rights to protest. But are they?
Constitutional rights and wrongs
The Canadian Charter of Rights and Freedoms protects freedom of expression and of assembly. However, the Charter applies to government action, and universities are not government, so it is uncertain whether it applies at all. And in any event, Charter rights are not unlimited. They are subject to the Criminal Code, human rights legislation, and other laws of general application.
Charter rights must also be considered in the context of the rule of law. The rule of law means that all individuals and institutions are subject to the same laws. It is sometimes stated as “no one is above the law” – not even self-appointed protesters.
But the laws governing limits to freedom of expression and assembly are, in practice, largely unenforced by either injunctions or timely police action. That’s because courts are reluctant to issue injunctions unless they are confident that the injunction will be respected. And the police are reluctant to act without an injunction (and sometimes, even to enforce an injunction) because they know that when they are accused of suppressing constitutional rights the politicians won’t stand behind them. This lack of enforcement permits lawless groups to anoint themselves “protesters” and then hide behind the Charter, effectively placing themselves above the law.
Intimidating anyone, including Jewish students, staff, and faculty on a university campus, is a Criminal Code offence, not a constitutionally protected right. It may also be a hate crime and an offence under federal and provincial human rights codes.
Among other activities, the Criminal Code prohibits: public incitement of hatred that is likely to lead to a “breach of the peace,” as well as incitement of hatred against an “identifiable group;” also, “mischief,” such as the wilful destruction of property, or even the obstruction of the lawful use of property; and intimidation “for the purpose of compelling another person to abstain from doing anything that he or she has a lawful right to do.” This includes threats of violence to a person or their property.
Section 64 of the Criminal Code also prohibits riots. Defined as an unlawful assembly that has become “tumultuous” and “disruptive to the peace,” this label can likely be applied to antisemitic university occupations and hospital blockades, and other such disruptions.
The case law is vague
The Criminal Code clearly lays out a host of restrictions on the right to protest. So why does it seem so vague in practice, and the enforcement so haphazard?
Recent judicial decisions, reports and comments have dealt with the criminal law issues raised by protests. All of them say that the people affected should expect some degree of disruption. But they don’t explain how much of what kind of disruption is too much.
Legitimate protests serve as a form of advocacy, aiming to exert pressure on the target as a means of persuasion. However, they often inflict a high degree of “collateral damage” on the target’s uninvolved neighbours. Where should a democratic society draw the line? Or will we continue to have no clear line?
The Criminal Code, although applicable, is a blunt instrument for managing protests. Police are reluctant to arrest and charge protesters as criminals, especially if, as with the 2022 Freedom Convoy, many officers are sympathetic to the protesters. And, as the police get to know and become comfortable with the participants – as happened with the Freedom Convoy, where some officers posed for selfies with protesters and brought them coffee – it becomes less likely that the encampments will be broken up with force. Likewise, the longer a university negotiates with an encampment, the less likely the court is to see it as an emergency requiring an immediate injunction.
A New Law is Needed
So, what’s the answer? It’s a new law – one that better defines the boundaries of legally acceptable protest, provides necessary guidance for judges when considering whether to issue injunctions, and more clearly defines for police when force is appropriate when breaking up an occupation. Canada needs protest-specific federal and provincial legislation that provides clear rules that distinguish between acceptably disruptive, short-term protests, and quasi-permanent illegal encampments that use intimidation and even violence to frighten the public and incite hatred on our streets.
The Criminal Code is a blunt instrument. Having a criminal record may make it difficult to obtain employment, among other effects. That’s why the police and courts are reluctant to impose the criminal law on the somewhat immature adolescent students at universities.
Let’s not be naïve – follow the money
Over the past few months, Canadians have been rightfully concerned about foreign interference in our elections. They should also be equally concerned about foreign interference at our universities.
It takes time and money to organize mass protests and occupations. And yet, “spontaneous” protests sprung up across Canada and the United States only a day after the October 7, 2023, Hamas terror attacks that saw 1,200 people in Israel massacred and another 250 taken hostage.
The mass protests and encampments were well planned and financed. And so, we need to follow the money: who is financing, organizing, and encouraging the intimidation taking place on university campuses? Who is encouraging masked bullies to surround the homes of university administrators, and in the US, the homes of university presidents? Who is inciting the hooligans who vandalize Jewish-owned bookstores, or shoot up Jewish schools and businesses? Aided by modern social media, these “spontaneous” grassroots protests are anything but.
When legitimate protests become occupations or blockades, and particularly, when they engage in intimidation on the basis of religion, they cross the line into criminal conduct. But such conduct is still too often tolerated by the courts and the police. New legislation that creates clear rules for protests, without the career-limiting stigma of criminal conviction, would be a useful tool, not only for judges and the police, but for anyone planning a just and reasonable protest. But absent such a new law, let’s at least enforce the laws we have.
Andrew Roman is a recently retired lawyer with a half-century of national law practice. He has appeared as legal counsel before numerous administrative tribunals and at all levels of court in most provinces of Canada and in the Supreme Court of Canada. Roman has taught as an adjunct faculty member at four Canadian law schools and is the author of more than 90 published articles and a book. He has contributed to the Financial Post, the Macdonald-Laurier Institute, and the Fraser Institute, and posts regularly on his blog, https://andrewromanviews.blog/.
