Juno News - Police crack down on U of T’s pro-Palestine encampment

00:00:00.000 I want to go into a bit more of a newsy topic here. Yesterday, the injunction that the University

00:00:14.520 of Toronto sought to dismantle the anti-Israel encampment on campus was granted. And this means

00:00:21.260 that as of today, police are going to be moving in. They've said they plan on enforcing this

00:00:26.400 injunction. I want to talk about this from a constitutional liberty perspective here and

00:00:31.300 also the broader implications. Josh Tahaz returns to the show. He's a lawyer with the Canadian

00:00:36.100 Constitution Foundation and one of the hosts of their tremendous podcast, digging into many of

00:00:40.960 these issues. Josh, good to talk to you as always. Thanks for coming on. Great to be here. Thanks,

00:00:45.580 Andrew. Let me just start with the first, you know, the glaring question here of why an injunction was

00:00:50.800 even necessary when you had what, I mean, at its core was a trespassing issue. Like, you know,

00:00:56.120 presumably if someone were to set up a camp on my front lawn, I could call the police without going

00:01:00.500 to a judge and say, please remove them. Why did it need to go to this stage? Yeah, so it's a good

00:01:06.400 question. It's a question we've been getting a lot because, you know, police can't enforce trespass

00:01:11.640 laws. And this was very clearly a trespass from the beginning. You know, trespass just means going

00:01:17.880 onto somebody's property without lawful justification. And there's an old English case that says merely

00:01:24.260 bruising the grass is going to count as trespass. So what you had here was people, you know, deciding

00:01:31.020 who was allowed to go into this space on campus, right in the center of the University of Toronto.

00:01:38.020 And you have to, you know, pass a series of questions to sort of get into this encampment.

00:01:42.380 So it was just quite obvious it was a trespass. And, you know, in York University in Toronto,

00:01:47.760 as you well know, Andrew, police just went in and enforced the law against trespass the day the

00:01:54.120 encampment was set up. So what I think happened here was basically U of T decided that they were going

00:02:00.200 to negotiate and that they were going to let this camp encampment sort of fester for at least a short

00:02:07.680 period of time before they decided to, you know, seek legal action. And the protesters had an argument,

00:02:14.060 which was essentially that they have freedom of expression rights protected by the Constitution,

00:02:19.680 freedom of assembly rights to use this otherwise private property at U of T. And they had just a

00:02:26.420 little tiny bit of an argument, which was that this free speech directive that Doug Ford had put in

00:02:32.980 place in 2018 somehow meant that after decades of law in Ontario saying the charter doesn't apply to

00:02:41.180 these types of university actions that all of a sudden the government had decided that they wanted

00:02:46.220 to apply. So I think Toronto police looked at that and they said, okay, there's some legal uncertainty

00:02:50.980 here. And you have law professors out there sort of siding with the protesters saying this directive

00:02:56.480 means that now the charter does apply to campus. And just based on that legal uncertainty, I think

00:03:01.640 they probably had advice to wait and see, wait and see what happens with the, with the court case.

00:03:07.320 And not all that surprisingly, the injunction has been granted.

00:03:12.360 Just as an aside, I think it's a bit rich that these protesters, many of whom have called for,

00:03:17.380 you know, any professor associated with Israel to, you know, be sent to the gulag are all of a sudden

00:03:22.620 these newfound defenders of academic freedom.

00:03:25.960 Yeah. And a lot of these people are the same people who, you know, they would have canceled just

00:03:30.340 about anybody involved with the trucker protest if they'd tried to speak on campus a few years ago.

00:03:35.480 Um, you know, they've, I remember there were, if there was any talk about race or gender that

00:03:40.040 didn't align with, uh, sort of progressive, uh, shibboleths, they would go on campus and pull

00:03:46.180 the fire alarms and try and get people, uh, try and get their expression shut down. So

00:03:51.780 yeah. But all of a sudden Doug Ford's free speech directive might not be such a bad idea for them.

00:03:56.520 Yeah. Does it, from a legal perspective, does it have any bearing at all on whether they are

00:04:02.420 students or faculty who generally have, I think, a right to use the campus?

00:04:09.040 Um, from a constitutional perspective, I don't think it has really any bearing on it at all,

00:04:14.580 but a lot of this case was decided based on University of Toronto's own policies and they

00:04:21.000 have, you know, use of space policies and speech policies. And I think under those policies,

00:04:26.160 they are, uh, going to, uh, you know, they, they care a lot more about what professors and students

00:04:33.140 are doing because that's part of their mission. Right. So under those policies, they, it might

00:04:38.300 matter that they're students or that they're professors, but, um, from a general constitutional

00:04:42.980 law perspective, it doesn't really matter all that much. And frankly, the respondents in this case,

00:04:48.560 I think most of them, if not all of them were students.

00:04:52.220 Have we gotten to a point or I, I, maybe this is a stupid question because it sounds self-evidence

00:04:57.800 as I'm formulating in my head, but I was going to, what I was going to ask is, are these policies

00:05:01.760 just so far from being content neutral in that, like the way these things are enforced in any

00:05:07.880 academic freedom context, in any public assembly context on campus depends entirely on the specific

00:05:14.100 expression and rather the fundamentals.

00:05:16.060 I think that was certainly the case, uh, up until fairly recently, but I think the whole

00:05:22.260 debate about expression and academic freedom on campus that arose after October 7th really

00:05:28.960 woke a lot of people up on the sort of the progressive left who tend to be the people enforcing

00:05:34.340 these policies that they need to be a little bit more principled about these things. So I think

00:05:40.260 that's sort of the silver lining here is that, you know, if you go back three years, five years,

00:05:45.660 there was a lot of shutting down of legitimate speech and legitimate academic research and lectures

00:05:52.980 on campus. And I think we're going to see less of that hopefully going forward, because I think people

00:05:58.060 might've learned their lesson this time around that, um, it's not just, um, you know, right-wing voices that,

00:06:05.540 uh, are being canceled, but also that sometimes there are, you know, pro-Palestinian voices that are

00:06:11.480 more closely associated with the left that get canceled and that we want to have the same rule

00:06:16.380 for everybody so that we can, so that rule will be there when we, when we need it.

00:06:22.100 Obviously a police, I mean, well, like we saw with the freedom convoy, police were really trying to get

00:06:26.620 people to just leave on their own volition and it didn't really work too well. Uh, they're trying to do

00:06:31.380 the same thing here, but the protesters have basically said they, you know, have no interest

00:06:36.260 in, in, you know, packing up and going home in a lot of cases. And there's always the possibility that

00:06:40.980 something like this is the Streisand effect where now more people will descend on it. So, uh, this could

00:06:46.020 be very messy as things go on. If someone doesn't leave, you know, what, what, what are they facing

00:06:51.780 right now? Is it the, you know, $70 trespassing ticket? Uh, I think it's more serious than that,

00:06:57.620 to be honest. So, uh, if people don't leave and I, I noticed there was a union, QP Ontario,

00:07:03.540 that's encouraging people to go down at 3 30 this afternoon and join the protest. And, you know,

00:07:09.300 this was the union whose head Fred Hahn famously said he was going to use his own body to, you know,

00:07:15.220 stop, um, this protest from getting shut down. And if the deadline passes, which is 6 PM for people to

00:07:21.620 leave and people are still there, uh, we don't know what time it's going to happen, but we do know

00:07:26.180 Toronto police are going to go in and force that. And that means they're going to physically remove

00:07:30.580 people. Um, and people will be thrown in, in jail potentially. Um, and a lot of them will face

00:07:38.180 potentially even contempt of court charges, uh, depending on how serious that is. And that's

00:07:43.380 a really big deal. Like you will, you know, you can go to jail for a serious amount of time for

00:07:49.300 contempt of court. So I think it's really kind of irresponsible to encourage people to stay at this

00:07:53.940 point when the protesters had their day in court, they got to make all their arguments. And now

00:07:59.060 it's time to respect the rule of law. Uh, in case there was any lack of clarity before that you're

00:08:04.660 trespassing, that you didn't have a right to be there. If someone is charged, does that

00:08:08.980 constitutional question then if they choose to go that road really start again? And do they, you know,

00:08:14.580 get to in their defense, you know, basically try again with the whole, no, no, no. I had a

00:08:18.660 constitutional right to be there. Um, I don't know how much bearing that would have on the

00:08:23.620 actual contempt of court, but yeah, if there was a trespass charge, they'd probably be able to make,

00:08:28.100 you know, charter arguments again. And, uh, who knows how that will go. But I mean,

00:08:32.500 the fact that the judge just took a very detailed look at this, you know, this is an injunction decision.

00:08:38.340 An injunction is just, you know, what's going to happen until, uh, we can hear the full hearing,

00:08:43.700 uh, in a way that avoids irreparable harm. Um, that is normally a pretty short decision. This is 98

00:08:52.180 pages. Like the judge took, uh, you know, two days of hearing people out. There were all kinds of

00:08:57.140 interveners that submitted arguments and the judge really meticulously went through the evidence.

00:09:02.580 So there was a lot of evidence on the record already and the law and came to a conclusion.

00:09:08.180 Um, so I think that would be highly influential to any, uh, other judge that has to

00:09:13.300 consider, you know, whether there's a charter issue here.

00:09:16.740 I know there are obviously different courts in different provinces, but, but where did this

00:09:20.260 judge diverge from apart from on the decision from, uh, Quebec when the injunction request against

00:09:26.740 McGill was rejected?

00:09:29.220 Yeah. So the big difference here is, uh, when McGill was asking for an injunction to get rid of their,

00:09:36.740 uh, encampment on campus, they did that. Um, what they were seeking was called an interim

00:09:42.100 injunction. And that is something that's basically like you're saying there's an emergency and we need

00:09:47.860 to go to court today or tomorrow or the next day. And the other side, they don't really have a lot of

00:09:53.540 time to build their argument and put together, you know, affidavits and evidence. And so if you're

00:10:00.180 going to court and saying, this is an emergency, you need to shut this down right away. That's going to be

00:10:04.660 a really high bar to get over, to convince a judge that we have to end this thing right away. Um, and

00:10:12.180 that's different than what happened here where, you know, we're, uh, more than a month into it before

00:10:18.020 U of T, uh, initiated these proceedings and the judge gave them weeks of time to get their evidence

00:10:25.300 together. So we have a much fuller, fuller record. And so the judge can, uh, feel confident saying,

00:10:31.060 you know, yes, there's a strong prima facie case that U of T is right here about the trespass.

00:10:36.740 And I think that's the main difference is just that what McGill was asking for was sort of an

00:10:41.140 emergency injunction. And this is something that's a little further down the line with

00:10:44.580 better evidence and arguments. Fair enough. Josh Dehas, lawyer with the Canadian Constitution

00:10:50.340 Foundation. What's coming up on the podcast? Oh, well, we'll be talking about this. We're going to

00:10:55.380 be talking about sanctions against the Quinnell BC mayor. Uh, he's now suing city council because

00:11:02.980 they sanctioned him for, uh, his choice in books. Not even who is his wife's choice in books.

00:11:08.980 Well, there's a little bit of dispute about that. So, you know, at the, at the beginning,

00:11:13.460 it was his wife who was handing out this books, uh, and the book's called a grave error. I believe,

00:11:18.740 uh, true north is involved in that book. And it originally was his wife who was handing out this book.

00:11:25.300 And, uh, I think everybody was asking, um, you know, what, what does this have to do with the

00:11:32.020 mayor's job that his wife is handing out this book? But I think he does admit at some point that maybe

00:11:36.980 there were, uh, he did try to recommend this book to a couple of people. Oh no, he recommended.

00:11:43.380 And he may have even said at some point that it should be in the public library, that people should

00:11:48.660 be able to access a controversial book in the library. Yeah. You can't say that in this day and age,

00:11:53.620 that a book should be in the library, heaven forbid. Uh, right. Well, we look forward to that,

00:11:58.420 Josh. Thanks for coming on as always. All right. Thanks a lot, Andrew. Thanks for listening to the

00:12:02.580 Andrew Lawton Show. Support the program by donating to True North at www.tnc.news.

Juno News - July 06, 2024

Police crack down on U of T’s pro-Palestine encampment

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