Across North America, encampments have cropped up on university campuses in reaction to the ongoing conflict in Gaza. The demands of the protestors holding the encampments vary, but most protestors want universities to make their investments public and divest from any companies profiting from the actions of Israel in Gaza or selling supplies to the Israeli military.

There has been a wide array of initial responses from universities, police, and politicians across provinces. In Alberta, both the University of Alberta and the University of Calgary have chosen to rely on police to dismantle encampment. During the dismantlement, police at UofA used “special munitions,” and at UofC, police used rubber bullets and tear gas to force protestors out of the encampments. Alberta Premier Danielle Smith has praised these decisions. On the other hand, McGill University in Quebec sought an injunction from the courts before acting against the encampment on that campus. That injunction was denied, and the university has complied by monitoring the encampment without acting against protestors. In the middle is the University of Toronto in Ontario. UofT allowed its encampment to go on for twenty-two days before issuing trespass notices to the protestors. At that time, the Toronto police denied requests to dismantle the encampment from the university, saying the force would not participate in dismantling the encampment unless there is an emergency or to carry out a court order.

Eventually, even McGill and UofT dismantled their encampments, although with considerably less force than the Alberta schools. In early July, UofT was granted an injunction from the Ontario Superior Court. Toronto police were prepared to intervene, but the protestors left before the deadline. A week later, McGill hired a private security firm to remove protestors. Heavy machinery was then used to remove all structural aspects of the encampment. While provincial police were not directly involved, a large force was on standby near campus as the university took action on its own. Both encampments remained over two months and were ongoing during the universities’ convocations.

The diverse reactions to the encampments exemplify the complicated legal nature of the protests. The protestors have a right to freedom of expression as enshrined in section 2 of the Charter. However, there are limits to Charter rights, and the Charter only protects against government actions. The questions then are: are the universities in these cases government actors? If they are, is the dismantlement of the encampments a reasonable limitation on the protestors’ right to freedom of expression? And, if it is reasonable to dismantle encampments, what policy objectives should administrations consider before doing so?

Freedom of Expression in Public and Government Owned Spaces

Setting aside the question of universities as government actors for a moment, we should first look at how the right to freedom of expression is treated in government-owned and public spaces. Freedom of expression in Canada has been interpreted to apply to any non-violent action that is used to convey meaning, including speech, physical actions, and writings. Because expression is a Charter right, if the government wants to limit expression, it needs to demonstrate a pressing and substantial reason for limiting expression and needs to do so in a way that minimally impairs the right. This also applies when the government owns the place where expression is taking place. In the case of Committee for the Commonwealth of Canada v. Canada, the government argued that it could stop a group from distributing pamphlets in an airport because the government owned the airport. The Supreme Court of Canada disagreed, saying that, unlike private citizens, the government does not have a full right to control conduct on its property.

This does not mean the government has to allow all conduct on its property or in public spaces. In very similar circumstances to the university encampments, a group called Occupy Toronto set up an encampment in St. James Park. Because of the structures put up by the group and members staying in the park 24/7, the city of Toronto issued trespass notices and sought an injunction to dismantle the encampment. The group brought a Charter application against the city, claiming Toronto’s actions infringed on their freedom of expression. Justice Brown of the Ontario Superior Court agreed that the applicants’ freedom of expression had been violated. Still, the city’s actions were permissible under section 1 of the Charter (the provision which says all rights and freedoms in the Charter are subject to limits) because the there was a pressing and substantial reason for the limitation and the city was minimally impairing the right when asking protestors to leave the park from 12:01am–5:30am.

Does the Charter Apply to Universities?

Maybe? Sometimes? The answer to this question is not straightforward. If a person or an institution acts on behalf of the government, they are a government actor to whom the Charter applies. Universities are complicated because sometimes they act on behalf of the government, but not always.

Most universities have characteristics that indicate they are not under government control, such as having an independent board of governors. However, even for institutions that can show sufficient independence from the government generally, if that institution fulfills statutory schemes or programs created by the government, it may be subject to the Charter. For example, a hospital with its own board of governors may generally be independent of the government, so it would not be required to follow the equality provision of the Charter in its hiring practices. However, when carrying out the provincial program of guaranteed public health (and receiving money from the government to do so), the hospital will be required to follow the equality provision when providing care to patients.

Similarly, most universities are not restrained by the Charter when writing policies regarding their employees. However, the question remains if universities are restrained when it comes to actions regarding students. Public education is a policy area of the provincial and federal governments, and they have programs that supply universities with funding to further this. For example, between federal and provincial grants, government funding accounted for nearly half of the revenue the University of Alberta collected for the 2023-2024 fiscal year.

The government also plays a role in how much money universities can make. In Ontario, the government regulates the tuition universities can charge Canadian students. The federal government also plays a role through the issuance of study permits for international students. International tuition is unregulated, so these students generally pay more in tuition than domestic students At York University, international students only make up 18% of the student body, but they account for 49% of tuition revenue.

Some judges, like Justice Marina Paperny of the Alberta Court of Appeal, have said they think universities should be subject to the Charter when it comes to providing education and, thus, dealing with students. When issuing the injunction for the UofT encampment, Judge Markus Koehnen declined to decide if the Charter should apply because proper notice of such a challenge was not given. Nevertheless, Kohnen J. expressed the importance of balancing the school’s property rights with students’ freedom of expression. In support of this, the injunction allowed the dismantlement of structures and the prohibition of camping but also allowed protestors to continue to have demonstrations on the campus between 7am­–11pm. These parameters are very similar to those in the Occupy Toronto case mentioned above where the city was the involved.

Unfortunately, until a higher court (particularly the Supreme Court of Canada) weighs in on this kind of issue, it is unknown how any Charter challenges to the dismantling of encampments by universities will be handled. At the time of writing, no Charter challenges have been filed against any university concerning the encampments.

Policy Considerations

Regardless of whether universities have the legal right to dismantle the encampments, there is also the question of whether they should do so as a matter of policy. Even if they are not found legally liable, that does not mean the universities are entirely off the hook for the choices they make.

Whether encampments are allowed to continue for extended periods or are dismantled, the universities will incur expenses. If the encampments are allowed to stay, these costs may include compensation for increased security or repairing damage to campus property. Even if protestors do not cause intentional damage, extended use of courtyards or other non-durable surfaces is likely to cause some damage. On the other hand, if universities choose to dismantle encampments, this will lead to legal costs. This cost may include seeking injunctions against the encampments and the potential cost of litigating Charter or discrimination claims. Although some costs will be covered if the universities win in legal proceedings, not all costs will be covered and losing could mean even greater expense.

The actions of universities also have social implications. Universities need people – students, academics, and donors – to continue their educational and research programs. An institution’s reactions to the encampments can affect their ability to attract and maintain relationships with these crucial groups. Regardless of which choice universities make, they risk upsetting (and losing the funds of) alums, donors, and potential future students. Current students may transfer schools if they disagree with their university’s decisions. Yet, inaction by universities is also risky. Inaction can lead to unresolved hostilities on campus or future large-scale demonstrations.

It is important to note that the choice of action or inaction for universities is not a choice between using police to dismantle encampments and allowing the demonstrations to continue indefinitely. Action can also mean meeting with protesters and working out an action plan, as was done at Brown, Northwestern, and Rutgers. The administrators at these schools met with protesters and agreed to investigate divestment options. While some protesters thought this was insufficient, more protestors found these promises acceptable and dismantled the encampments.

Ultimately, whatever the schools do, it comes down to how universities want to be seen by their students and the public. Do they want to be the administration that held firm or the one that allowed protesters to overrun their campus? Do they want to be known as the school that allowed their students to be tear-gassed or the one that engaged in collaborative policymaking with students? Each administration needs to take all these factors into account when making decisions about the encampments.