Court to mull fate of pro-Palestinian university protest camp
Before May 1, the quadran‐ gle between Vancouver Is‐ land University's (VIU) cam‐ pus library, its main cafe‐ teria and a performing arts theatre was known mostly as a home to rabbits and the occasional student demonstration.
But three months after protesters set up an encamp‐ ment calling on the Nanaimo-based school to de‐ nounce violence and oppres‐ sion in "solidarity with the Palestinian people" - the grassy gathering spot is at the centre of a court battle that has drawn attention from across Canada.
Lawyers for VIU and a handful of protesters will face off in B.C. Supreme Court Wednesday morning for the last day of a three-day hearing dedicated to the fu‐ ture of the camp - which lawyers for the students say is one of the last on a Canadi‐ an university campus.
VIU wants an injunction forcing the protesters out un‐ der threat of arrest. The stu‐ dents, meanwhile, say the university hasn't suffered any harm beyond the hurt feel‐ ings of administrators now trying to use the courts to de‐ ny them the right to free speech.
And lining up behind both sides are interveners ranging from B'nai Brith Canada to the National Council of Cana‐ dian Muslims - who have all submitted arguments raising points they want Justice Michael Stephens to consider before he reaches any con‐ clusions.
'Incompetent, disingen‐ uous and unprepared'
In publicity material, VIU describes the quadrangle as "a place to study and play in the central area of campus."
But in a notice of applica‐ tion filed last month, VIU claims the area has been constantly occupied by as many as 35 people since the encampment took over the space. The number now al‐ legedly fluctuates between eight and 10.
According to the court documents, the protesters' demands from VIU include a "formal statement acknowl‐ edging the genocide of Pales‐ tinians, the closure of a Star‐ bucks opposite the camp and the disclosure of investments "complicit in human rights vi‐ olations in Palestine."
The university claims it has tried to open dialogue, citing a meeting where pro‐ testers were "belligerent and called the university repre‐ sentatives 'incompetent, disingenuous and unpre‐ pared.'"
Protesters are also ac‐ cused of calling a campus se‐ curity officer a "fascist" and disrupting a board of gover‐ nors meeting with a drum and a bullhorn. The court documents claim they also poured red paint on the Star‐ bucks sign - which has since been removed.
In response, the students named in the lawsuit say the encampment "has not ex‐ cluded people from the grassy area."
They claim VIU represen‐ tatives told them they were willing to discuss financial matters but refused to an‐ swer "questions regarding the university's investments and public statements, deny‐ ing ties to the conflict."
The camp leaders say they agreed not to interrupt convocation ceremonies but "could not take responsibility for outside parties." They al‐ so deny any of the harms the university claims to have suf‐ fered - including alleged costs of $870,000 and the resignation of staff.
'A complaint about stu‐ dents engaging in protest'
One of the key decisions facing the judge is whether to accept VIU's argument that the case is about trespassing - not the right to protest.
As the owner of the cam‐ pus, the university says it has warned the protesters "the encampment and overnight camping were prohibited ac‐ tivities on campus."
But the students accuse VIU of obscuring an attempt to restrict their freedoms.
Instead, they want Stephens to apply the same test used in an injunction ap‐ plication against protesters at the University of Toronto balancing alleged damages to the school against harm caused by infringing on Charter rights.
"In sum: this is a com‐ plaint about students engag‐ ing in protest tactics," the protesters' response reads.
"VIU's appropriate re‐ course is enforcement of its internal policies and discipli‐ nary procedures. VIU is ask‐ ing this court to take on an inappropriate role and to tread on students' constitu‐ tionally protected freedoms of expression and assembly in so doing."
'A chilling message'
Many of the same organi‐ zations that intervened in the University of Toronto case have also filed submissions in the Vancouver Island Uni‐ versity hearing.
An application filed by the National Council of Canadian Muslims and the Arab Cana‐ dian Lawyers Association claims VIU's "injunction appli‐ cation appears to traffic heavily in ... stereotypes and tropes," revealing underlying biases against "Palestinians, Arabs and/or Muslims."
"These biased responses not only exemplify institu‐ tional discrimination but also send a chilling message to advocates for Palestinian rights and a heightened anxi‐ ety for Muslims, suggesting that their rights and free‐ doms are less valued and un‐ equally protected," the group says.
In contrast, in its applica‐ tion to intervene, B'nai Brith an organization dedicated to combating racism and anti‐ semitism - says the B.C. court needs to balance the right to free speech against "human rights of freedom from dis‐ crimination and harass‐ ment."
B'nai Brith says the judge needs to preserve the "dig‐ nity and worth" of students and faculty beyond the peo‐ ple inside the camp.
The B.C. Federation of Stu‐ dents is also intervening on behalf of the province's 170,000 students, speaking directly to the role of campus protest and raising questions about a university's need to respect public spaces for stu‐ dents on what would other‐ wise be considered private property.
The right to be uninter‐ ested
The University of Toronto decision provides the most obvious - and recent - parallel to the questions facing Stephens.
Ontario Superior Court Justice Markus Koehnen said he could have written his rea‐ sons in "only a few pages." But he instead wrote a 98page decision to give the par‐ ties and intervenors "the sense that they have been heard."
He ultimately found the encampment was neither vi‐ olent nor antisemitic - but he did find the protesters were preventing others from using key parts of the campus.
Koehnen noted that a U of T lawyer drew derisive re‐ marks when they asked why someone shouldn't be able to have breakfast in the area blocked off by protesters.
The judge said it "may well be true" that "the value of their speech about issues as important as the war in Gaza or University divest‐ ment is more valuable than someone's right to have breakfast."
But that's the world we live in, the judge said.
"When it comes to valuing different types of activity, lib‐ eral democracies allow peo‐ ple to be uninterested in im‐ portant political issues as much as they allow people to be passionate about impor‐ tant political issues," Koehnen wrote.
"Both groups have rights to space which must be man‐ aged."