Court to mull fate of pro-Palestinian university protest camp

Before May 1, the quadrangle between Vancouver Island University's (VIU) campus library, its main cafeteria 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 encampment calling on the Nanaimo-based school to denounce violence and oppression 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 future of the camp — which lawyers for the students say is one of the last on a Canadian university campus.

VIU wants an injunction forcing the protesters out under threat of arrest. The students, meanwhile, say the university hasn't suffered any harm beyond the hurt feelings of administrators now trying to use the courts to deny 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 Canadian Muslims — who have all submitted arguments raising points they want Justice Michael Stephens to consider before he reaches any conclusions.

'Incompetent, disingenuous 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 application 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 allegedly fluctuates between eight and 10.

According to the court documents, the protesters' demands from VIU include a "formal statement acknowledging the genocide of Palestinians, the closure of a Starbucks opposite the camp and the disclosure of investments "complicit in human rights violations in Palestine."

The university claims it has tried to open dialogue, citing a meeting where protesters were "belligerent and called the university representatives 'incompetent, disingenuous and unprepared.'"

Protesters are also accused of calling a campus security officer a "fascist" and disrupting a board of governors meeting with a drum and a bullhorn. The court documents claim they also poured red paint on the Starbucks sign — which has since been removed.

In response, the students named in the lawsuit say the encampment "has not excluded people from the grassy area."

They claim VIU representatives told them they were willing to discuss financial matters but refused to answer "questions regarding the university's investments and public statements, denying ties to the conflict."

The camp leaders say they agreed not to interrupt convocation ceremonies but "could not take responsibility for outside parties." They also deny any of the harms the university claims to have suffered — including alleged costs of $870,000 and the resignation of staff.

'A complaint about students 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 campus, the university says it has warned the protesters "the encampment and overnight camping were prohibited activities 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 application 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 complaint about students engaging in protest tactics," the protesters' response reads. 

"VIU's appropriate recourse is enforcement of its internal policies and disciplinary procedures. VIU is asking this court to take on an inappropriate role and to tread on students' constitutionally protected freedoms of expression and assembly in so doing."

'A chilling message'

Many of the same organizations that intervened in the University of Toronto case have also filed submissions in the Vancouver Island University hearing. 

An application filed by the National Council of Canadian Muslims and the Arab Canadian Lawyers Association claims VIU's "injunction application appears to traffic heavily in ... stereotypes and tropes," revealing underlying biases against "Palestinians, Arabs and/or Muslims."

"These biased responses not only exemplify institutional discrimination but also send a chilling message to advocates for Palestinian rights and a heightened anxiety for Muslims, suggesting that their rights and freedoms are less valued and unequally protected," the group says.

In contrast, in its application to intervene, B'nai Brith — an organization dedicated to combating racism and antisemitism —  says the B.C. court needs to balance the right to free speech against "human rights of freedom from discrimination and harassment."

B'nai Brith says the judge needs to preserve the "dignity and worth" of students and faculty beyond the people inside the camp.

The B.C. Federation of Students is also intervening on behalf of 170,000 students it represents in the province, speaking directly to the role of campus protest and raising questions about a university's need to respect public spaces for students on what would otherwise be considered private property.

The right to be uninterested

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 reasons in "only a few pages." But he instead wrote a 98-page decision to give the parties and intervenors "the sense that they have been heard."

He ultimately found the encampment was neither violent 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 remarks 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 divestment 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, liberal democracies allow people to be uninterested in important political issues as much as they allow people to be passionate about important political issues," Koehnen wrote.

"Both groups have rights to space which must be managed."