29th May 2024

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Alberta university decampments likely violated protesters’ rights

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‘It looks to me like they’ve engaged in kind of a mass violation of protesters’ constitutional rights’

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Actions taken by police at the University of Calgary and University of Alberta to remove pro-Palestine encampments on campus likely violated protesters’ Charter rights, legal scholars say.

One 2020 decision by the Court of Appeal of Alberta gives that argument greater weight than in other provinces, those experts say, because it says a university’s oversight of speech and protest on campus is guided by the Charter of Rights and Freedoms.

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“It looks to me like they’ve engaged in kind of a mass violation of protesters’ constitutional rights,” said Bruce Ryder, a constitutional scholar and professor at York University’s Osgoode Hall Law School.

Pro-Palestine encampments calling for the University of Calgary and University of Alberta to divest themselves from any Israeli-linked investments, among other requests, were swiftly dismantled on Thursday night and Saturday morning. One on U of C campus, erected early Thursday morning, was taken down later that night by Calgary police, with authorities using non-lethal munitions including tear gas and flash bangs to disperse the demonstrators. Five people were arrested, CPS Chief Mark Neufeld said.

A similar situation played out on U of A campus Saturday morning, two days after an encampment had been set up on university grounds. Video posted by encampment organizers showed police striking protesters with batons and arresting demonstrators. Edmonton police said three people were arrested, one of whom is facing charges of assaulting a police officer.

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In 2020, the Court of Appeal of Alberta determined in a case between UAlberta Pro-Life, the Governors of the University of Alberta and the British Columbia Civil Liberties Association that the University of Alberta — and therefore all universities in Alberta — were subject to the Charter in relation to regulation of freedom of expression by students on university grounds.

The decision was in response to a case that asked the court to determine whether the Charter applied to U of A’s handling of a student group’s request to organize an anti-abortion event.

That decision provided clear guidelines regarding what’s permitted on university grounds in Alberta, Ryder said. That answer is less clear in other provinces, where activities allowed on university campuses are more often subject to policies of each university.

“It does mean that there is at least initially a right to protest, and that right includes encampments on university grounds,” said Richard Moon, a law professor at the University of Windsor.

There are several active questions regarding why the two universities took similar recourse to disperse the encampment, particularly around the police’s heavy-handed approach, said Irina Ceric, an assistant law professor at the University of Windsor.

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“I think this is likely to be an illegal use of Alberta’s trespass statute because it’s very clear that trespass, when it’s being issued … that still engages the Charter,” Ceric said. “There’s going to have to be a balancing between the university’s right to determine access to its space and the freedom of expression of student protesters.

“The legitimacy and the legality of those trespass notices is absolutely going to be something that’s going to have to be determined by a court,” she said.

U of C president Ed McAuley wrote in a Friday letter that protests and rallies are allowed on campus, but overnight demonstrations and temporary encampments are not due to the risk of violence they present. U of A president Bill Flanagan said in a statement early Saturday that city police were asked to assist in enforcing a trespass notice because the encampment “put the university community’s safety at risk.”

Edmonton encampment
Edmonton police cleared a pro-Palestine encampment on the University of Alberta quad early Saturday. Photo by Shaughn Butts /Postmedia

The university and police will also have to prove there was serious evidence of an imminent threat to make it acceptable under the Charter, Ryder said. “If they don’t have that kind of evidence, then I think they overreacted.”

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For the universities and police to have acted as swiftly and dramatically as they did, Ryder said, the action has to be proportionate to the negative impact that would have occurred had authorities not acted.

“Absent some strong evidence of serious imminent threats to the activities on the university, when you call in that many officers? I don’t understand the thinking that imagines the risk of that to the safety of students is somehow less than the risks they posed.”

The scenes playing out in Alberta in recent days have contrasted different approaches taken by other university administrations.

In Montreal, police have not followed requests from McGill University to remove an on-campus encampment, which has occupied the area for several weeks now. McGill said Friday that it’s pursuing an injunction. One injunction application filed by two students has been rejected by Quebec courts.

Universities aren’t required to seek injunctions to ask police to dismantle encampments, Ceric said.

Thompson Rivers University’s executives have met with members of the pro-Palestine movement, according to reporting by Castanet Kamloops.

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At an unrelated press conference on Friday, Alberta Premier Danielle Smith said she’s supportive of the police action to remove the encampments.

“There are appropriate ways to peacefully protest but they have said no camping, and they also want to make sure that it’s students who are on the campus,” she said.

The Alberta NDP, in a statement, called the police actions in Calgary and Edmonton “disproportionate to student actions” and condemned Smith’s approval.

“Like other attacks on our democracy, this is a distressing erosion of Alberta students’ rights. In this increasingly conflict-ridden world, we call for an end to violent reactions in response to legitimate and Charter-protected peaceful protests,” wrote Alberta NDP Critic for Justice Irfan Sabir and Critic of Advanced Education Rhiannon Hoyle.

With files from Scott Strasser and Jonny Wakefield

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