What makes the uOttawa encampment legal? Human rights

Came across this deeply troubling and wrong-in-law take on the U of Ottawa encampment — “Thinking your cause is just doesn't make your actions legal”— published as an opinion piece in the Ottawa Citizen. The author, George Monastiriakos, like me, is an adjunct law professor at the university’s law school. Seems fitting, therefore, to share a few thoughts in response.

The legal analysis goes off the rails at the start, in the title, with the assertion that the fact that the students consider themselves to have a ‘just cause’ does not make their protest legal. Only problem with that is, 'just cause' is not, in any event, the legal test. What makes the students actions lawful (and they are) is that they are exercising fundamental freedoms of expression and peaceful assembly, protected under the Charter of Rights, and under Canada's international human rights obligations. Freedoms every one of us should take to heart, and embrace and champion vigorously, whether or not we are the ones protesting. Rather concerning that a law professor jumps over that foundational dimension to what the encampment is all about.

Notably, the U of O students have taken up their right (a right we all share) to peaceful protest thoughtfully and courageously, and with remarkably little disruption to campus life. I know, I've been there several times, including an engaging afternoon teach-in discussing international law. Sometimes I've just spent a few moments, other times I've stayed for lengthier conversations. I've been there in the full heat of the sun and in pouring rain. Each time, I've had inspiring exchanges with the students involved. I've always left with respect and admiration. Left, in fact, with renewed hope in what too often feels to be a hopeless time.

Professor Monastiriakos goes on to draw comparisons between the encampment and the infamous February 2022 “Freedom Convoy” that laid siege to downtown Ottawa for 3½ weeks in February 2022. The argument seems to be that just as the convoy should have been (though of course was not) dealt with more firmly and decisively, so too should the encampment.

Any resident of Ottawa, especially of central Ottawa, has views about the convoy experience. But mine go beyond the personal, as I served as a Commissioner with the Ottawa People's Commission on the Convoy Occupation. With my fellow commissioners I heard and read testimony from over 200 residents of Ottawa about the fear, assaults, hate and abandonment they went through while the convoy had taken over and blocked a large swath of the downtown core. Many of the most vulnerable members of our community felt so terrorized they could not leave their homes or were unable to navigate the hostile sidewalks outside their apartments. It is an absurdity, and an absolute affront to the trauma and unrelenting rights abuses endured by thousands of people in downtown Ottawa for 3+ weeks, to draw any kind of comparison between the truckers and the students. Or to suggest that the impact of what was playing out with the big rigs and other vehicles completely blocking passage along city streets, compares even slightly to tents pitched on a relatively out of the way university greenspace the size of one small city block.

There is no comparison between a raft of weaponized trucks clogging important downtown streets and half a park’s worth of medium size camping tents blocking nothing; none at all. That is why action should have been taken, much earlier than it was, to restrict the convoy and protect human rights; but is not justified in any way with the encampment. And for that restraint and respect for the law, U of O’s president Jacques Frémont and the university administration deserves praise for their approach, which has of course not been on display on other campuses. (What happened in Calgary & Edmonton should offend us all.)

The opinion piece rests its legal argument primarily on defence of private property: “When they trespass on private property, however, their protest becomes illegal. Period.” It is an assertion heard frequently across the United States and Canada as justification for why encampments should be swiftly dismantled.

Enough with red herrings of asserting that campuses are private property, Charter-free zones, where only the law of trespass and the dictates of university officers govern, and the police can be summoned at will. This 'universities are private property' argument is, at best, still unsettled law with courts across the country having taken different approaches over the years. As we've seen two times recently, Quebec judges refused to take the step of forcing the McGill encampment to be dismantled. And don’t forget, of course, that once the police are engaged they are fully Charter bound.

Here's a refreshingly contrary take about the rule of law and the encampments. "Enforcing the law" means upholding protest rights and intervening to limit or shut down a protest only when truly justified, for reasons recognized under human rights laws. It does not mean sending in the police to clear away protesters because they have inconveniently occupied space and have views that some may find uncomfortably challenging.

As a postscript it is impossible not to comment on some of the throwaway lines in the piece, which seem to point to the author’s deeper views about the encampment and the issues at the heart of the protest. He describes the protesters as being on an “anti-western crusade” (though it is not made clear just why it is anti-western to speak up for international human rights) and decries the fact that, “unlike the Freedom Convoy, there isn’t a single Canadian flag in sight” at the encampment, as if that was a measure of genuine patriotism (conveniently sidestepping the wide concerns about the disturbing co-option of the flag during the convoy, the lingering and offensive impact of which is still felt by many). And I’m not at all sure what to do with the description of the lawn in front of Tabaret Hall as a “dog park”? The university, to the contrary, says that the Tabaret Lawn “space is ideal for casual gatherings such as picnics, yoga and meditation classes.” Is an encampment more objectionable if pets are inconvenienced?

Regardless of dogs, flags, or anti/pro/neutral western crusades, the principles remain the same. Free expression and peaceful assembly rights are at the heart of democracy, play a crucial role in building awareness about human rights concerns and, of all places, should be cherished and celebrated on a university campus. There are no grounds for dismantling the U of O encampment. Rather, taking a stroll to the Tabaret Lawn to listen, learn and, ultimately, agree or disagree, is highly recommended.