The University of Waterloo has issued a legal Trespass Notice to the encampment protesters, a mere two days after the release of its Task Force on Free Expression report.
The notice states that encampment members who do not immediately vacate the premises “risk facing consequences consistent Trespass to Property Act” (Ontario).
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I served on the University’s 11-member Task Force on Freedom of Expression. Our report was released by the President’s office less than 48 hours ago. So it is with some frustration that I read the President’s email outlining the rationale for the Trespass Notice.
The Task Force report was the culmination of six months of work, which included campus-wide consultations, focus groups, research, and a jurisdiction scan of Canadian university statements and policies on free expression. The report identifies 24 principles and makes 16 recommendations geared toward improving policies with respect to free expression on campus. As far as I can tell, it is the most comprehensive report of its kind in the Canadian university sector. You can read it here.
In the section on campus protest, the report states the following:
All members of the university community have the freedom to pursue knowledge, engage in debate, assemble, peacefully protest, and participate in expressive activity on campus in accordance with the law and university policies.
With respect to the occupation of an area of campus that does not generally disrupt campus operations or the freedom of movement of others (e.g., sit ins, teach ins, occupations, encampments), the university owes a duty of restraint in permitting ongoing peaceful assembly, even if protesters are technically trespassing or in violation of various university policies. This duty of restraint does not mean that protesters have a right to endlessly occupy what is meant to be shared space—there is thus a temporal dimension to potential limits on protest. Moreover, while this duty of restraint is intended to maximize freedom of expression consistent with constitutional rights and freedoms, it does not supersede the university’s requirements to meet statutory obligations, including those related to noise, light, public health, and physical safety.
The university should weigh its duty of restraint against the degree of disruption caused, physical safety, and the nature of the location occupied. Dialogue should be the principle that guides any resolution. Attempts to enforce the removal of protesters, through injunctions or by requesting police action, should be considered only as a last resort, and only under conditions where the disruption to campus has become untenable or where there are specific reasons to believe the physical safety of the protesters, or the community can no longer be assured.
In the context of protests on university property, the university has the authority and right to ensure that its core functions—teaching, research, and related activities—remain free from undue interference, though a degree of disruption is inevitable when peaceful protest occurs. Further, members of the campus community have the right to general freedom of movement, and the university owes a duty of restraint in allowing peaceful protest on campus. This includes the taking up of space, the right to exhibit signs safely, to shout slogans, and to march. The right of counter-protest is equally protected, so long as it meets the above conditions.
Notably, the University parrots some of this language in its release about the Trespass Notice. It states that the “right to protest does not mean people have the right to endlessly occupy a shared university space. The University has acted with restraint in enforcing its policies, and the law.”
However, in justifying the decision to issue the Trespass Notice the University provides no concrete details explaining how the encampment’s continued presence constitutes undue disruption to campus activities. It states: “The University cannot tolerate disruptive behaviour that creates concern for the safety of people on campus. We cannot tolerate behaviour that crosses the line to harassment. The behaviour of encampment members is becoming untenable and causing greater disruption to the normal business of the University.”
What behaviour has crossed the line to harassment? And is the University applying a legal definition of harassment or is it merely responding to complaints about perceived ‘harassing’ behaviour? What disruption has the encampment caused to campus operations?
It is worth noting that several days ago a Board of Governors meeting was cancelled due to a sit-in in the building where it was to be held. The University cited “safety concerns”, but did not explain in any concrete terms what those concerns were, or even whether the sit-in occupied the specific room in question (making the disruption obviously unacceptable) or merely the corridors/area leading to it (making the assertion of undue disruption less probable).
The University also relies on a “concern for the safety of people on campus” in its communications about the Trespass Notice without specifying the nature of those concerns.
In our section on campus safety, the Task Force writes that “universities must pursue safety with measures that are (a) in response to specific safety concerns, (b) applied narrowly, and (c) sensitive to the particular settings, such as a classroom, residence, or public spaces.” In relation to protest, we state that enforcement measures to remove protesters should only occur “under conditions where the disruption to campus has become untenable or where there are specific reasons to believe the physical safety of the protesters, or the community can no longer be assured.”
The University’s justification for this Trespass Notice falls short of adequately explaining and specifying how the situation has become untenable or what the specific safety concerns might be. In short, the University has failed the first true test of its approach to campus free speech following the release on the Task Force report it commissioned.
In the interest of fairness, I should explicitly acknowledge that the Task Force report is only a guiding document, explicitly meant to inform future policy change in the “weeks, months, and years to come.” But it is frankly deflating to see such a weak statement by the University a mere two days after our Report on Free Expression was released, a report that provides specific guidance on the notion of campus safety, on protest, and on University communications.
Instead, the University communications on this raises the suspicion that the administration has continued to receive complaints from people who oppose the encampment, find it, its signage, and statements by its members offensive, and who want to see it removed, and have decided to draw a line given that it has now been over a month since the encampment started. While it is true that peaceful assembly is not unlimited, I am deeply skeptical that the University has reached a valid time limit in the current context.
The University’s reliance on trespass laws to apply this Notice replicates the problematic pattern established by other universities, including McGill, which has seen its injunction requests appropriate refused by the courts.
We have heard no reports of classes, research, or events being cancelled because people have occupied a grassy hill. We have heard no reports of serious safety issues, like violence, threats of violence, or probable physical dangers at the site of the encampment.
If the University has concrete campus safety concerns, or it can demonstrate that the encampment itself has caused serious disruptions to normal campus operations, then it is obliged to specify those concerns in a forthcoming and transparent manner. Otherwise we can only conclude that it is failing to live up to the principles articulated by the Task Force it established specifically to give it guidance in contexts like this one.
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