Why the Charter Should Extend to Universities: A Critique of University of Toronto v Doe

Lynn Hu, Senior Forum Editor, University of Toronto Faculty of Law Review and JD Candidate (2027), University of Toronto

During the summer of 2024, pro-Palestinian protesters set up an encampment at the University of Toronto (the “University”) St. George Front Campus for several weeks, demanding disclosure of and divestment from the University’s Israeli investments. In response, the University applied to the Ontario Superior Court of Justice (the “Court”) for an interlocutory injunction to end the encampment on the grounds of trespass and ejectment.[1] The protesters claimed that the University’s efforts to dismantle their encampment infringed their Charter freedoms of expression and assembly. In University of Toronto (Governing Council) v Doe et al, Justice Koehnen declined to address the applicability of the Charter to the injunction, but noted that Charter values would nonetheless apply.[2] Through the three-part RJR-MacDonald test, he found the injunction was warranted, despite finding the encampment was not violent or antisemitic. If the Charter were to apply in the alternative, Justice Koehnen found that the injunction could still be justified under section 1 of the Charter.[3]

The Charter’s application to public universities has been a point of unsettled contention, with mixed jurisprudence across provinces and clarification needed from the Supreme Court of Canada (“SCC”). In University of Toronto, Justice Koehnen refrained from applying the Charter by relying on a technical requirement to serve a notice of constitutional question to the Attorneys General of Canada and Ontario, with which the respondents failed to comply. The issue ofCharter applicability was only discussed in obiter, and Justice Koehnen’s reasons against its application to the University can be broadly summarized into three categories: (1) the jurisprudence in Ontario does not support it, and cases in Alberta and the recent SCC decision in York Region District School Board v Elementary Teachers Federation of Ontario can be distinguished;[4] (2) the Charter does not protect illegal acts of trespass; and (3) the issue itself is a “red herring” because Charter values would apply anyways.[5] Each of the three lines of reasoning does not hold up to close scrutiny. This article contends that universities can fall within the category of “government” for the purposes of the Charter given existing jurisprudence, and civil disobedience should not be precluded from Charter protection. Lastly, whether Charter values or Charter rights would apply does matter structurally in the legal analysis.

Evolving Jurisprudence Favours Extending Charter Application

First, there is a clear legal path through which public universities can be subjected to Charter scrutiny when regulating speech and assembly on campus, particularly in light of the recent SCC decisions in York Region and Dickson v Vuntut Gwitchin First Nation.[6] The test for Charter applicability under section 32 of the Charter was established in Eldridge v British Columbia.[7] It can be applied in one of two ways: (1) the entity at issue is governmental by its very nature or by virtue of the degree of control the government exercises over it; or (2) a particular activity of the entity is governmental because, for example, it implements a specific statutory scheme or government program.[8] All of the entity’s activities under the first branch would be subject to the Charter, whereas only some of the activities that meet the condition would be Charter-protected under the second branch. While the first branch is more difficult to argue given the substantial autonomy of universities endorsed in McKinney v University of Guelph,[9] courts have nevertheless left open the possibility that some activities by universities can still apply under the second branch.

In rejecting the respondent’s claim that the University’s regulation of speech would fall within the second branch of the Eldridge test, Justice Koehnen relied heavily on the decision affirmed by the Court of Appeal for Ontario in Lobo v Carleton University, which is itself problematic in ways that are also reflected in this decision.[10] In Lobo, a group of students alleged that Carleton University (“Carleton”) breached their freedom of expression by “failing to allocate the desired space”[11] for their pro-life demonstrations. After initially ignoring the students’ request for anti-abortion demonstrations on campus, Carleton then charged the students with trespassing and prevented them from demonstrating on campus.

The Lobo decision is unsatisfactory for two main reasons. First, the Court in Lobo distinguished from persuasive precedents in Alberta that recognized Charter applicability to a university’s regulation of speech. The reason given was that Carleton had a distinct governing structure that was autonomous from government, unlike the universities in Alberta.[12] However, this reasoning conflates the first branch of the Eldridge test with the second. The Alberta cases, such as Pridgen v University of Calgary, were not decided on the basis of government control as required by the first branch, but on the delivery of a government program or function as dictated by the second branch.[13] In other words, the mere fact that Carleton is more autonomous does not preclude it from similarly implementing a government program or function, such as the delivery of public education. Second, framing Carleton’s actions narrowly as “book[ing] spaces for non-academic extra-curricular use”[14] ignores the crucial fact that the students were denied space only as a result of the content of their expression. Justice Koehnen not only adopted a similarly narrow framing but also wrapped it in private property terms by characterizing the case as a matter concerning “the University’s decision about when and how its property can be used for an extra-curricular activity.”[15]

An alternative framing adopted in Pridgen was to characterize the University’s activity broadly as a regulation of student speech, which can be interpreted as: (1) an exercise of the University’s statutory power of compulsion under theUniversity of Toronto Act;[16] and (2) an essential part of the University’s delivery of postsecondary education, which is a governmental function. Two SCC decisions in 2024 further support extending Charter applicability to quasi-governmental entities. In concluding that Ontario public school boards are government by nature, the majority in York Region affirmed that “public education is inherently a governmental function,” and “it has a unique constitutional quality, as exemplified by section 93 of the Constitution and by section 23 of the Charter.”[17] In Dickson, the SCC further elaborated that, in circumstances where the entity implemented a specific government program and exercised powers of statutory compulsion, an entity cannot “escape Charter scrutiny ‘merely because it is not part of government or controlled by government’.”[18] If a self-governing Indigenous community is still subjected to the Charter, as decided in Dickson, how could a self-governing public university not be because of autonomy?

As Justice Koehnen correctly noted, the underlying reason to assert public universities’ independence from the government despite public funding is to protect their academic freedom.[19] In the case of protests, however, application of the Charter would not undermine academic freedom—it is integral to it. It is the precondition to protecting open and free dialogue and the pursuit of knowledge and truth within a university setting. Justice Paperny put it best in Pridgen: “Academic freedom and the guarantee of freedom of expression contained in the Charter are handmaidens to the same goals; the meaningful exchange of ideas, the promotion of learning, and the pursuit of knowledge. There is no apparent reason why they cannot comfortably co-exist.”[20]

Civil Disobedience Not Precluded from Charter Protection

Even if the Charter conceptually applied to the University, Justice Koehnen nonetheless found that “it does not apply here because the Charter does not protect trespass.”[21] This proposition is highly problematic as it is legally incorrect and relies on circular reasoning. The conclusion—after conducting a full Charter analysis—in Batty v City of Toronto that the Charter does not permit unreasonable appropriation of public spaces was used as the premise in this case to preclude the application of the Charter in the first place.[22] An act of civil disobedience being “trespassing” in the technical sense should not preclude it from Charter protection where the constitutionality of the Trespass Notice itself is being challenged. In other words, the statutory and common law of trespass need to be interpreted in accordance with the Charter, not the other way around.

When read correctly, the approach taken in Batty and Committee for the Commonwealth of Canada v Canadaactually favours Charter application in the case of civil disobedience.[23] In Batty, despite finding that the protesters’ occupation contravened the Parks By-law, Justice Brown nonetheless found that the enforcement of the Trespass Notice would infringe their fundamental freedoms of conscience, expression, assembly and association under sections 2(a) to (d) of the Charter,[24] even if it was ultimately found to be justified under section 1. Similarly, in Commonwealth, the SCC found that using an airport as a site for distributing political pamphlets is constitutionally protected under section 2(b) of the Charter, although it technically contravened sections of the relevant regulation.

To label civil disobedience as tortious conduct and therefore exclude Charter applicability would carve out most forms of protest from Charter protection, including but not limited to encampments, protests without permits, sit-ins/occupations, and various blockades. It ignores the reality that protests are often adversarial and disruptive by their very nature. For the right to protest to be entrenched under the Charter would necessarily mean that it includes a certain degree of disruptive and technically illegal or tortious behaviour. For example, the temporary blocking of an intersection in a mass protest, the resulting impacts on traffic, and making some level of noise in a public space are all perfectly consistent with the right to peaceful assembly. That said, the right is not absolute, and protesters are not allowed to disrupt indefinitely, since some limits prescribed by law can still be justified under the section 1 analysis. The protesters are also not immune from tort claims and limitations imposed by other private parties. For example, in Li et al v Barber et al, an Ottawa resident successfully obtained an interlocutory injunction to prevent the use of air horns or train horns by the Freedom Convey protesters based on nuisance.[25] In any case, the right balance should be determined at the stage of the section 1 Charter analysis, subject to private civil claims, not prohibited outright simply because it is “illegal.”

Charter Values Are Insufficient

Lastly, Justice Koehnen contended that the question of Charter application is merely a “red herring” since both sides agree that Charter values would apply anyway. This undermines the significant difference between the application of Charter rights versus values, the former being determinative while the latter often is not. While both approaches should theoretically arrive at the same outcome, the structure of analysis does seem to differ practically, depending on whether the Court is applying Charter rights or values. This could be due to the general confusion around how to apply Chartervalues since Doré v Barreau du Québec.[26] If Charter protections are engaged, then the starting point of the analysis would be determining whether a Charter right has been infringed under the constitutional law framework, and if so, whether any limitations are reasonable and demonstrably justified in a free and democratic society under the Oakes test.[27] On the other hand, if the Charter is not engaged, then the protections offered to owners under the property law framework would take priority. Charter values such as freedom of expression would only count as one of many factors to be balanced on equal terms with other property interests at a later stage.

Although this case was not decided on the merits, the structure of analysis here is still revealing. Depending on whether Charter rights or values are engaged, the narrative is often framed primarily in terms of property rights orCharter rights. This parallels the framing presented by both sides: the University framed this as a tort of trespass and appropriation of private property, whereas the protesters framed it as an unjustified infringement of section 2 rights. In the main decision, Justice Koehnen adopted the property-based framing in the three-step test for interlocutory injunction. In fact, he found the prima facie case for trespass and ejectment to be so strong that it was “possible to grant an injunction based solely on the fact there [had] been a trespass without even considering the factors of irreparable harm and balance of convenience.”[28] In other words, the Court found the presumptive protection of property rights to be so strong that consideration of Charter values would be unnecessary to grant an injunction that could effectively end a peaceful encampment. Unlike Charter rights, Charter values can easily be subordinated to the considerations of property rights at worst, and at best be considered on equal footing with other non-Charter protected activities, such as the public use of common spaces for recreational use.[29] Justice Koehnen used this line of reasoning when considering Charter values under the third part of the RJR-MacDonald test, the balance of convenience. Freedom of expression, like the freedom to eat breakfast (there were nine references to “breakfast” in this case), was just one of many conflicting claims to the use of the public space, without regard to its special constitutional status. This sets a low bar for universities to meet when justifying injunctions against encampments.

Conclusion

At a time when universities across the country can use the police force to remove student protesters with impunity,this case presents a missed opportunity to nudge the law in the direction of greater Charter protections.[30] Instead, the success of the injunction helps legitimize removals of students from campuses, discouraging future student protests. Although not taken in this case, there are legal pathways to extend Charter applications to public universities, especially when it comes to the regulation of speech and assembly. Furthermore, the application of the Charter must allow for civil disobedience and some tortious actions in the course of a protest. Lastly, merely applying Charter values offers insufficient protection in the face of strong presumptions to protect private property rights.

As for the encampment itself, the Court could only disallow fences and the gate mechanism so that counter-protesters and the general public can also use the space. The University can still monitor and enforce conditions of non-violence and non-discrimination, and use campus security if necessary, to remove any protesters who act in breach of these rules. If there is indeed evidence of violent conduct, that would also form a legitimate pressing and substantial objective to remove the encampment under section 1 of the Charter analysis. This compromise would preserve both the encampment and the University’s authority, while also allowing for public access and ensuring freedom of expression for all.

[1] University of Toronto (Governing Council) v Doe et al, 2024 ONSC 3755 at para 123 [University of Toronto].

[2] Ibid at paras 113–14.

[3] Ibid at para 246.

[4] Alberta cases include Pridgen v University of Calgary, 2012 ABCA 139 [Pridgen] and UAlberta Pro-Life v Governors of the University of Alberta, 2020 ABCA 1; York Region District School Board v Elementary Teachers’ Federation of Ontario, 2024 SCC 22 [York Region].

[5] University of Toronto, supra note 1 at para 114.

[6] Dickson v Vuntut Gwitchin First Nation, 2024 SCC 10 [Dickson].

[7] Eldridge v British Columbia (Attorney General), 1997 CanLII 327 (SCC) [Eldridge].

[8] University of Toronto, supra note 1 at para 227.

[9] 1990 CanLII 60 (SCC).

[10] Lobo v Carleton University, 2012 ONCA 498 [Lobo ONCA], affirming Lobo v Carleton University, 2012 ONSC 254 [Lobo ONSC].

[11] Lobo ONCA, supra note 10 at para 1.

[12] Lobo ONSC, supra note 10 at para 14.

[13] Pridgen, supra note 4 at paras 100–103.

[14] Lobo ONCA, supra note 10 at para 4.

[15] University of Toronto, supra note 1 at para 231.

[16] The University of Toronto Act grants delegated statutory powers to its Governing Council to make rules and enforce them, including those related to student conduct and academic integrity, pursuant to its Code of Student Conduct (see University of Toronto Governing Council, “The University of Toronto Act, 1971” (4 June 2015), online: <governingcouncil.utoronto.ca/system/files/import-files/ppdec1519784709.pdf>).

[17] University of Toronto, supra note 1 at para 81.

[18] Dickson, supra note 6 at para 66.

[19] University of Toronto, supra note 1 at para 239.

[20] Pridgen, supra note 4 at para 117.

[21] University of Toronto, supra note 1 at para 245.

[22] Batty v City of Toronto, 2011 ONSC 6862 at para 15 [Batty].

[23] Committee for the Commonwealth of Canada v Canada, 1991 CanLII 119 (SCC) [Commonwealth].

[24] Batty, supra note 22 at para 75.

[25] Li et al v Barber et al, 2024 ONSC 775 at para 5.

[26] Doré v Barreau du Québec, 2012 SCC 12.

[27] R v Oakes, 1986 CanLII 46 (SCC).

[28] University of Toronto, supra note 1 at para 131.

[29] Ibid at para 185.

[30] See news report on various universities, including Adam Carter, “Police dismantle pro-Palestinian encampment at York University”, CBC News (6 June 2024), online: <cbc.ca/news/canada/toronto/york-university-encampment-1.7226697>; Kelsey Patterson,  “Edmonton police dismantle pro-Palestinian encampment at University of Alberta; 3 arrested”, CityNews (11 May 2024), online: <calgary.citynews.ca/2024/05/11/police-dismantle-pro-palestinian-encampment-university-alberta>; Lily Dupuis,  “5 people arrested following pro-Palestinian protest at University of Calgary”, CBC News (10 May 2024), online: <cbc.ca/news/canada/calgary/protest-palestinian-university-calgary-police-force-arrests-1.7201062>.