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Injunction sought by U of T 'highly disproportionate,' encampment lawyers say

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The injunction sought by the University of Toronto to clear a pro-Palestinian protest encampment would effectively prevent the group from engaging in other forms of protest on or near campus, lawyers for the demonstrators argued Thursday.

The university turned to the courts late last month after protesters ignored its deadline to dismantle the encampment set up in the area known as King's College Circle on May 2.

The school has said it wants to allow other forms of peaceful protests to continue, but lawyers for the encampment suggested Thursday that's not reflected in the order the university is seeking.

The order proposed by the university's lawyers would prevent demonstrators from directly or indirectly impeding or restricting access to any university property, and allow protests on public property that doesn't impede access to university property or "any approaching roadways."

"It would capture any protests of any kind just marching along College Street near the campus," lawyer Jackie Esmonde argued.

The university also initially sought to require written permission for protests on campus, but later said it would amend that part of the proposed order to allow protests that follow the school's policies on the disruptions of meetings and the temporary use of space, she said.

But the amendment wouldn't change much since the policy on use of space also requires advance approval, meaning demonstrators would still need permission from the very institution they are protesting, Esmonde said.

"This is a highly disproportionate response, and demonstrates that the university's motivation is not about just shutting down the protest camp, but shutting down protest altogether," she argued.

"An inconvenience to the university and discomfort by those who disagree do not outweigh the vital rights of free expression and peaceful assembly. Indeed, the purpose of the university is to foster difficult and provocative conversations."

Lawyers for the university said the proposed order is not meant to prevent all protests, nor would it require people to book a space to hold a temporary march or rally.

On Wednesday, the university argued the protesters have seized control of private property and are restricting the community's access to it.

They said many in the community have reported feeling unsafe or unwelcome on campus as a result of the protest, and that the encampment has caused irreparable harm.

On Thursday, Esmonde argued the university is “closer in character to a public park" than private property, and people do not normally need permission to use it.

Trespass laws are primarily meant to protect a landowner's right to privacy in their home, not to suppress otherwise legal activity in a place accessible to the public, she argued.

She added the location and form of the demonstration are "vital to its message and its effectiveness."

The campus is big and the encampment covers only a small part of it, she said. Alternative arrangements have been made in the past when the area wasn't accessible, including for the three years it was under construction, she said.

The school's claims of irreparable harm are based on mischaracterizations of the encampment as violent and antisemitic, a framing that perpetuates anti-Palestinian rhetoric and Islamophobia, she told the court.

While there is no doubt the university received complaints about the use of certain protest slogans and symbols, those complaints are false and inflammatory misrepresentations, and it's the university's duty to counter such messages rather than amplifying them through this injunction application, Esmonde argued.

There have been some troubling incidents, but the evidence on them is hearsay that the protesters have no way of challenging, the lawyer said. The perpetrators have not been identified and the university has failed to prove any connection to the encampment or its participants, she added.

The school is asking the court to authorize police action to remove protesters who refuse to leave, and to bar protesters from blocking access to university property or setting up fences, tents or other structures on campus.

Representatives for the encampment have said they won't leave until the school agrees to their demands, which include disclosing and divesting from investments in companies profiting from Israel's offensive in Gaza.

Both sides have been meeting to try to negotiate an agreement outside of the court process. Protesters said their latest offer was rejected Tuesday, while the university said Wednesday it had not yet received a response to its counteroffer.

This report by The Canadian Press was first published June 20, 2024. 

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