Just let the students be
More than 2,000 pro-Palestinian protesters, mostly students, have been arrested — in some cases violently — throughout the U.S. for activism. Now hundreds of Canadian students have joined the movement.
Freedom of expression, speech and assembly are fundamental rights enshrined in the Charter of Rights and Freedoms and international law. Indeed, these represent the lifeblood and oxygen of democracy. Exposing students to and challenging them with different views and ideas, however objectionable, is the very raison d’être of universities.
Against this backdrop, how should we respond?
In general, all public spaces can be used to protest, and 81 per cent of Canadians agree that it is “acceptable” to protest on campuses, according to an Angus Reid Poll.
The legal position is not so clearcut, but to ensure fairness and justice, we must look at the problem through two different lenses: the black letter law and the democratic tradition of civil disobedience.
Canadian courts are split on the application of the Charter to public university protests. Courts in Alberta and Saskatchewan have ruled that it applies, while B.C. and Ontario courts have held the opposite. Once a court finds that the Charter applies, then it must determine if university property is public or private.
The existing Supreme Court of Canada test is confusing even for lawyers and judges. It found hospitals and colleges to be public, but not universities. Ultimately, the Supreme Court will have to settle the first question and clarify the second.
In any event, even if a court finds a Charter violation, these rights are not absolute.
This brings us to the second lens. Consistent with a long-established democratic tradition, activists often engage in acts of civil disobedience. Such acts often involve breaking laws and is often resorted to when all other avenues have failed.
Democratic thinkers have argued that civil disobedience — which includes sit-ins and roadblocks, vandalism, leaking sensitive documents, and even violence — is an important feature of a mature democracy.
Without civil disobedience, slavery, Jim Crow segregation laws, colonialism in many nations, apartheid in South Africa and the Vietnam War may have dragged on for longer and the gender discrimination gap would be far wider than it is today, etc.
Opponents raise valid concerns about hate. Everyone should be safe on campus, but being safe and feeling safe are not the same. We have criminal laws, including hate speech provisions in the Criminal Code to tackle violence, advocating genocide, publicly inciting hatred likely to lead to a breach of the peace, wilfully promoting hatred and antisemitism.
That said, we must tread carefully. The conflation of anti-Zionism with antisemitism is creating confusion when evaluating whether expression is hate. Some Zionist students on campuses are claiming that they feel unsafe because protesters are highlighting the Israeli killing of more than 40,000 and destruction of hospitals, schools and other civil society infrastructure. This is not hate or antisemitism.
In fact, many of the protesters are anti-Zionist Jews. Criticizing the Zionist ideology and the Israeli state should be fair game in a democracy even if Zionists “feel” unsafe.
Similarly, the anti-war and prohuman rights protesters can argue that the appearance of Israeli flags and defence of what they believe is a genocide by pro-Israeli counterprotestors make them feel unsafe. Where do we draw the line?
Protesting conduct by Saudi Arabia, Iran or some Islamists is not Islamophobia and should not be curtailed because it may make some Muslims feel unsafe.
No political ideology, be it liberalism, secularism, Islamism, Communism or Zionism should be above critique because some supporters claim to “feel” unsafe.
Terms and phrases such as “intefadeh” which means shaking off oppression and from “River to the Sea Palestine will be free,” are contested and carry multiple meanings. Indeed, using this logic, we would need to ban “Allahu akbar” (God is Great) because many extremists use it in a threatening manner.
Yes, universities would be within their technical legal rights to shut down the protests if there is violence or serious property damage, but even then, as leading democratic thinkers have pointed out, how we treat these protesters determines whether we are a true democracy or a dictatorship. The former seek accountability but consider the “selfless” nature of the act and the good intentions, while dictatorships suppress dissent and punish severely.
Canadian campuses should let the students be.