Michael Ettedgui
Commenting on Israel and the Jewish world.

On July 2, justice was done in Toronto, sort of

On July 2, justice was done in Toronto, sort of. The Honorable Koehnen J. of the Superior Court granted the University of Toronto an injunction to end the anti-Israel protest encampment located on its campus for months. Deciding the protestors were in fact trespassers, the court order allows the Toronto Police to remove them. At the time of this writing, they are all but gone.

Jewish students at the University were relieved by the decision. But a reading of the text reveals this was anything but a show of support for them or the wider community. In fact, Koehnen J. sided with the protestors and their supporters regarding speech issues most important to the Jewish community. The decision was based on a straightforward analysis of property rights and nothing else.

At odds were the University of Toronto, a private landowner beholden to its entire student and faculty body of some 100,000 people, and a group of anti-Israel, at times pro-Hamas and pro-terrorism student protestors living in 177 tents.

In April, the protestors cut through a university fence erected to protect its Front Campus after a three year, $100 million refurbishment. They proceeded to close the fence with “…chains, wiring… [and] additional… panels… to create a barrier and impede efforts to clear the fencing.” A tarp was draped “…over many of the fence panels to prevent people outside the fence from seeing inside.” The protestors also “…implemented a controlled entry system…” whereby “gate team marshals” regulated entry in accordance with their own policies. People seeking access were interviewed and if deemed agreeable to the cause, forwarded to “onboarding teams” who showed them “community guidelines” including belief “…in the Principles of the Resistance…”

The protestors refused to abide by the university’s rules, which banned encampments but allowed them to demonstrate outside the hours of 11:00pm and 7:00am. Even in the face of the university’s Notice of Trespass, they declared they would remain on the site until the university divested from Israeli institutions. When the Toronto Police advised it would not use force to clear the encampment without a court order, the university moved for an injunction.

The law in Ontario limits evidence in these kinds of motions. This was not an exhaustive trial, but a short proceeding based on written submissions and oral argument. A robust record underpinning the Jewish community’s complaints about the protestors’ communications were not properly before the court in this forum. Nor were they required as this was a case of trespass. But the judge’s findings were alarming nevertheless.

Intervenors complained about violent rhetoric in the encampment, including slogans like “from the river to the sea,” “glory to the martyrs,” and “globalize the intifadah,” which Justice Koehnen declined to denounce, let alone characterize as antisemitic (again, especially within the context of this type of motion). His conclusions, while salient in law, should form a wake-up call to leaders of the Jewish community in this city. People using violent, antisemitic slogans in public will not be discredited. On the contrary, those slogans can and will be whitewashed by the highest authorities.

Relying on an academic paper written about the phrase “from the river to the sea,” the court concluded the expression means “…different things ranging from a description of the area which Israel should have sovereignty, [to] opposition to occupying the West Bank and Gaza, to a call for democracy and equality in the area between the [Jordan River to the Mediterranean Sea].” Because Jewish Israelis on the right end of the political spectrum also used the phrase, the court reasoned, it is not necessarily being used in the encampment nefariously.

Regarding the phrase “glory to the martyrs” the court explained, “in Palestinian culture [the word “martyr”] refers to a person wrongly killed because of an ongoing fight for liberation and justice, regardless of their religious background [which] would include innocent civilians who have died in the Gaza War.”

About the word “intifadah, the court explained one of its definitions as a “a call for international support to end the oppression of the Palestinian people,” not necessarily a call to violence against Jews.

And in relation to the use of inverted red triangles in the encampment, which Hamas “…used in association with violence against Israelis,”  the court noted some people “…point out that the Palestinian flag contains an inverted red triangle when it is hung vertically, suggesting it is a symbol for Palestine, not a symbol for violence.”

Words and symbols matter. History has demonstrated this time and time again. Interpretations such as these embolden Canadians supporting Hamas, working tirelessly to undermine Israel’s just war against terrorism and intimidate Jews. Another phrase held innocuous and contextualized by the court – “by any means necessary” – did not fall on deaf ears of Torontians this past week, when two synagogues were vandalized. If these slogans are not delegitimized in a concerted, organized and effective campaign of mass communication, they will be used as dog whistles to enemies of Israel and the Jewish people more and more publicly.

What the court did get right, however, was a momentous slap-down of privileged bullies, who don’t understand the conflict, let alone their own place in a rules-based environment. Ever since the beginning of the encampment, the University of Toronto has coddled these people. It has engaged in negotiations with them, offered to help them navigate the school’s processes and even opened its sanitary facilities to them.

The court, in enforcing the university’s property rights, explained, “at the end of the day, a property owner has the authority to determine what occurs on its property. The authority is not limited by any obligation to negotiate. If it were otherwise, property owners would be obligated to negotiate and compromise with anyone who took over their space.”

Contradicting the protestors’ claims to freedom of expression (which doesn’t exist on private property) Justice Koehnen highlighted the absurdity of their argument, writing, “[t]he protestors’ conduct is inconsistent with freedom of expression. At the end of the day, the only people who are allowed onto Front Campus are those who agree with (or at least who do not openly disagree with) the protestors’ beliefs.”

In other words, this is not your mother’s living room. Other people using the space matter. Get your entitled, stubborn and trespassing encampment off the University’s private property and comply with the rules it has set. 

About the Author
Michael Ettedgui is a lawyer in Toronto.
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