It is not up to the Quebec premier or the mayor of Montreal to order Montreal police to remove the pro-Palestinian encampment, experts say.
As the voices demanding a forcible removal of the pro-Palestinian encampment from McGill University’s downtown campus grow louder and angrier, human-rights lawyers continue to argue that Montreal police are right to exercise restraint in this situation as long as the encampment remains peaceful.
McGill University president Deep Saini first called on Montreal police to remove the encampment on April 30, just three days after pro-Palestinian protesters began setting up tents in a field near the university’s main entrance. The encampment soon grew to over 100 tents occupied by about 150 people, surrounded by metal fencing and covered in tarps, festooned with pro-Palestinian slogans and the protesters’ demands that McGill divest from companies that are profiting from the war in Gaza.
Federal Immigration Minister Marc Miller called the image “hate speech” and Higher Education Minister Pascal Déry called it “provocation, incitement to violence” adding, “This camp must be dismantled.”
On a radio program this week, Liberal MP Anthony Housefather said it is “completely unacceptable” that the SPVM is doing nothing to clear the encampment, going so far as to say that he believes the reason police have not done so is that “they feel that the administration of Montreal would not have their back if they did it.”
Two injunction requests have been filed in Superior Court, one made by two McGill students and the other by McGill itself, both seeking an order to dismantle the encampment. At a press briefing on Monday, SPVM spokesperson David Shane reminded the public that the court is still examining how to balance the protesters’ rights to freedom of expression and freedom of peaceful assembly with McGill University’s right to the use and enjoyment of its property.
He noted that courts have twice ruled, by refusing to grant temporary injunctions in the above cases, that there is no urgency to remove the encampment while the judge examines the case. In the first temporary injunction, the judge ruled that the two McGill students who requested the injunction failed to demonstrate they were in imminent danger from the encampment, and in the second, McGill failed to demonstrate there was an urgent reason to remove the encampment while the judge deliberated on the merits of the case.
Human-rights lawyer Pearl Eliadis said Montreal police are right to resist calls to rush in, as they have in the past been accused of intervening overzealously when it comes to protests.
“The most important thing to remember here is that we do have a right to peaceful assembly here in Canada,” said Eliadis, associate professor at McGill’s Max Bell School of Public Policy.
“The word ‘peaceful’ is of course underscored. … Freedom of peaceful assembly is the right to occupy physical space. It’s not just ideas and words floating around; it’s about the right to disrupt, if you will, things that other people are doing. It’s the right to actually occupy space in order to confront the person you are trying to address with your physical presence.”
She said McGill’s president is right when he says that the encampment is an unlawful occupation.
“But the right to peaceful assembly is almost always an unlawful occupation. You are almost always trespassing on somebody’s property. You are almost always violating the traffic safety code or some bylaw. So the question is: Where is that balance?”
She said police are constantly monitoring the encampment, and unless they see Criminal Code violations such as rioting, they are better off leaving the encampment alone until the court rules on the McGill’s request for a permanent injunction to remove it.
“If it becomes no longer peaceful, I do think police should move in,” but, she added, “in a democratic society, it is very important to have a police force that is not taking political direction and politicians know that.”
She said politicians who imply the mayor should order police to move in are only feeding “the frustration and anger of people who I understand are justifiably concerned. It aggravates peoples’ feelings that politicians are standing by when something should be done and isn’t. In this case, having politicians order around the police is something that absolutely should not be done. Nobody is being hurt.”
She said the bar to prove heinous propaganda in Canada is very high, and although the use of the image of armed people to advertise a youth program may have been a judgment error that does not increase public sympathy for the protesters’ cause, it may not qualify as hate propaganda.
Louis-Philippe Lampron, who teaches human-rights law at Université Laval, said the issues raised in the civil cases before Superior Court about the encampment are important.
“The fact of erecting the camp is a form of collective expression that is protected by the charter,” he said. “But now (the question will be): After how much time is it reasonable to force the dismantling of the camp? That question will have to be isolated and decided and it has not been by any of the injunctions filed so far.”
He said police are right to ignore calls to move in before the court has ruled, and while the camp remains peaceful.
“It’s a good thing they are not feeling obligated to answer to the call from the executive branch of the government because it’s all about the separation of powers. … For me, that’s a good thing. The police are not political. They are supposed to make sure the law is respected. When a court says the law is not being respected when looking at the full case … it will be a whole new ball game then. Because there would be a court order.”