Vancouver Island University (VIU) dismantled the Palestinian Solidarity Encampment – occupied by some of its students for over 100 days – after the BC Supreme Court granted the university an injunction based on trespass to property. The BCCLA intervened in the injunction hearing. 

At the time of the hearing, we posted a thread on X outlining our position, and it caused a bit of a stir. As is our usual practice, we didn’t reply to the comments. However, Leonid Sirota later moved the discussion from X to his blog Double Aspect, and we thought it would be prudent to clear up some misunderstandings (although I’d respectfully suggest that reading our submissions would serve the same purpose). 

Mr. Sirota, along with other online commentators, seems to have the impression that the BCCLA doesn’t believe that governments should respect property rights. Or maybe even that property rights somehow aren’t real or legitimate. Nothing could be further from the truth. Yes, we used the phrase “claiming to own property” in our thread, but this was not to suggest that VIU’s claim to ownership was illegitimate, or that property claims in general should be ignored. Rather, we were simply describing the context where a private actor comes to court making a claim to property rights and asking for the court to enforce them.  

That might be enough to clear things up. But, to be safe, let me also point to some of our previous work. Take our position on civil forfeiture for instance. Or our work on municipalities seizing or destroying the belongings of unhoused people. The BCCLA has and will continue to staunchly defend property rights from unreasonable interference by the state.  

And what about support for the state intervening in private disputes, even where that intervention may limit civil liberties to some extent? Mr. Sirota provides some examples like private actors disrupting religious or union meetings. Shouldn’t defenders of civil liberties want the state to step in and protect property rights in these types of cases? Sure, at least sometimes. The BCCLA has, for instance, taken a position in favour of legislated “bubble zones”, expanding private property rights to prevent protests in immediate proximity to abortion clinics and the homes of service providers. 

So, it seems we’re actually in broad agreement with our critics: property rights exist and protecting them can often be a necessary aspect of upholding the civil liberties and human rights we care about so deeply.  

Then, how to explain the pointed disagreement around the VIU injunction? 

Let’s compare that case with the examples noted by Mr. Sirota where property rights are either being asserted against the state or in addition to some other civil liberty. The state wasn’t taking any property away from VIU, so no civil liberties issues arose in that respect. And yes, the encampment was using VIU’s property without permission, but were they infringing the school’s civil liberties in some way? We would say no. It should be noted that while some have claimed the encampment engaged in antisemitic behaviour, the university never made that suggestion and similar claims made in court about the University of Toronto encampment were squarely rejected in that decision.  

Universities should be places where expressive activities – including controversial or unpopular ones – are allowed and even encouraged. We shouldn’t be thinking about universities simply as property rights holders, but as institutions that advance the public interest by allowing academic freedom and student activism to flourish. Instead, an injunction would have the effect of limiting students’ freedoms of expression, association and assembly. 

Despite this, VIU argued that the fact they owned the property in question should be the end of the analysis. They wanted the court to apply a truncated version of the usual test for injunctions, where civil liberties wouldn’t really factor in at all.  

The Palestinian Solidarity Encampment argued, and the Court accepted, that because Charter rights were implicated the Court should apply the full test, where a balance must be struck between any competing interests.  

We went a bit further. As we explained in our submissions, we think that, before granting injunctions, courts should be sure that any limits on Charter-protected activities are both necessary and proportionate. Otherwise, property interests tend to trump the more intangible civil liberty interests at play. The Court didn’t take us up on this idea this time round, but did expressly leave the door open for the law of trespass to evolve to better account for Charter rights in the future. 

And it’s not just Charter rights that are at risk. More and more frequently, injunctions are being granted against Indigenous peoples seeking to defend their inherent rights. Yet, when Indigenous peoples try to use injunction law to prevent the destruction of their lands and waters, courts are much less accommodating. In theory, Indigenous peoples should be able to apply injunction law to protect their interests while underlying claims to rights and title remain unresolved legal issues. Instead, what we see are injunctions being granted in an inequitable manner. A 2019 study by the Yellowhead Institute revealed that while 76% of injunction applications sought by corporations against Indigenous land defenders were successful, only 19% of injunctions are granted when the positions are reversed. 

Recently, we’ve seen extremely troubling behaviour in response to protest activities – with or without an injunction in place. From the Edmonton Police Service violently evicting a protest encampment at the University of Alberta, to the RCMP’s deplorable treatment of environmental activists and Indigenous land defenders, to the Vancouver Police Department’s brutal response to pro-Palestinian protesters, dissent is under attack throughout Canada.  

In our view, courts should be more reluctant to provide their stamp of approval on these abuses, even if that means private property rights sometimes take a back seat. It appears that others believe property rights should have a more privileged position in our society.  

Ironically, while it’s well settled that there’s no hierarchy between Charter rights, when it comes to injunctions at least, property rights – notably absent from the Charter – seem to be king. We see that as a threat to civil liberties; one that we’ll continue to challenge.