The U of T injunction was a win and a loss
The encampment is gone, but comments in obiter may have made future battles harder to win
On July 2, Justice Koehnen of the Ontario Superior Court issued an order granting an injunction sought by the University of Toronto to evict the encampment on the Front Campus, which had been there for more than 50 days with the intention to remain until the university divested itself entirely from Israel. The order mandated that the encampment be removed by 6:00 p.m. the following day. Protests would still be permitted on campus during the day, but no one would be permitted to remain overnight.
Just like that, it was over. The protestors, who had disrupted exams and graduation celebrations which regularly accessed the Front Campus were gone in advance of the deadline.
Taken at face value, Koehnen J.’s decision was a win. It cleared the encampment, which was the functional result that the University and many intervenors, including Jewish organizations such as B’nai Brith and CIJA were hoping for. However, over the course of his 98-page decision accompanying the order, Koehnen J. made numerous statements and findings that feel very much like a loss. It feels this way because while Koehnen J. did find that the encampment was causing irreparable harm, justifying the injunction, he simultaneously held that the encampment and many of its slogans were neither Antisemitic nor posed a risk of violence to Jewish students or members of the Jewish community accessing Front Campus.
There are many elements of this decision that could, and should be, discussed. I want to focus on the Jewish voices Koehnen J. relies upon, and the findings made regarding the encampment’s chants and slogans, both of which are deeply problematic. I assert again for anyone who has read the decision, there are other comments made in obiter that I also find very troubling, but simply cannot address here because it would make this too long.
The decision relies on the affidavit of a visitor to the encampment, identified at KS (paragraph 68), as the only Jewish voice directly included in regard to the perceptions of safety at the encampment. Without discrediting KS’ identity as a Jewish person, their reasons for supporting the encampment make evident that they are not an individual who is representative of the Jewish community.
I tread lightly when I speak on this because I do not know KS, and can only read into the portion of their affidavit excerpted in the decision. KS, and other members of a very small cohort of Jews, who have disavowed Israel, one of the fundamental elements Judaism, felt safe bringing their children to Shabbat dinners at the encampment. Many members of this cohort have prominently relied on the slogan “not in my name” in reference to the actions of the Israeli government in the war and wider Jewish support for Israel in this moment.
I accept, and agree, not to speak in the name of Jews who do not support the legitimacy of Israel. I accept to disagree on this topic. But, I do not accept them speaking in my name, as Koehnen J. has allowed KS to do here. The position of KS contrasts with the reality accepted in the decision of students policing the encampment and refusing to allow entry to Front Campus to anyone they believed was not in support of their cause - a policy that targets Zionist Jews, who make up 87% of the Jewish community. The failure of Koehnen J. to appreciate that KS’ perspective is simply not reflective of the experience of the majority of the Jewish community who did not feel safe coming near the University of Toronto campus during the period of the encampment is concerning, particularly in light of positions presented by intervening Jewish organizations, which do reflect the majority of Jews such as B’nai Brith and CIJA.
Koehnen J. states that “part of the controversy arises out of the absence of an agreed definition of antisemitism” (paragraph 75). While I hesitate to disagree entirely with Koehnen J., this is blatantly false, and again deeply troubling to see as a finding of fact. It is true that the University of Toronto’s Working Group on Antisemitism elected not to adopt IHRA in 2021. However, this is the definition that has been adopted by the Federal and Ontario provincial governments. Perhaps, to the extent of internal University discipline processes, there is no consensus, but the injunction application was not being heard within the University. There is a formal definition of Antisemitism that has been agreed on by the relevant governments and is the one that should have been applied in court.
Koehnen J. relied on a paper titled “From the River to the Sea: Palestine Will be Free a Primer on History, Context and Legalities in Canada” by Kent Roach, Jillian Rogan, Esmat Ehlalaby, Anver M. Emon, and Alejandro Paz (University of Windsor students will recognize the name of Professor Rogan who has been a vocal opponent of the existence of Israel for many years) (beginning at paragraph 89), as the authority for finding that the slogan “from the river to the sea” is used by both sides of this conflict.
This is, perhaps, the most common phrase heard at encampments and rallies. Though the paper and Koehnen J. use it to ground their findings, I am not going to touch on the extremes of political factions in Israel and their use of the phrase because by their very nature, extremes are just that, and are typically not representative of a more moderate majority. It is the majority perspective on the phrase that I feel is far more relevant to the discussion and should have guided the finding on this subject. The slogan, in English, in its entirety is: From the river to the sea, Palestine will be free. I stress that this is what it is English because “free” replaced “Arab”, in order to have it rhyme in English the same way the original slogan: From the river to the sea, Palestine will be Arab, does in Arabic. This is not a slogan that is used by both as it is one that specifically and deliberately calls for there to be no Jewish state in any of the area that currently makes up Israel, the West Bank, and Gaza.
Regarding the word “intifada”, Koehnen J. found that “...there are dozens of “intifadas” which have occurred throughout history in the Arab world” (paragraph 100) and finds, with the help of intervenors representing Palestinian and Muslim interests that intifadas can take the form of peaceful protests.
Throughout the section of the decision discussing whether the phrases and slogans used at the encampment are Antisemitic, Koehnen J. repeatedly emphasizes the need to consider the context. So let’s do that.
The nature of the linguistic virus is that words evolve.
While an intifada may not necessarily need to be violent, in the context of Israel, it has always been a violent attempt to eradicate the Jewish population. When this phrase is coupled with another frequent encampment slogan: “Free Palestine by any means necessary”, we see a celebration of the violence that took place on October 7 and what many members of the Jewish community feel is a threat of further violence against Jews in Israel and around the world.
These findings on language are troubling because, while they do not pertain to the test for the injunction or ultimate conclusion on that issue, they are not merely words spoken into the air. These findings on the slogans used at the encampment and the authorities cited on what does or does not constitute Antisemitism form part of the precedent that will impact future litigation not only pertaining to the encampment at the University of Toronto, but any cases involving issues of Antisemitism in Ontario.
I am grateful the encampment is gone and that the University of Toronto is in the process of restoring Front Campus for students, faculty, and the wider community in advance of the fall semester. But I would be remiss if I did not express my concern about the precedent set by the Koehnen J. in this decision and the ways it could make it more difficult to have Antisemitism on campus recognized in the courts moving forward.