On June 20, lawyers representing the student protesters from UofT Occupy for Palestine (O4P) — the group organizing the encampment — argued that the camp should not be cleared by an injunction request.

The injunction hearing began on June 19 at the Ontario Superior Court of Justice, with U of T’s lawyer Monique J. Jilesen arguing for police to clear the encampment at King’s College Circle. 

Day two of the injunction hearing marked day 49 of the ongoing camp. 

In her opening remarks, the students’ lawyer Jackie Esmonde from Cavalluzzo LLP — a labour, employment, and human rights law firm — argued that the university’s policies affect all forms of demonstrations on campus. She noted to Justice Markus Koehnen, who is presiding over the hearings, that “the protesters are not outliers” amid ongoing pro-Palestinian protests across countries. 

Disclose, divest, cut ties 

The second day of the hearing was for the students’ lawyers to voice their concerns with U of T’s injunction request and to advocate for the students’ right of free protest. 

Around 70 people were in attendance, with the majority of people in the front rows wearing keffiyehs and one person donning the Palestinian flag as a cape. 

Esmonde noted that the protesters have three main demands for the university: to disclose its financial holdings, divest from companies supplying the Israeli government with weapons and services, and cut ties with Israeli academic institutions.

She discussed the university’s initial response to the encampment and drew on the administration’s initial safety concerns and final offer to the students before U of T issued a trespass notice.

“[U of T’s] final offer was simply a restatement of an existing divestment policy,” she said. “The protesters already expressed concerns with this policy.” 

In an interview with The Varsity, O4P spokesperson Erin Mackey spoke about the ongoing negotiations between the student protesters and the university. 

She referenced U of T President Meric Gertler’s update on the efforts to resolve the encampment and claimed that some of what he wrote was inaccurate.

“The updates he provided were not entirely accurate. He referred to some sort of pause in negotiations, which is not true. There was never a pause. We have been open to negotiations,” Mackey alleged. The Varsity reached out to the university for comment, but did not receive a response.  

On June 18, the protesters sent the university a settlement offer to avoid the injunction hearing and ask them to commit to divestment. Mackey claimed that the administration refused the offer and “proposed committees instead of commitments.” 

“We hope that the judge understands that the argument U of T was making [in the hearing] is incredibly fictitious,” said Mackey. “We’re taking things day by day and assessing the situations as they come.”

As the students continue to stand with their demands, Esmonde claimed “The rights of the protesters really must prevail,” as long as negotiations continue in good faith. 

“Irreparable harm”

Esmonde also argued that the university space, including King’s College Circle, should be a space of free discourse. She broke down each of the university’s criteria of what they argued constituted “irreparable harm.”

Irreparable harm is a legal term used as one of the criteria for an injunction. In this case, the university argued that it would suffer “irreparable harm” to its reputation and property if the injunction was not granted. 

Since the start of the encampment, the university has raised allegations of it harming other students due to hateful incidents. Esmonde responded that the encampment protesters have strict community guidelines that prohibit hate speech within the area. She argued that many people of different faiths have felt safe within the encampment, alluding to the weekly Shabbat services. She also stated that any offensive signs in the area were dealt with immediately by the protesters.

Esmonde noted that one student who filed an affidavit  — which are written testimonies verified as true by the signer — felt that being in the encampment was “One of the most beautiful feelings of my life…and demonstrated that as a Palestinian we have a place on campus.” 

Esmonde also took time to explain certain terms used by protesters, such as “intifada” and “from the river to the sea,” which some have claimed perpetuates antisemitism.  

In an affidavit, Alejandro Paz, an associate professor of anthropology at UTSC and member of the Jewish Faculty Network, wrote that the terms come from a place rooted in peaceful, non-violent protests.

“The University and faculty members have made unwarranted or false claims about Palestine solidarity protests, including by mischaracterizing popular slogans, or by claiming that the Palestine solidarity movement is calling for ethnic cleansing,” wrote Paz. 

Esmonde also addressed the health and safety concerns that the university raised, and mentioned that student protesters established protocols to minimize biohazards. 

Freedom of expression 

One of the main concerns brought up by the student’s legal team was that the university is silencing freedom of expression. 

Mae Jane Nam, the lawyer from Ryder Wright Holmes Bryden Nam LLP — a union-side labour law firm — representing O4P spokesperson and social justice education graduate student Sara Rasikh also stated her case against the injunction request. 

During her argument, Nam went through decades of student activism, including other protests on U of T’s campuses, to showcase how students’ freedom of expression is pivotal for society. Nam mentioned that “The whole point of freedom of expression is that it will make people uncomfortable.” 

One concern raised by Justice Koehnen was the ability of other protesters to occupy the space. He questioned whose right to freedom of expression takes precedence if he were to recognize the green space as a public space and two groups want to occupy the same area.

Nam noted that the concern is not about whether other groups can use the space, and that the focus should be on whether the students should be allowed to continue protesting with their right to free speech.

In response to U of T’s argument that the encampment is a magnet for violence and hateful incidents, Esmonde mentioned that “Protesters are not responsible for the actions of counter-protesters, and have taken every measure toward deescalation.” 

“King’s College Circle is a place of expression and counter-expression,” she said. 

UTSU Town Hall 

At 4:00 pm on the same day of the hearing, the University of Toronto Students’ Union (UTSU) and O4P organized a town hall at the Student Commons to discuss the ongoing encampment. Around 40 people were in attendance. 

In a post on Instagram, UTSU noted that the town hall was an “open, safe inclusive space where students of all backgrounds are welcome to ask questions and participate in dialogue in reference to the ongoing encampment.” 

Sakeena Mohammad, UTSU’s vice-president equity, spoke to The Varsity about the union’s continued support of the encampment. 

“Our statement remains [being in] support [of] our students and we condemn any sort of violence against our students, and we will stand by our students,” she said. “However the injunction hearing goes, we will support them.”

Closing remarks 

After the students’ lawyers’ arguments, U of T’s lawyer offered rebuttals. About 50 people in court planned a walk-out during her time to speak. Approximately 10 people stayed in attendance.

In her final remarks, Jilesen noted that the encampment organizers are “literal gatekeepers” of the space and that “the trespass is the serious issue to be tried.” 

After the hearing, lawyer Sima Atri spoke to reporters outside the courthouse in a press conference at 6:30 pm. Atri is a lawyer with the Community Justice Collective — a collective of lawyers who provide free legal services to organized communities — representing the student protesters. 

Atri stated that the university’s case was based on “false and inflammatory characterizations” of the encampment as “hateful and violent.” 

“The students before us are reminding us that war is a choice [and] that choice is ours, ours to support or oppose,” she said. “They remind us that genocide and apartheid must be protested.”

Rasikh also spoke to the press after the hearing. 

“We will continue showing up. We will continue applying pressure. We will continue doing this until our university is no longer complicit in genocide and occupations and apartheid,” she said.

At the end of the hearing, Justice Koehnen confirmed that the earliest he will have a ruling on the injunction request is June 24, with the last potential day being June 27. 

If he decides to grant the request, protesters will have 24 hours to clear the encampment before the Toronto Police Service is authorized to remove them.  

With files from Kyla Cassandra Cortez and Eleanor Yuneun Park.