The Ottawa Citizen reported earlier this week that five pro-life student activists were arrested at Carleton University for staging a protest that featured graphic images of bloody fetuses and comparisons to historical genocides in a certain common area of campus.  The students had requested permission from the university two months prior to use the space for the protest, but that request was denied and the university instead offered a less prominent location.  The protest and arrests are captured in this video (youtube).

The abortion debate has returned to the center stage on Canadian campuses over the past couple of years, with anti-abortion activists making headlines and attracting responses from both university administrators and student union representatives.  See here for a discussion of recent events on BC campuses.

This particular incident, as represented in the youtube video, involves a well-spoken student leader and gives the university a black eye because of the legal issues raised by the university’s decision to summon police to carry out the arrests:

  • Did the students trespass?  Trespass is a broad legal term that, at least under the Trespass Act (BC) (BCLaws), includes a person engaging in an activity on certain property after the occupier of that property has told them that the activity is prohibited.  Presumably, the students paid their tuition – though one of the five was not a student at Carleton – and in return the university gives them the right (called a “licence”) to use the university’s property in certain ways (e.g. to access classrooms) under certain conditions (e.g. so long as they act within some defined series of rules applicable to student conduct).  In this case, the university seems to be saying that situating the protest in that space was a prohibited activity and so, technically, the students may have trespassed.
  • Is university property public or private?  This issue always sounds to me more like a political than legal argument for the following reason: just because property may be owned by a public body does not mean individuals have the right (or should have the right) to use that property for political protest at any time and of any form.  Freedom of speech is important, but so is regulating traffic, maintaining law and order, respecting local businessowners, etc.  The centre of the intersection at Burrard and Robson may be owned by the City of Vancouver, but that does not entitle five Vancouver residents to stand there with placards and a soapbox after failing to get a permit to do so.
  • Does the public have the right to be exposed to graphic images only with prior consent?  This is an interesting issue because it touches on the need to balance competing rights and values – e.g. the right to political protest vs. the right to go about your business without being forced to stare at pictures you consider offensive.

These issues have long histories related to political protest, particularly on campuses.  However, the most salient point appears to me to be whether the university is exercising its powers to discriminate against a group on account of having certain political views.  In many respects, a code of student rights and responsibilities acts like a student’s contract with a university, and if the university is breaking that contract a student should be able to point that out.

The tactical issues for the university and perhaps the police are another matter as well.  For example, lawful or not, did the students need to be handcuffed?  My guess is they could have been ushered away without resorting to cuffs, but there may be some criminal law requirement I am unaware of.  University administrators, quite reasonably, have an interest in maintaining order on campus – there would be little benefit if political groups could simply protest where, when and how they wanted to.  But universities have been notoriously unprepared to deal with these issues, especially where the media is involved (e.g. despite the video’s prominence of youtube, I don’t think Carleton even has a press release about the event up on its website). 

As a first step, universities and student groups engaged in these issue should have sufficient legal advice to persuasively explain their positions.

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