The decision rendered on 1er May by Judge Chantal Masse of the Superior Court on the request to stop the pro-Palestine demonstration on the grounds of McGill University will help those who, in different contexts, have to respond to requests from all sides in order to to prohibit expressive activities.
Streets and parks are the property of the state or public bodies. Invoking property rights to conclude that expressive activity taking place there is illegal is absolutely not enough. Above all, it is not because an expressive activity contradicts beliefs that it constitutes racism, the expression of hatred or threats.
The request for an injunction cited perceived threats. One of the applicants alleged that he did not feel comfortable on campus. But there was no proof that access to University premises was actually hindered. The plaintiffs cited other previous protests that took place in Montreal and on several North American campuses following events in Israel and Gaza in the fall of 2023. The judge found that security fears were largely subjective and that there was no evidence of threats personally targeting the student applicants.
Likewise, the fears of blocking access to buildings were insufficient, because they arose from facts linked to other demonstrations and not to the one targeted. In short, there is nothing to indicate that the demonstrators intend to block access to University buildings and prevent students from taking their exams. The judge instead held that the demonstrators were working to protest against the war and were trying to put pressure on the University so that it would sever its ties with certain organizations.
Excessive ban
The judgment recalls that measures which limit freedom of expression must be carefully delineated. However, the requested order targeted nothing less than 154 buildings at McGill University and not only the area linked to the encampment on the lawns of the Sherbrooke Street campus. We asked for a ban on all demonstrations — regardless of the subject of such demonstration — within a distance of 100 meters from the entrances and exits of McGill University buildings. The judge considered that this would disproportionately restrict freedom of expression and peaceful assembly.
Rather than focusing on the sole fact that the demonstrations took place on University property, the judge took into account the mission of these institutions. These are places where freedom of expression and peaceful assembly must have significant weight. That divergent theses are defended there is not surprising, on the contrary. In a democratic society, it is difficult to imagine that the mere fact that a statement contradicts a belief can be enough to justify its ban.
This case illustrates how essential it is to distinguish between critical comments about a government’s actions and racism or anti-Semitism. This undermines demands by pressure groups for laws or regulations at universities or other institutions to adopt a broader definition of anti-Semitism. Associations seek to impose definitions of anti-Semitism or Islamophobia so broad that they would include criticism of the policies of the State of Israel or the Muslim religion. Defining such notions so broadly is incompatible with freedom of expression as it is understood in democratic societies.
If it is urgent to encourage frank discussion on controversial issues, it is obvious that it is not by preventively prohibiting the utterance of words that shock that we contribute to promoting exchanges within a democratic society . The lesson applies to all these groups of diverse tendencies who are quick to demand censorship of what bothers them, but who claim for themselves the right to exaggerate the failings of others.
Ultimately, the judge applies the rules that prevail when determining whether expressive activity can be punished. The mere fact that a statement, a drawing or a demonstration contradicts a belief is not a sufficient reason to prohibit it. If this precept were applied by decision-makers, they would refuse to act on all kinds of requests to censor comments or events on the grounds that it might arouse hatred or other perils. To sanction an activity protected by freedom of expression, more is needed than vague trials of intent.
Civility
In a democracy, we must promote respectful debates. In this spirit, the judge recalls “that exercising one’s freedom of expression in the […] respect for others and their perceptions, founded or not, while maintaining its message, is not prohibited.” We can add, however, that just because it is preferable for debates to take place in a civilized manner does not mean that we can prohibit an expressive activity simply because it is controversial. Civility must be cultivated, it must be encouraged, but it cannot be decreed.