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Joanna Baron: Sorry, Palestine protestors. You can’t just hold universities hostage forever

Commentary

A pro-Palestinian encampment set up at the University of Toronto is photographed in Toronto, May 23, 2024. Christopher Katsarov/The Canadian Press.

On June 20, a Windsor Law professor observing the hearing in the University of Toronto’s (UofT) injunction motion against Occupy UofT for Palestine tweeted: “The hearing today was [fire emoji]. Counsel played Rafaat’s poem in COURT. Palestinian advocacy is showing that lawyering is not just about arguing about technocratic technicalities & liberal ethics but can be subversive by centring the community’s radical justice discourse.”

It turns out that poetry readings in court, while cathartic, aren’t a particularly winning strategy for advocacy. After nearly two months of attempted negotiations, hand-wringing, and détente, Justice Koehnen of the Ontario Superior Court has granted UofT an injunction against Occupy UofT for Palestine, and the pro-Palestine encampment must dismantle or face consequences.

Justice Koehnen did not find that UofT had persuasively proven the worst of its insinuations against the encampment: he did not find there was evidence that the encampment was violent or antisemitic. There are reasons, though, to be skeptical of the judge’s conclusion. Guidelines posted at the entry to the encampment dictated that “All messaging should be pro-the right to resist,” which presumably encompasses the view that the October 7 pogroms were justified resistance.

The encampment was also widely decorated with inverted red triangles, evoking target symbols from the Al-Qassam Brigades’ radar footage indicating a human target about to be killed, as well as signs exhorting Zionists to go back to Poland. The protestors posted an image of UofT’s Jewish president depicted with contorted, bloody hands, evoking blood libel tropes. None of these examples rely on hearsay evidence to prove. Justice Koehnen waved these disturbing incidents away by calling the protestors “young idealists,” but I’m not sure their arrogance and ignorance ought to be countenanced.

Conversely, the judge found that speech directly outside the perimeter of the encampment, and clearly connected to its spectacle, “no doubt” rose to the level of hate speech. A small sampling of comments accepted into evidence included “[w]e need another holocost [sic]” written in chalk on sidewalks, “Death to the Jews, Hamas for Prime Minister,” “Itbach El Yahod” (”slaughter the Jews”), and “You dirty f*cking Jew. Go back to Europe.” Even if none of these statements were attributable to encampment residents, as the judge found, it’s clear the encampment had become a moral hazard and the university properly had a reasonable basis to act to curtail it.

Ultimately, though, it was not the abhorrent speech that formed the basis for the decision. Justice Koehnen decided to grant UofT an injunction on the basis of property rights and under the ordinary statutory power of the Trespass to Property Act. Protestors, without lawful excuse or permission, appropriated the university’s front campus and prevented others from accessing it, whether for their own expressive purposes or simply to enjoy the beautiful enclosed green space surrounded by the majestic stones of Convocation Hall, Knox College, and University College in the centre of downtown Toronto that is King’s College Circle.

Evidence showed that the protestors had implemented a gate marshal system whereby encampment representatives screened would-be visitors, asking them where they were from and how they heard about the encampment. This policy was allegedly to reduce the risk of altercations by screening out visitors who were judged to be adversarial, but UofT argued, and Justice Koehnen agreed, that this begged the question of why UofT could not enforce its own standards and rules to prevent violence on its own campus if a group of interlopers could. Indeed, permitting protestors to seize the front campus by some sort of adverse possession would set a precedent for allowing what Justice Koehnen called a “brutal free-for-all” where no principle could prevent a stronger group from coming and deciding to seize the area for themselves.

The protesters argued that the considerations under the Trespass Act did not apply where the property in question was public property or where there were free expression issues. The judge rejected both claims: UofT was the legal title holder of King’s College Circle, and no legal precedent could establish a claim where a court allowed someone to appropriate either public or private property for extended periods of time in order to exercise the rights of expression.

The legal test for granting an injunction requires the judge to determine the “balance of convenience,” comparing the harm likely to be suffered by the university with that of the protestors. In this case, since an order requiring the protestors to leave between 11 p.m. and 7 a.m. and refrain from camping would still permit them to freely protest on campus, the judge found the balance of convenience favoured the university even if the Charter right to freedom of expression and freedom of assembly were to apply.

But does the Charter apply? The Supreme Court has said that the mere fact that an institution performs a “public function” will not be sufficient to bring it within the scope of “government” and thus Charter applicability. The Court found in its 1990 decision McKinney v Guelph that universities—at least in Ontario—are not state actors, since they are legally autonomous, each with its own governing body and managing its own affairs. The key to whether the Charter applies to a given institution is whether the government exercises effective control over that institution or a particular policy it is implementing.

In the current cycle of the culture wars, many progressives are clamouring for the Charter to apply to universities to cloak the pro-Palestine encampments in the rights to peaceful assembly and free speech, over and above whatever property rights or other functions of university space the institution might claim. Lawyers for the encampment called the university quad a “quintessentially public space.”

Ironically, it was just a few years ago at the zenith of “peak woke” that it was conservatives and free-speech fundamentalists arguing for free-speech protections to extend to universities to fight back against disinvitations and predatory investigations. Treating universities as government institutions raises concerns about academic freedom, but freedom of expression and assembly are important values that ought to be upheld on campus regardless of whether the Charter applies.

Justice Koehnen found that although he considered the competing interests of the parties taking into account “Charter values,” a notoriously woolly term, the Charter itself did not apply to the university. In the alternative, if he was wrong and the Charter did apply, the university’s request for an injunction constituted a reasonable limit on the protestors’ rights, particularly because the protestors were still permitted to gather and protest on campus freely, with the caveat of not protesting between 11 p.m. and 7 a.m. and not occupying campus. And in any event, a Charter claim could not surpass a strong prima facie case of trespass.

Indeed, the encampment had the effect of undermining the free speech rights of everyone besides its residents. Justice Koehnen noted that the university “is not preventing the protestors from expressing their views on campus; it is preventing the protestors from silencing other voices on Front Campus.”

UofT claimed, and Justice Koehnen agreed, that the encampment was preventing not just counter-protestors but ordinary members of the community from accessing Front Campus simply to eat breakfast in its green space (breakfast, because the encampment only allowed screened visitors after 11 am). The protestors and their lawyers took great offence at the transposition of merely eating breakfast with the imperative of ending the war in Gaza.

Indeed, the encampment’s righteous indignation hung like a spectre over the entire hearing, as though their cause and moral clarity should allow them to supersede property rights, reasonable limits on expression, the interests of others in the university community, and even the need for their fellow students to get some sleep.

But the war in Gaza is unlikely to end due to divestment policies of a Canadian university. And in any event, liberal democracy emphatically does not allow one person’s moral claim to extend so far as to override the rule of law or legitimate needs of others. As the judge wrote, paraphrasing John Stuart Mill: “People who want to eat breakfast can eat breakfast. People who want to protest can protest [..] as much liberty as possible so long as one person’s liberty does not unreasonably infringe on the liberty of others.”

What’s next? Justice Koehnen gave Occupy a deadline of 6 p.m. Wednesday to dismantle the encampment or face sanctions including prosecution for trespass, contempt of court, and university disciplinary sanctions. It seems like they have, so far, complied. UofT Occupy for Palestine characterized this on X as granting the university administration “the immoral license to unleash police violence against its own community.”

One hopes they proceed with caution, but the Toronto Police Service, who previously claimed they would not take physical enforcement measurements without a court order, has announced they will enforce the court’s order. The administrations of other universities including Western and Waterloo, managing their own encampments, are surely carefully reviewing the decision and assessing their next steps accordingly. The strategy of effectively holding universities ransom has definitively and rightly failed so it’s time for protestors to move on.

Malcolm Jolley: What is rosé anyway?

Commentary

A woman serves a glass of rose wine during a wine-tasting in Pamplona,Spain, May 19, 2018. Alvaro Barrientos/AP Photo.

Rosé is a term of art, not science. It refers more to a style of making wine than a thing. A working definition might be that rosé is red wine made like white wine. Or, a more basic one could be that it’s any wine that’s closer to being pink than red in colour, however it’s been made.

There’s no crucible that distinguishes, for instance, a very light red wine from a particularly dark rosé. Nor is there a particular technique that makes rosé. Counter-intuitively, rosé is almost never made from blending white and red wines. (Champagne and other pink sparkling wines being the exception to this rule.)

Colour in wine comes from the skins, and so can much flavour. This is especially true of red wines. Thick-skinned grapes, like Cabernet Sauvignon, make darker wines, while thinner-skinned grapes like Pinot Noir, make lighter reds. Most rosé production involves limiting the amount of time the juice of pressed grapes keeps in contact with the skins out of which it was squeezed.

Before global warming, where even the South of France could have a cool summer, winemakers used the saignée method to concentrate red wines made from fruit that was not fully ripe. Saignée means to bleed, and the share of the “must” or juice from crushed grapes was bled out of whatever was being used to ferment the the wine. What was left was a higher ratio of skins to juice resulting in a darker, more concentrated wine.

The byproduct—the juice that was bled—wouldn’t go to waste and a simple pink wine, meant to be drunk young without much ceremony, would be made from it. When exactly rosé wine began to be made entirely for its own sake is a matter of conjecture, and goes back to the question of what exactly is rosé.

There are lots of historical records of red wines being praised for their light and refreshing character. Assuming the wines were made like this on purpose, their makers would have limited skin contact with the must as it was set to ferment. Picked in the fall these lighter wines would be ready to drink by the arrival of warm weather in the new year.

Rosé didn’t become a distinctive consumer product until the age of commercialism in the 19th century. The appellation of Tavel in the South of France, which only makes rosé, was not formally established until 1936. And the process of recategorizing traditional light reds into modern rosé continues today wherever wine is made to meet consumer demand.

Maybe the definition is more metaphysical and lies in intent. It’s rosé if you want it to be.

I want it to be rosé in the summertime. Yes, there’s no law that says rosé can’t be drunk après ski. I spent a few fun days of January in and around the town of Tavel happily drinking only rosé at lunch and dinner. But the pleasure of a cool glass of refreshing and fruity pink wine at the beginning of a warm July evening is rosé’s true natural habitat.

Since it is generally an uncomplicated drink, rosé in summertime pairs well with a bounty of fresh vegetables that come to the table. It gets out of the way in a way that a powerful and tannic red or a highly acidic white wine often can’t. It also makes a terrific aperitif that can stand on its own, or as a party wine that doesn’t distract from conversation.

Lately, the trend is for rosé made with minimal skin contact, which results in a wine that has the colour of what the French call œil-de-perdrix: eye of the partridge. This “pink eye” wine might also be described as lightly salmon coloured. Sometimes, I find these wines come closer to whites, which is fine (I like white wine) but I think somewhat defeats the purpose.

The character of a rosé that has been left on the skins long enough to acquire rosy character are the notes of red fruit. Strawberry is the rosé trademark flavour, not least because it’s very rare to be found in any other style of wine. Wine is fruit juice in which the sugar has been replaced with alcohol, but red fruit notes can momentarily trick the palate into perceiving sweetness that balances acidity, making a drink that is both refreshing and round in the mouth.

Rosé on the pink or lighter side of the colour spectrum is not expensive to make and so it shouldn’t be expensive to buy. It does not require costly inputs like new oak barrels or intense hand labour or a lot of time and attention in the cellar. Indeed, rosé is often made from the fruit of younger or otherwise less desirable vines that may not be ready for elevated red winemaking.

If you’re paying more than $20 for a bottle of rosé, then it’s likely that the extra costs have more to do with branding and marketing than making the wine. There are always exceptions to any rule in the world of wine (Canadian wines almost always cost more to make than imports), but the surge in popularity of rosé in the last 25 years has, in my opinion, led to some questionable pricing. I suspect most $30 bottles of rosé would be indistinguishable from $15 ones in a blind tasting.

Back to the metaphysics of rosé: its simplicity and affordability truly are features and not bugs. And I think they largely explain its popularity. The offer of a glass of pink wine suggests one has arrived at a place where one can relax. It can be enjoyed without too much thought.

The summers in this country are short and Canadians share a common desire to make the most of them. Maybe a glass of rosé is a reminder to enjoy the moment and take a breather before the serious stuff starts again.