An Update for Members on the BC Federation of Students Intervention in Vancouver Island University’s Injunction Request Against the VIU Palestine Solidarity Encampment

On July 15, 2024, Vancouver Island University (VIU) commenced a civil action in the Supreme Court of British Columbia, seeking injunctive relief and damages from the VIU Palestine Solidarity Encampment (VIU PSE) participants. On August 15, 2024, after 107 days of protesting, the Court ordered that the encampment be removed within 72 hours and that no further encampments be established within the same area for 150 days.

However, an interlocutory injunction application represents an extraordinary request for the use of court power; in this case, VIU was seeking an overly broad order with terms that would restrict the freedoms of not only the group of protestors, but the entirety of the VIU campus community.

The British Columbia Federation of Students (BCFS) applauds the steps Justice Stephens’ took to narrow the far-reaching injunction sought by VIU.

Why Did the BC Federation of Students Intervene?

The BCFS has a long history of fighting for, and defending, the rights of students. We know that it is imperative and part of civic development for students to publicly express themselves on issues that they deem important, as well as to engage in open discourse at their post-secondary institutions, while having free access to their campus.

As part of our mission to protect and advocate for students, we filed a submission to the Court highlighting the alarming scope and gross overreach of the order VIU sought, and the University’s attempt to sidestep its own procedures in favour of the Court.

To be clear: the Federation does not and will never support the use of disciplinary proceedings by universities to target students for engaging in peaceful protest. But to the extent a university alleges, as VIU does, that students have breached university policies, those allegations should be tested in a proper forum, through the administrative procedures the institution has at its disposal.

As an organisation that represents more than 170,000 post-secondary students across B.C., including the students at VIU through the VIU Students’ Union (VIUSU), the BCFS was able to provide a unique student perspective that would have otherwise gone unheard at the injunction hearing. Specifically, our intervention highlighted that VIU’s response to the PSE must not come at the expense of all students, and the greater campus community.

The Federation’s Concerns: An Unjust Threat to Students’ Rights

This court hearing is of profound importance to students across British Columbia who value their ability to exercise fundamental freedoms on university campuses and expect that any administrative or legal response to exercising these freedoms will be fair, proportionate, and justified.

The injunction VIU was seeking would have had far-reaching and negative effects, limiting students’ freedom of expression and freedom of assembly.

Unjustly penalizing the entire campus community: The injunction requested by VIU applies to the defendants (PSE encampment participants) and anyone with knowledge of the order. This includes all students (given they have been notified of the order by email), as well as the faculty and many community members who could be expected to have knowledge of the order. With this in mind, it was of the utmost importance that any order granted be as specific and as narrow as possible.

A campus-wide curfew: The injunction sought by VIU proposed a ban on using, entering and gathering anywhere on campus between the hours of 11pm and 7am without authorization by the University. A campus-wide curfew is simply unacceptable for a post-secondary institution that is responsible for creating an inclusive, open and accessible community that fosters student dialogue.

Notably, the campus is also regularly used at night, including by the students who live on campus, those who wish to study at the library, which was previously open 24 hours and is currently open until midnight, and those who simply wish to use the outdoor space to exercise or hang out, among other things.

Restrictions on students’ rights to protest: The University also sought to have all protest activities on campus comply with all university policies. Seeking this type of control through the court is alarming.

The unique nature of university campuses— which provide an important venue for the pursuit of knowledge and acting on that knowledge, and where students’ attendance is linked in a profound way to their participation in democratic life and exercise of their freedoms as citizens—magnifies the chilling effects of such an order.

The order sought would have escalated a breach of a university policy beyond a potential disciplinary hearing to a criminal offence. Further, this would have also allowed VIU the ability to change the scope of the injunction order through its internal processes by adding or amending a policy at any time.

Erecting objects, structures and tents on campus: The injunction additionally sought to prevent students from erecting objects, tents or structures on campus without the University’s authorization, despite not having a specific policy in place outlining how authorization is given, and with the knowledge that student groups, including the Student Union and campus clubs regularly set up tables and tents as part of events they hold on campus year-round.

As the seeker of the injunction, especially one that seeks to ban forms of expression and assembly for an entire university campus, it was VIU’s duty to request a sufficiently precise order, and not to pursue collective punishment of the entire campus community. This action by VIU is part of a troubling pattern of behaviour for the Institution, which imposed mandatory ID checks and building lockdowns, in response to what it described as “peaceful and calm” student-led protest in early May (you can read more about this here).

The Federation strongly encourages the University to reflect on the damaging impacts that would have resulted from an overly broad, and ill-defined injunction. It is our hope that VIU will recommit to acting in the best interest of its students and its community to ensure that the campus is a place where the rights enshrined in the Charter are respected. Campuses must be accessible, inclusive, and safe spaces that uplift and prioritize the rights of all students.

A Victory for Students’ Rights

The Federation’s efforts intervening had a significant impact. On day one of the injunction hearing, VIU took steps to narrow the scope of their requested injunction, in response to the Federation’s arguments. This included changing the scope of the order to apply only to outdoor locations of the campus, and to exempt persons attending and going to or from the residences on campus from the proposed curfew.

This was a step in the right direction however, the real victory came in the judge’s consideration of the Federation’s submission. Justice Stephens agreed with our concerns noting that the orders sought by VIU were indeed "overly broad, vague and ambiguous". As a result, the court significantly narrowed the scope of the injunction.

• The order that sought to implement a campus-wide curfew between the hours of 11pm and 7am and requiring students to request permission to set up a tent or structure, was limited to apply only to the grass area in the quad where the encampment stood.
• The order that sought to apply all University policies to students’ rights to protest was not granted, on the basis that the judge found it inappropriate to include the University’s policies in the injunction.
• The judge refrained from granting the order directing the RCMP to enforce the injunction stating that the potential impact on the larger campus community was too great.
• The judge also limited the duration of the order – as no trial date has been set, the judge ruled that the injunction (and all of its orders) would expire after 150 days.

You can read the full order granted by Justice Stephens here. The caution used by Justice Stephens to ensure that the injunction granted was as narrow as possible is a nod to the weight and significance which must always be afforded to the rights of students in B.C. and across Canada.

Moving Forward: We Must Do Better for Students

We are hopeful that all institutions in the province learn from this – students’ rights cannot be trampled with impunity and must be respected.

The challenge of creating an inclusive, open, and safe campus environment while upholding freedom of expression is one that all post-secondary institutions must tackle head-on. It is essential that every student feel that the rights they enjoy outside of campus, are also there for them to enjoy at their places of learning.

This decision is a reminder that as students we must take a stand to protect our rights and ensure our voices are heard on issues that affect us, not only for ourselves, but for all students across the province and for the students that come after us.

We will continue fighting for a fair, safe and just academic environment for all.

In solidarity,

The BC Federation of Students

Helpful Terminology:

Interlocutory Injunction: An interlocutory injunction is a temporary court order from a judge that tells someone to do or stop doing something while a legal case is still ongoing. It's like a "pause button" to prevent harm or keep things stable while the case is still being decided.

Intervenor Status: Intervenor status allows a person or group who isn't the plaintiff or defendant of a legal case to participate in the case because they have a strong interest in its outcome. This is usually done to protect the rights or interests of persons that might be affected by the court's decision.

When someone is granted intervenor status, they can present arguments for the judge to consider, however intervenors cannot take a position on the outcome of the case, and must not challenge findings of fact, introduce new issues or expand the scope of the case. Despite the participation of interveners, the case remains a dispute between its parties.