By LILA SARICK
An independent review by a former Supreme Court of Canada judge on a violent clash at York University last November recommends that the university clarify the limits of free speech and legitimate protest, beef up its security policies, and give campus police expanded powers.
The 81-page report, authored by former high court justice Thomas Cromwell and released June 2, examined the events of Nov. 20, 2019, when Students Against Israeli Apartheid (SAIA) confronted pro-Israel supporters at a program sponsored by Herut Canada that brought Israel Defense Forces (IDF) reservists to York.
“Even a casual look at the extensive video of the event shows what a dangerous situation existed in Vari Hall that evening,” Cromwell’s report states. “The video shows verbal and physical altercations. York Federation of Students marshals, York security officers and TPS (Toronto Police Services) officers are shown acting as physical barriers between event supporters and protestors.”
Cromwell was asked by York president Rhonda Lenton to examine the university’s policies on freedom of speech, how it provided space for student events, and security arrangements.
Cromwell interviewed 22 groups and individuals and received nine written submissions. The York Federation of Students did not participate in the review, despite being sent emails, voicemails and a hand-delivered letter, he noted.
Lenton said the university is committed to implementing all 41 of Cromwell’s recommendation within 12 months, with many ready to roll out when school starts in September.
“The most important piece of the document is that it helps universities understand the limits to freedom of speech. It was very helpful that Cromwell was trying to understand the unique characteristics of the university,” Lenton said in an exclusive interview with the CJR.
“You get people referring to (speech) and asking has it broken the law. Inciting hatred is a very high bar, if that’s the only bar, you cannot rely on that legal bar, you must create additional conditions that allow the university to function,” she said.
“Our goal is to allow our community to debate and have vigorous conversation, but in a safe, civil environment,” Lenton continued. “You can vehemently disagree with a position but this name-calling and heckling should not be acceptable because then students don’t feel safe to express their own views.”
Among York’s first tasks will be to clearly define acceptable speech, what constitutes discrimination and harassment, and the consequences for violating the university’s codes, Lenton said.
“If you keep it theoretical and argue how to define freedom of speech without specifics, it is very difficult to implement,” she said. “We need clarity on policy and definitions: how does the university define freedom of speech and what will be tolerated.”
The university also needs to establish a transparent response if groups do not adhere to the policies. “These procedures will help us keep the university a safe place,” Lenton said.
The third element of Cromwell’s report refers to education and training for student leaders about the limits of free speech and what constitutes racism and discrimination.
York has “tremendous success” with faculty teaching controversial subjects, and has student groups that encourage building bridges in the diverse university community, Lenton said. “We want to build on those positive measures.”
While the report did not specifically address antisemitism on campus, Lenton, who is Jewish, acknowledged that the Jewish community has specific concerns.
In a two-page letter accompanying the report, she wrote, “We want to speak directly to the Jewish community for a moment. We have heard your serious concerns and know that we have work to do…. We cannot police the beliefs of our community members, but we can strengthen our policies and procedures to protect our community from abhorrent views and actions.”
In the CJR interview, Lenton said: “I want the Jewish community not to feel that antisemitism will get lost in this broader focus on freedom of speech. It will not.”
Late last year, both Herut Canada and SAIA were temporarily suspended from York, but the groups will not face any further discipline, Lenton said, acknowledging that “this will be a challenge for those who feel further actions were warranted.”
Cromwell’s report exposes the frustrations that student groups and the larger community have had with York’s handling of divisive issues.
“My review revealed deep concern about the university’s ability to address conduct that was viewed as constituting racism, discrimination and harassment,” Cromwell wrote.
Cromwell referenced a submission from B’nai Brith Canada, which said SAIA had a “long history of fomenting anti-Israel disruptions on campus.” The Canadian-Arab Anti-Discrimination Committee urged Cromwell to “investigate and note the discrimination, or at least inadequate regard for the concern, rights and security of students protesting the event.”
Among Cromwell’s recommendations are for York to develop clear definitions of what constitutes racism, discrimination and harassment, especially in relation to extra-curricular activities and to follow the model of other universities and create a unified complaint process, a “one-stop shop” to adjudicate complaints.
On the topic of free speech, Cromwell wrote that speech cannot be restricted simply because it is offensive. However, the university needs to clarify and provide practical examples, that “expression that takes the form of violence, threats of violence, hate speech and/or discriminatory conduct…is not permissible on campus.”
Similarly, peaceful protest is permitted, but protesters cannot physically block an event and not all university property is available for protests, he wrote.
At the Nov. 20 event, “there were a number of behaviours that impeded the Herut event and therefore exceeded the bounds of free expressions through protest,” Cromwell wrote, citing protesters who banged on the walls of the auditorium where the event was taking place and used loudspeakers near the hall.
The university also needs to establish clear guidelines about when an event should be cancelled or postponed because of concerns the speaker will “exceed the limits of free expression” or the event carries a risk of personal injury.
Among the security measures Cromwell recommends are providing designated protest zones and if necessary, restricting attendance to members of the university or to those who have pre-registered.
“Volunteer security” should be explicitly prohibited, the report said. Herut Canada had said it recruited Jewish motorcycle groups and the Jewish Defence League for security assistance at the November event. In early March, York banned JDL Canada director Meir Weinstein from its campuses “for any reason whatsoever.”
York should also consider training some of its security staff as special constables, which would give them greater authority to remove people from campus, an idea that Lenton said she would endorse.
Cromwell’s report identified numerous loopholes and gaps in the university’s policies, including practical concerns, such as how space was booked by groups, how security risks were analyzed and who should bear the cost of security for controversial speakers.
Cromwell is clear that imposing security costs on the organizers of an event that may attract protesters is “highly problematic from a free expression perspective.”
However, he noted that especially in the United States, universities have been exploited by controversial speakers who see the schools as prestigious and inexpensive venues.
Cromwell recommends that York establish a budget for extra-curricular event security. When the budget is exhausted for the year, the university can refuse to hold additional events.
UPDATE: In a statement, Barbara Bank, Toronto chair of the Centre for Israel and Jewish Affairs, thanked Lenton “for recognizing that York University is not immune from antisemitism, and her commitment to strengthen university policies and procedures to protect the campus community from abhorrent views and actions.”