Georgia Straight faces new ban in the City of New Westminster

Vancouver media lawyer David F. Sutherland says that the City of New Westminster has "very likely" violated the Canadian Charter of Rights and Freedoms by banning news boxes carrying free newspapers in its downtown core. In a phone interview with the Georgia Straight, Sutherland claimed that any affected publisher or citizen might succeed with a legal challenge against the ban, which takes effect on January 1.

"There is a constitutional right, not only in the newspaper to distribute by traditional means in public space, but also on the part of readers to receive it in that way," he said.

New Westminster council approved a staff recommendation earlier this month to impose the ban as part of a series of measures to address "livability and enforcement issues". This restriction is somewhat less onerous than an outright ban imposed on the Georgia Straight almost 40 years ago by the same municipal government–a ban that was successfully challenged by then- and current publisher Dan McLeod.

The council's decision comes as speculation is rife about an impending federal election. In previous federal elections, the ridings of Burnaby–New Westminster and New Westminster–Coquitlam were two of the most closely fought battlegrounds in the province. In 2004, NDP candidate Peter Julian won the Burnaby–New Westminster seat by 329 votes; the same year, Conservative Paul Forseth won by an even narrower margin, 113 votes, in neighbouring New Westminster–Coquitlam (and then lost to the NDP's Dawn Black in 2006).

Section 2(b) of the Canadian Charter of Rights and Freedoms guarantees freedom of the press and other media of communication. Sutherland said that under Section 24 of the charter, anyone whose constitutional rights have been infringed or denied by council's decision can obtain a financial remedy in court.

"If it is a traditional method of communication in public space, there are a number of Supreme Court of Canada decisions that indicate this rule will run afoul of Section 2(b) of the charter," Sutherland insisted.

New Westminster's manager of licensing and inspections, Keith Coueffin, told the Straight in a phone interview that the downtown area is experiencing litter problems, drug activity, and problems associated with homelessness. "And we're finding that we're really having challenges with litter and garbage, and that the boxes are contributing to those problems," he said. "We're finding in this particular geographic area, it's just not working. So we have got direction from council to discontinue their use in our downtown area."

The Canadian Charter of Rights and Freedoms allows "reasonable limits prescribed by law" as long as they can be "demonstrably justified in a free and democratic society". Sutherland said that the city would have to demonstrate there was a "real and pressing need" behind the ban. In addition, the ban would need to impair a constitutional right to a "minimum extent" necessary to achieve that objective; there would have to be a "rational connection between the rule and the objective"; and the benefit of the ban would have to exceed the detrimental effects.

Coueffin also said that he didn't think it was necessary to contact publishers before advancing this recommendation to council. He claimed that free newspapers are still available in boxes at two SkyTrain stations in the downtown core. Newspapers are also distributed by businesses on private property.

"We feel there is ample opportunity for companies to disseminate their newspapers," Coueffin said.

The Straight's director of operations and circulation, Nick Collier, said there are more than 20 Georgia Straight news boxes in the area affected by the ban. He noted that stores on private property could be closed when people want to pick up a paper. "Newspaper boxes are a public service," Collier said. "It's an outrage."

Collier said that he has never seen another municipality in the region act this way. He cited the District of North Vancouver, the City of North Vancouver, and the City of Vancouver as three examples of cities that contact the company if there are concerns about graffiti or litter.

"Our boxes are serviced weekly," Collier said. "I was out there myself helping to restock the Best of Vancouver issue. The four boxes that I checked in the 6th [Avenue] and 6th [Street] area [of New Westminster]–there was no graffiti; there was no mess."

New Westminster mayor Wayne Wright did not return the Straight's call. Coun. Calvin Donnelly told the Straight, "If somebody could come forward with some good reasons how we can deal with it in a better way, I'm sure we would have an open enough mind to take a look at it again."

New Westminster NDP MLA Chuck Puchmayr told the Straight that he worries the city could expand the area affected by the ban. New Westminster–Coquitlam NDP MP Dawn Black told the Straight that she "understands" council's position regarding litter, but she also thinks it's important to have an "educated and informed public".

"I think council will probably reexamine this," Black said.

Burnaby–New Westminster MP Peter Julian told the Straight that he also understands council's concerns about the downtown core, but said the problem is the "chain freebies" and not the independent papers, such as the Straight. "You've got an excellent news and entertainment weekly that provides information that people aren't going to get in the big chains," Julian said. "That's my concern. If you're diminishing or eliminating ways that the Georgia Straight can get out, then the types of issues that the Georgia Straight will cover and other independent papers will cover–that aren't covered by the chains–that source of information is no longer available to the public."

Collier claimed that it is "discriminatory" to ban only the boxes with free newspapers, suggesting this benefits the Vancouver Sun and the Province, which are owned by CanWest Global Communications Corp. According to the Newspaper Audience Databank Inc., the percentage of adults picking up each of these two CanWest local daily papers over the previous five days had dropped in a September 2007 report as compared to percentages listed in a March 2007 report. CanWest also owns the Royal City Record community paper.

For the Sun, the five-day cumulative readership was 44 percent in the March report, compared with 43 in September. For the Province, the percentages fell from 45 to 43. That translates into thousands of lost readers, though NADbank didn't provide precise figures in its September report.

The Vancouver Sun and the Province supported the federal Conservatives in editorials before the last federal election. Coueffin said there was no consideration given to the impact that the ban could have on the federal election. "I guess I'm too naive to think of these things," he quipped.

Almost 40 years ago, the City of New Westminster banned the Straight across the entire municipality. In a piece from the summer of 1968, Straight publisher McLeod wrote: "Last Friday I decided to brave the ban on Georgia Straight on the streets of New Westminster imposed by the local Gestapo. Armed with a hundred copies of the last issue, I stood on a corner on Columbia Street until they were all gone."

McLeod stated in the article that he was approached on the street by a police officer who asked if he knew it was "illegal" to display papers. McLeod rejected that contention: "The point that it is legal to sell papers on the street even without a city licence derives from our Canadian Bill of Rights and so-called freedom of the press. This point will eventually have to be established in the courts. This is not what I was trying to do on Friday."