The public should be alarmed whenever a city’s police department or senior civic bureaucrats appear blasé about any aspect of the Canadian Charter of Rights and Freedoms.
It’s a major concern if they don’t respect equal rights in the charter. There is reason to worry if they don’t acknowledge that citizens have the right to life, liberty, and security of the person, as guaranteed in the charter.
The same is true if bureaucrats and police fail to appreciate the charter right to freedom of expression, including freedom of the media. Whenever these and other sections of the charter are pooh-poohed, it’s a slippery slope to tyranny.
Last week, the City of Vancouver issued an order to remove newspaper boxes across significant areas of the city in advance of the April 16 Vaisakhi parade, Vancouver Sun Run, and the 4/20 marijuana celebration. This is in spite of Section 2(b) of the charter, which guarantees freedom of expression to publishers.
The entire Vaisakhi parade route, on the southeast side of Vancouver, was off-limits for any publisher’s boxes. Sure, the city allowed them to be moved 50 metres, but only if they were in front of commercial frontage. The event mostly takes place in single-family areas, rendering this caveat meaningless.
For the April 17 Vancouver Sun Run, the city banned newspaper boxes in 27 downtown blocks bounded by Richards, Dunsmuir, Bute, and Robson streets. Participants went along Georgia Street, so they weren’t actually running on Richards or Robson or Dunsmuir. The initial notice also prohibited boxes in the same area for 4/20, as well as in areas of the West End near English Bay.
In a phone interview with the Georgia Straight, Vancouver media lawyer Alan McConchie said he infers that the reason for the order is security in the wake of terrorist attacks in Brussels and Paris. But he expressed concern over the city’s decision to prohibit boxes in this area of the downtown over an eight-day period when the Vancouver Sun Run and 4/20 were single-day events. And he also questioned the geographic scope.
“It does seem to be overly broad on a first glance,” McConchie said. “If there’s no rational justification to remove boxes from certain geographies that are not in the area of concern or next to them—if it’s in the middle of the city, some 15-minute walk from any area of concern—I don’t see the rationale.”
We like to think of it as using a sledgehammer when a scalpel might do the trick. This sweeping order—never before imposed for Vaisakhi and the Vancouver Sun Run—occurred even though police readily acknowledged that there were no threats. It raises intriguing legal questions in light of a 1989 decision in the Supreme Court of Canada on the charter’s Section 2(b).
“Whether political, religious, artistic or commercial, freedom of expression should not be suppressed except where urgent and compelling reasons exist and then only to the extent and for the time necessary for the protection of the community,” the court ruled in the Irwin Toy case.
The order banning newspaper boxes for the Vancouver Sun Run lasted for eight days even though the event took place only on a single day. That’s because city officials wanted to keep the publications off many downtown streets for the 4/20 event three days later as well.
This hardly meets the Supreme Court of Canada’s instructions that charter infringements occur only “for the time necessary”.
There were also no demonstrable “urgent and compelling reasons” for this action over this length of time because the VPD had assured us that there were no threats. But, hey, who in the city engineering department is in the business of reading Supreme Court of Canada rulings? They’re too busy hauling away newspaper boxes.
In the 1991 Committee for the Commonwealth of Canada decision, the Supreme Court of Canada ruled that the government’s “right of ownership” cannot justify infringing on Section 2(b) of the charter.
“Freedom of expression, while it does not encompass the right to use any and all government property for purposes of disseminating views on public matters, does include the right to use streets and parks which are dedicated to the use of the public, subject to reasonable limitation to ensure their continued use for the purposes to which they are dedicated,” the court stated.
In New York City, where there has actually been a massive terrorist attack, the circulation manager of the Village Voice, Matt Barbey, told the Straight that municipal officials allow publishers to place boxes “pretty much everywhere”. Exceptions are beside municipal construction projects or for a major event like the Macy’s Thanksgiving Day Parade, but even then, the city pays to pick them up and to return the boxes to their original locations. According to Barbey, there’s been no change to the rules since terrorist attacks in Brussels and Paris.
In 1988, the U.S. Supreme Court struck down a city ordinance giving a mayor complete authority to determine the placement of news racks in Lakewood, Ohio. Here in Vancouver, city officials impose strict restrictions on where newspaper boxes may be located. It’s worth noting that the Georgia Straight paid the City of Vancouver $53,000 in licensing fees last year to put newspaper boxes on sidewalks.
Meanwhile, TransLink has not offered any urgent and compelling reasons for its decision to kick out more than 30 publications’ boxes from SkyTrain stations on April 1. Once again, there was no consultation with the Straight in advance of this decision. The regional transportation authority has promised to offer a request for proposals to the publications to get back into stations under new terms and conditions. But it still makes no sense that TransLink would banish newspaper boxes as it is working out its new approach.
TransLink is already a two-time loser in the courts when it comes to suppressing free expression. In 2001, a B.C. Supreme Court judge ruled that TransLink had no right to arrest Burnaby resident Ron Churchill for distributing political leaflets at Edmonds Station. In the second loss, the Supreme Court of Canada censured TransLink in 2009 for refusing to accept ads on buses from the Canadian Federation of Students and the B.C. Teachers’ Federation.
In the Canadian Federation of Students case, the Supreme Court of Canada stated that TransLink’s actions did “not constitute a minimal impairment of freedom of expression”. Furthermore, the court ruled that in exercising its control, TransLink “failed to minimize the impairment of political speech, which is at the core of s. 2(b) protection”.
The city’s actions are reminiscent of those of a former mayor, Tom Campbell, who tried to prevent distribution of the Straight in the 1960s. The publisher, Dan McLeod, was repeatedly harassed by police for trying to get the paper into the hands of readers.
At the time, the then justice minister, Pierre Trudeau, sent one of his department’s lawyers from Ottawa to defend the Straight’s legal right to free expression in court. Unfortunately for newspaper lovers, there are no Pierre Trudeaus in the city bureaucracy these days.
The courts, however, have offered plenty of direction. More than two decades ago, the City of Peterborough introduced a bylaw prohibiting all postering on public property. In a unanimous 1993 decision, the Supreme Court of Canada ruled that this ban “did not restrict expression as little as is reasonably possible”. So the bylaw was tossed aside.
Nor did the City of Vancouver restrict freedom of expression “as little as is reasonably possible” in its recent muzzling of the publishing industry.
It’s not the first time this has occurred. In 2011, during the Occupy protest outside the Vancouver Art Gallery, the city sent trucks out and seized news boxes across a significant part of the downtown. With no notice!
This month, publishers received 36 hours’ notice, but there was no consultation in advance.
So why should the public care? If there are no newspaper boxes over a 27-block section of the downtown for eight days, it stifles public discourse from a variety of media outlets and interferes with opportunities to learn more about what is going on in the city.
The police superintendent who drove the newspaper-box removals told the Straight that public-safety considerations were paramount, including preventing boxes being used as projectiles or as storage sites for weapons or explosives. A senior city official echoed the VPD’s concerns.
It’s time for a reality check. If someone were hiding weapons in one of our boxes, the first person who went for a newspaper would come across this—and, one would expect, would report this to the police. Besides, there are far better places in the downtown core to store Uzis, including garbage bins in alleys or on sidewalks, for anyone planning to get into a shootout at the next Vancouver Sun Run.
Let’s look at the record regarding urban explosives. There have been no reported cases of terrorist attacks in North America through the bombing of newspaper boxes. But the Front de libération du Québec did put a bomb in an Ottawa mailbox in the 1960s, yet mailboxes remained along the Vaisakhi and Vancouver Sun Run routes (despite the VPD’s claim that they were going to be removed). There were also 16 open garbage cans along Robson between Thurlow and Hornby streets during the Vancouver Sun Run. Multiple-publication news racks owned by a city contractor remained on Alberni and Robson streets during the Vancouver Sun Run, ready to be opened at a moment’s notice. So much for giving publishers equal treatment.
During the 1996 Olympics, a bomb was placed under a park bench in Atlanta. So did the VPD order the city’s contractor to remove benches around the Vaisakhi parade or the Vancouver Sun Run? Nope.
At the 2013 Boston Marathon, terrorist bombs were placed in knapsacks. There were no bans on duffel bags, fanny packs, or purses at Vaisakhi or the Vancouver Sun Run. Frankly, a metal box could render a bomb less effective, which is likely why terrorists prefer park benches, pressure cookers, and backpacks.
But wait a second. What about all those portable toilets? Why aren’t they being removed? The VPD claimed that they were going to be “staffed” at Vaisakhi, unlike newspaper boxes. However, when we investigated, we saw people walking in and out of them without anyone paying attention. The same was true at the Vancouver Sun Run.
Police also cited the free movement of people on the streets without fear of bumping into newspaper boxes. The last time we checked, the Supreme Court of Canada did not include this on its checklist of reasons why municipal officials can infringe on a charter right.
The recent actions by police, the city, and TransLink trouble David Eby, the NDP MLA for Vancouver–Point Grey.
“The independent voices that we have in our city, like the Straight and other free publications that distribute in this way, really feel it when those boxes are taken away,” Eby told the Straight at Vaisakhi. “I would strongly encourage the city and TransLink to work closely with these publications to prevent damage to them. They’re a really vital part of our community. I’m really disappointed that this is happening.”
We couldn’t have said it better ourselves.