Posted by: VPSN | April 15, 2011

City’s latest attempt to regulate political expression “highly problematic”

Petition table
Petition Table. Photo by BlueandWhiteArmy.

A few moments ago the VPSN submitted a follow-up letter Mayor and Council detailing our review of the latest report on regulating political speech.  Suffice it to say, despite some minor progress in removing the $1,000 deposit and $200 fees, the bulk of the City’s proposed amendments to the Street and Traffic bylaw are highly problematic. 

We produced a short parable this morning to explain in real terms what the proposed additions to the Bylaw will mean for street politics in Vancouver.  The following letter offers a response to the specifics of the amendments. 

There’s lots going on this weekend, but we encourage you all to take a few moments to read up on this issue.  It will be debated in front of Council on Tuesday morning (at the Planning & Environment meeting).  If you’re interested in speaking at this meeting you can find the instructions on how to do so here.  You can also find a useful comparison of the various bylaw changes that were proposed here.

Here’s the body of our letter to Council:

“[We] begin by noting, again, that we are extremely concerned about the rapid-fire way that this legislation is being drafted.  A first iteration was released on April 6, providing the public with barely 24 hours to review it prior to going to Council at the April 7 Planning and Environment meeting.  This latest version, building nominally on the feedback that was provided at that session, was released yesterday at 10:30am – providing a sum total of five days for response.  This is patently unacceptable and is being undertaken on the false premise that revised legislation has to be in place by April 19. 

As we noted in our previous letter the City has the option of requesting an extension from the Court of Appeal to resolve outstanding issues.  To this end we will make the same entreaty we did a few days ago: instruct your legal council to request an extension without further delay.  It will cost nothing, will build good faith in a process tainted with justifiable cynicism and, most importantly, allow for meaningful input to be gathered from stakeholders.

Our comments on the specifics of the bylaw are identified below. 

At the onset, I begin by noting that you have chosen to re-reframe the bylaw around the issue of ‘public political expression’ versus ‘non-commercial public expression.’  Our understanding from the April 6 report was that staff had found it difficult to articulate the boundaries of political expression and had, as a result, resorted to the broader “non-commercial” term.  The VPSN would like to request clarification on the rationale on this change, as well insight into any changes to (or refinements of) the City’s definition of political expression.  This will have important consequences for the application of the bylaw.

Before getting to our substantive concerns, I would also like to take this opportunity to note two positive improvements that have been made in the current amendments:

  • The removal of the $1,000 deposit and $200 in permit fees
  • The removal of the requirement for a transportation plan

These two items represent a move in the right direction. 

Beyond this, the latest amendments remain highly problematic and exclusionary, continue to marginalize legitimate forms of public political expression, and now insert a penalty structure for non-compliance that ranges between $1,000 and $5,000 (the sort of fine commonly associated with social problems like driving while impaired, bribery, and assault).

Rather than wade into the legalese of the document, let’s consider a few points about what the current bylaw amendments will have the potential to do.  As currently crafted, they will: 

  • unnecessarily conflate large protest structures (those which might realistically create an undue obstruction or safety issue) with smaller “structures, substances or objects” such as tables, chairs, props, display boards, knapsacks, boxes of leaflets, art supplies, banners (furled or unfurled), and a range of other items which may be used to facilitate political expression;
  • eliminate the possibility of people responding to the key ‘issues of the day’ in a nimble and timely fashion.  An issue that is “hot” deserves the opportunity for a petition table the same day, if need be.  The present requirements for a formal application process, construction drawings, and waivers, mean that an important opportunity for spontaneous response to key issues will be lost;   
  • eliminate the opportunity for facilitated political expression after 8pm, or in residentially zoned areas (other than immediately in front of a consulate).
  • disallow any “structure, object or substance” that is taller than 1.3 meters, or more than 1.6 metres wide, or more than 1.0 meter deep, or is larger than 1.6 square meters.  These figures represent significant reductions from the already onerous size ‘cut-off’ recommendations contained in the April 6 report.  These limitations would constrain the use of a range of banners, umbrellas and tables (including the standard six foot table used by City staff at outdoor events).

Needless to say, these are significant problems that will have a measurable impact in shutting down facilitated political expression in this city.  While it is true that other options exist (standing on your feet for several hours, clipboard in hand) these are options that are unduly limiting to political expression (particularly for the frail, the aged, younger people, persons with disabilities).  More to the point, they are onerous enough to take the application of this bylaw well outside of the realm of public safety and street access – the two areas wherein the City’s attention is legitimately warranted.

In addition to the points above, we would once again request that the City make the follow changes:

(1) Change the bylaw wording to reflect recognition of different sized structures, objects or substances.  The Street and Traffic bylaw should not attempt to legislate things like small petition tables, chairs, knapsacks, etc or many of the other items that are being at threat of being cinctured by the sweep of these proposed amendments.  Rather, the prime focus should be on ensuring larger structures are not unsafe and do not unduly block pedestrians flow.  Some size definitions are warranted, but we would submit that they are not those in the present document.

(2) Ensure structures for political expression do not unduly impede the use of public space.  In particular, affirm no structure of any size should unduly (a) obstruct pedestrian or vehicular traffic; (b) interfere with utilities; (c) and (d) interfere with the use of street furniture or other structures; (e) or interfere with City works.  But note that “unduly” should be defined in a way that is consistent with the allowances that the City makes for siting bus shelters, food carts, a-frame signs, newspaper boxes, etc.  (i.e. political messaging should be allowed reasonable placement within or adjacent to sidewalk space, but should not block pedestrians).  Recall that where free expression is concerned, some inconvenience may be “due”.  Insomuch as the issue of fines is concerned,  where structures do unduly impede public space ensure that the first line of response by the City is a verbal warning.

(3) Permit duration and renewal.  While we note that the revised amendments lengthen the amount of time allowed per permit from 30 to 60 days, this figure still appears to be arbitrary.  We recommend removing this provision all together.

(4) Locational considerations – safety at street side.  Ensure that large and small structures are placed in a safe location, and are structurally sound.  Maintain requirements around curb-to-structure distance, setbacks from building entrances, bus stops, street intersections, etc. but consider reducing the minimum setback from five metres to three meters.  Again, maintain requirements around sound construction, safe repair and emergencies.

(5) Locational considerations – zoning.  Eliminate the proposed Schedule F (p.6), which effectively eliminates political communication in residential zoned areas where no consulate exists.  Opportunities for facilitated political expression should be available in all zones in the city for a simple reason: political issues exist in every neighbourhood.

In closing, I note that the City seems comfortable with something they are terming a “pragmatic risk based” approach to bylaw enforcement.  As we understand it, this basically translates as “we may make a law but don’t necessarily enforce it.”  We would submit that this is an untenable position from which to initiate the creation of legislation as it tacitly endorses selective enforcement.  As a consequence, it has the potential to translate as “if we like you, you’re ok.  If not, you’re hooped.” 

Everyone understands that, for a variety of reasons, laws don’t always get enforced.   However, to make this your starting point suggests that something is seriously problematic.  If these proposed bylaw amendments are not worth enforcing – and in this case they’re most certainly not – then we would suggest that the City’s rationale for withdrawing them is already self evident.

As we stated in our first letter, part of what makes a city lively and desirable as a place to live is its spontaneity. The most exciting cities always have a sense of the unexpected about them, often flowing from political and artistic expression in public spaces.  The latest amendments continue to represent a significant over-reach as far as appropriate regulation is concerned.  We urge to take immediate steps to correct this situation.”

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