Legal Tremors in the Lead-Up to Vancouver’s 2010 Winter Olympic Games
Panel, 2:15 – 3:30 pm, Friday, 26 February 2010
Recover – Renew – Reimagine
28th Annual Public Interest Environmental Law Conference
February 25 – 28, 2010
University of Oregon School of Law
“Security won’t be the story during 2010. And we’ve
done everything we can to make sure the Games are about the sport.”
— Bud Mercer, Chief Operating Officer, Vancouver 2010 Integrated
Service Unit (January 2010)
Riot Cops Attack Call
(Vancouver, B.C. – Robson Street West of Jervis Street
– About 11:15 am on 13 February 2010)
“The IOC is not privy to the details of the security budget for
reasons of confidentiality. But let me say that security investments
always leave a good legacy of security for the country. Security is
not only there for 17 days of competition.”
— Jacques Rogge, president of International Olympic Committee
Police Detain Supporters of Jailed Anti-Olympic Protesters
(Vancouver, B.C. – Seymour Street South of Georgia Street
– About 5:15 pm on 13 February 2010)
The Contracts
Olympic Charter
Rule 51 – Advertising, Demonstrations, Propaganda (p. 98 / pdf 99)
3. No kind of demonstration or political, religious or racial
propaganda is permitted in any Olympic sites, venues or other
areas.
Host City Contract (2002)
Section 47 – Propaganda, Advertising and Other Commercial
Activities at Venues (p. 23-24 / pdf 26-27)
The City, the NOC and the OCOG shall ensure that the provisions of
the Olympic Charter relating to propaganda and advertising are
strictly observed. … The City, the NOC and the OCOG shall ensure
that no propaganda or advertising is placed within the Olympic venues
or outside the Olympic venues in such a manner so as to be within the
view of the television cameras covering the sports at the Games or of the
spectators watching the sports at the Games. … All
appropriate controls to the effect referred to above shall be put
into place as soon as possible after the formation of the OCOG but,
in any event not later than one year after the formation of the
OCOG.
22 January 2009
Vancouver City Council put a
request
to the Province of British Columbia for 16 alterations to the
Vancouver Charter.
This proposed amendment was defeated by a large majority:
THAT the following be added to the motion:
i) THAT Council direct staff to include a direction to the Province
that we ensure these amendments are covered by the Canadian Charter
of Rights and Freedoms to protect the freedom of speech of its
citizens.
ii) THAT we direct the Province to limit this to the duration of the
Olympics.
February 2009
The City of Vancouver’s
Inventory of the Inner City Inclusive Commitments
stated this
“operating guideline” for the Vancouver Police Department:
There will be designated protest zones for groups or individuals
that wish to lawfully demonstrate in support of their views or
opinions. In keeping with the provisions of the Criminal Code of
Canada, demonstrators will not be permitted to interfere with other
people’s ability to enjoy the Games. (p. 9)
7 and 9 July 2009
Speaking to Vancouver City Council on July 7, V2010-ISU head Bud
Mercer referred to plans for free speech zones for protesters.
At City Council on July 9 Mayor Gregor Robertson declared: “Vancouver
is a free speech zone.” After that, V2010-ISU shifted their terminology
to safe assembly area, the heading currently used on their web site.
23 July 2009
At the Council meeting where the
first omnibus Olympic bylaw
was passed, a defensive Councillor Geoff Meggs asserted Council’s
good intentions, saying that critics simply should trust them to do the
right thing, no matter how vague and unbridled their powers.
~ Civil Liberties Advisory Council
Council minutes for July 23 record thirteen speakers to the bylaw,
“all of whom expressed concern.” The most striking point
to emerge in Council discussion was that the bylaw had received no input
from the City’s own Civil Liberties Advisory Committee. The motion as
finally worded by Councillor Geoff Meggs consequently called for
inviting a strange retroactive review:
FURTHER THAT the Civil Liberties Advisory Committee be invited
to review and comment on the 2010 Olympic By-law changes to ensure
implementation respects the Charter of Rights and Freedoms.
~ Promoting an Idea
The only significant alteration to the bylaw motion involved
this additional wording, which came in an amendment put forward by
Geoff Meggs:
… while deleting the reference to “promoting an
idea” in the definition of signs on a street …
The amendment thus responded to a criticism circulated in email to Council
ahead of time. Even before the critic spoke to the bylaw, the change was as
good as approved.
~ Vancouver Public Library
The bylaw’s prefatory discussion of City Land Regulation
By-Law stated (p. 4) that it would apply not only to two LiveCity
sites, but also to Vancouver House (a venue at the time destined for the
promenade outside Vancouver Public Library) – and any number of
other unspecified “city sites.”
On July 28, just five days later, City Council approved an administrative
report titled Relocation of Vancouver House. The recommendation,
THAT the location of Vancouver House will be changed from the
Central Branch of the Vancouver Public Library at Library Square, to
LiveCity Downtown at Georgia Street,
is made in a report that takes a page “to explain the
rationale.” A listing of four key factors mentions “impacts
on accessibility,” security considerations, and financial costs.
Appeal to financial costs receives special emphasis in both the
Background and Discussion:
The change of location … will significantly mitigate the risk
of cost overruns. … One of the shortcomings of the location was
that [it] was financially prohibitive.
The Vancouver House recommendation had gone to City Council on
March 4, 2009. Bringing finances to the fore fuzzed away the appearance
of making a rapid and direct response to civil liberties criticisms.
7 October 2009
BCCLA helps activists sue City over Olympic gag law
BC Civil Liberties Association press release
20 and 22 October 2009
October 20: The City of Vancouver issued a press release, Vancouver
to take further steps to ensure Charter rights protection in
bylaws, and stated:
We’ve made it clear from the beginning that respect for
the Charter of Rights and Freedoms was our top priority.
— Mayor Gregor Robertson
October 22: The Vancouver Police Department (VPD) issued an
Olympic Update and stated:
There are no protest-only zones, no demonstration pens and
no corrals. … Protestors are free to gather in any public space
as long as their actions are legal.
[Perhaps the two strongest pieces of negative media that confronted
the City of Vancouver and the VPD in October 2009 were a column by
Pete McMartin (Oct 12) that invoked civil rights activist Rosa
Parks, and three forceful letters in the Vancouver Sun (Oct 14).]
To further aggravate the circumstances, the provincial government
was introducing the Miscellaneous Statutes Amendment Act
(to alter the Vancouver Charter for Olympics measures as earlier
requested by the City of Vancouver). Included in that legislation:
•
Enforcement officers to enter private property with minimal or no notice to deal with signage offenses
•
Maximum bylaw offense penalties to increase from $50 to $10,000 a day
•
Provision for a bylaw offense to entail up to six months of imprisonment
3 December 2009
Taking far more care than it had previously, the City of Vancouver
paved the way for its
new omnibus Olympics bylaw
with a
technical briefing
on 26 November 2009. An accompanying
news release
– New Games Bylaw Strengthens Language to Protect Rights –
trumpeted a concern for rights that was far from evident in July.
Major changes included these provisions:
•
All measures to be temporary, with the one exception of a
permanent increase to maximum fine under the Fire By-law
•
The City Manager no longer empowered to create new rules
for a “city live site”
•
Additional rules under the City Land Regulation By-law had
been recommended to “apply to six city owned sites”
(including the Central Branch of Vancouver Public Library).
They now applied only to “the two LiveCity sites, LiveCity
Downtown at Georgia and Beatty Streets and LiveCity Yaletown
at David Lam Park, as celebration sites” (p. 7-8 / pdf
7-8)
•
“The prohibition on causing a disturbance or nuisance that
interferes with the enjoyment of entertainment at LiveCity
sites“ replaced by “a prohibition against unreasonably
interfering with the enjoyment of entertainment” (p. 8 / pdf 8)
•
“Zone streets” reduced in scope, except for the
area added adjacent to the Vancouver Art Gallery, mainly on
the south side
•
A sharper distinction made between commercial activities,
advertising, and signs – and those that are not commercial
(key provisions are the definition of “advertising
matter” in Section 1.2 and the protocol for sign removal
in Appendix D); the additional temporary measures intended
to apply only to the commercial instances
When the December replacement Olympic bylaw [with the existing July bylaw
to be repealed] came before Vancouver City Council on December 3, the only
change to the motion was to add this wording to a preliminary recommendation:
… with the specific proviso that none of these provisions are
intended in any way to limit protests allowed under the Charter of
Rights.
An attempt to add that same wording to the preamble of the bylaw itself
was rejected. Also rejected were five other proposed amendments.
The rejections included these two attempts to strengthen rights:
•
Page 28 – Add “except where that interference is
the incidental effect of otherwise lawful protest” at the
end of 4Ab.
•
Page 2 – At the end of the “celebratory sign”
definition, add “and includes signs whose content is
critical of the 2010 Winter Games.”
Speaking to City Council, the Executive Director of the BC Civil
Liberties Association remarked that the changes in provisions
amounted to “charter proofing,” meaning that the City
had backed off on civil liberties encroachments to the point that
contesting the bylaw on those grounds had been made more difficult.
Much of the remaining concern centered on the restrictions left in
place for the two LiveCity sites.
The bylaw sets forth this convoluted proposition at 4A(a)(vi):
“A person must not … bring onto a city live site any
… anything that makes noise that interferes with the enjoyment of
entertainment on a city live site by other persons.”
Then comes slight backpedalling at 4A(b): “A person must not
unreasonably interfere with the enjoyment of entertainment on a city live
site by other persons.“ Enforcement provisions follow at 4B(d):
“The city may … prohibit access to, or remove from, a city live
site any person who fails to comply with any requirement of section
4A.”
In discussion, the City Manager wangled her way among the protuberant teeth
that remained in the City Land Regulation By-law. She said that
overarching goals are free access, economic development, and entertainment.
To those ends, the bylaw aims to ensure “legitimate entertainment”
and to preclude “huge disturbance” and “very disruptive”
actions. [These qualifications are interesting. They suggested possible
tolerance for minor disturbance and moderately disruptive actions.]
The other sticky point had to do with the notion of “celebratory
sign.” The City’s Director of Olympic and Paralympic
Operations, in a startling revelation, stated that a celebratory
sign should be considered as equivalent to a non-commercial sign,
and that the word had no implications for content. [Yet the bylaw
offers this definition: “ ‘celebratory sign’ means a
sign that celebrates the 2010 Winter Games, and creates or enhances
a festive environment and atmosphere for the 2010 Winter
Games” (p. 2 / pdf 22)]
~ Note on Robson Square
With the December bylaw, the designation of the public space around the
Vancouver Art Gallery (Robson Square is immediately adjacent on the south
side) became extremely unclear. What happened with this public space
made the earlier situation with Vancouver Public Library look
simple. Three factors contributed to a focus on the location:
•
In September 2009 the Province announced that it would situate its
“pavilion” on the fourth floor of the Art Gallery
itself.
•
A refurbished public ice skating rink in Robson Square
opened a few months before the actual Olympic event and provided an
advertising vehicle for major sponsor General Electric, whose large
logo has underlain a good portion of the ice surface.
•
The open area north of the Art Gallery, with a convenient set of
unused steps to provide elevation, has longstanding use as a protest
site in Vancouver.
The written discussion preceding the Olympic bylaw itself singled out
Robson Square:
The Province of British Columbia intends to use Robson Square as a
celebration site during the Games. Planned activities include the
installation of celebratory signs, live entertainment, television
broadcast production and other Games-related programming.
The location stuck out in appended Schedule A as a special case. In
Council the Vancouver Police Department Olympics spokesperson said
that Robson Square would not be “a designated venue,”
would not be under V2010-ISU, would have “no perimeter
fencing,” and would be under “provincial
security.”
The City Manager also spoke specifically about Robson Square, saying
that the north side would not be “programmed or secured in any
way.” A December 2009
report
from the Civil Liberties Advisory Committee also recommended
that the space between the Vancouver Art Gallery and West Georgia
Street be left open to the public for the duration of the Olympics,
without designating it as a protest zone.
During the February Olympics, the north side of the Art Gallery has
served as a site for
(1) The largest single gathering – Take Back Our City!
– (organized by a broad coalition, the 2010 Welcoming
Committee) for February 12 to coincide with the opening ceremonies,
followed by a street march toward the official ceremonies
(2) A demonstration on February 15, led by StopWar, to call attention
to Canadian involvement in Afghanistan, followed by a street march to a
recently established tent city
(3) A demonstration on February 20, mainly led by political and labor
interests, to focus on housing issues
26 January 2010
News stories reported that the lawsuit [see 7 October 2009] against the
City of Vancouver over the Olympic bylaw had been dropped, with one
of the parties to the suit judging that 80 percent of the desired
outcome had been achieved with changes made in the December bylaw.
Specifically mentioned was the elimination of a
40-block no-go area, which had been deemed a demonstration-free,
celebratory zone where only pro-Olympic signs would be allowed.
11 February 2010
V2010-ISU had said on its web site:
The locations of these [safe assembly] areas will be made by the police of
jurisdiction in consultation with the V2010-ISU and the community and
announced in advance of the start of The Games.
A
list
of designated “safe assembly areas” was released to the public
only on the day before the opening ceremonies of Vancouver’s 2010
Winter Olympic Games.
Conclusion
Finding itself in a double bind between
• Having agreed to hand the city over to the International Olympic Committee (IOC)
• Needing to stave off a challenge to proposed illegitimate bylaw encroachment on Charter rights and freedoms
the City of Vancouver seemed out to have it both ways.
According to section 47 of the Host City Contract (2002) Vancouver
agreed to suppress both “propaganda” and
“advertising.”
The December bylaw, in contrast with the July bylaw, concentrated more
specifically on commercial activities, advertising, and signs. Verbal
comments from staff on the term “celebratory” and on the
admissibility of critical T-shirts, pamphlets, and “talk” at
city live sites suggested that enforcement may allow for protest that
does “not unreasonably interfere with the enjoyment of
entertainment … by other persons” [4A(b)].
On the other hand, the attempt to incorporate specific language on these
two points into the bylaw itself met with resistance from city staff
and rejection by most councillors.
The City of Vancouver appears to have written the letter of its bylaw to
satisfy IOC requirements for control of “propaganda,” while in
practice intending to subvert that requirement through latitude and
nonenforcement.
http://spectaclevancouver.wordpress.com/2009/08/19/native-land/
http://spectaclevancouver.wordpress.com/2009/10/24/no-home-go-to-jail/
http://spectaclevancouver.wordpress.com/2009/12/21/an-open-border-for-shut-mouths/
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