To what extent communist are we? The use of public space and the Charter rights

A very enlightening piece by Yuki Shirato, University of British Columbia, Faculty of Law.

CCLA Rights Watch (Canada): There was an interesting decision of B.C. Court of Appeal in October 2010 about the constitutionality of Vancouver city by-law (Street and Traffic By-Law) which prohibits the construction of the new structures on the street without obtaining the written consent from the city (Vancouver (City) v Zhang, 2010 BCCA 450, (Available on CanLII here. The facts behind the issue are that Falun Gong practitioners set up banners and a makeshift shelter in front of the Chinese Consulate in Vancouver and began a 300-hour hunger strike, and furthermore, that sit-in evolved into a vigil by one person 24-hours a day, seven days a week, in a one-by-two-metre meditation hut.

The B.C.C.A. decision overturned the decision of the B.C. Supreme Court which granted the injunction with the costs to the City of Vancouver. The B.C.C.A. found that the city’s limitation on the use of a structure for the purpose of political expression was a violation of the rights under s.2 and that the violation was not justified under s. 1 of the Charter, because it does not meet the minimal impairment requirement set out in R. v. Oakes, [1986] 1 SCR 103. As a result, the court struck down the provision of the by-law. One of the considerations Huddart J emphasized is that “public streets are, as they have been historically, spaces in which political expression takes place.”

Although the context and the protected right in the Charter are different, this decision reminded me of the decision of Victoria (City) v Adams, 2008 BCSC 1363 (available on CanLII here. This case found the provision of the City of Victoria by-law that prohibits the erection of temporary shelter unconstitutional as it violates the rights of homeless people to life, liberty and security of the person under s. 7, and the violation is not justified under s. 1 of the Charter.

Professor Jeremy Waldron of New York University Law School who is one of the most prominent legal philosophers of our time took up the issue of “Homelessness and the Issue of Freedom” two decades ago (December, 1991, 39 UCLA L. Rev. 295). He lamented the fact that the more and more large cities enact the regulations of the streets, subways, parks, and other public places to restrict the activities that can be performed in public space. He went on to say that “the homeless have freedom in our society only to the extent that our society is communist.”

So, the question is, to what extent communist we are to allow private activities in public space.

Anti-panhandling by-laws were on the rise across Canadian cities in 1990s (D. Collins and N. Blomley, “Private Needs and Public Space: Politics, Poverty, and Anti-Panhandling By-Laws in Canadian Cities” in NEW PERSPECTIVES ON THE PUBLIC-PRIVATE DIVIDE edited by the Law Commission of Canada. Vancouver: UBC Press, 2003). However, many cities have repealed or amended significantly the by-laws since then. In the late 2000s, Regina, Calgary, Winnipeg, Saskatoon and Prince Albert have amended or replaced anti-panhandling bylaws designed to control aggressive panhandling (link).

I am convinced that it is extremely important to allow any activity in public space related to the rights protected under the Charter. In a free and democratic society, public spaces should be accessible to everyone only on conditions that they are not engaging in behaviour which causes harm to other people. If there’s a slightest possibility that a by-law could violate the rights of individuals, especially, the disadvantaged, the minority and the homeless, I believe that the by-laws should be repealed. I think that the legislatures should use their resources to find better, more efficient solutions to real problems such as poverty, street congestion, etc.

The Chinese government, under the Communist Party, banned Falun Gong and continued a nationwide crackdown and multifaceted propaganda campaign against the practice worldwide. It is satirical that Falun Gong practitioners protested against the communist government of People’s Republic of China in the public space (“communist space”) of a democratic country.