Legal Tremors in the Lead-Up to Vancouver’s 2010 Winter Olympic Games

Joseph Jones

 

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

 

Introduction

“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)
 

Vancouver’s Olympic Bylaws

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 releaseNew 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.
 

Native Land

http://spectaclevancouver.wordpress.com/2009/08/19/native-land/
 

Street Cleaning

http://spectaclevancouver.wordpress.com/2009/10/24/no-home-go-to-jail/
 

Border Blocking

http://spectaclevancouver.wordpress.com/2009/12/21/an-open-border-for-shut-mouths/
 

Update from Vancouver 2010

 


 

As part of web site migration July 2013, links have been reviewed and updated where possible.
Comments and correspondence are welcome. For contact information see Joseph Jones.

 

Created February 2010
 
Migrated July 2013
 
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