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Vancouver’s Problem with Freedom of Expression

And what needs to change.

Spencer Izen 18 Apr 2023TheTyee.ca

Spencer Izen is a civil and digital liberties researcher with the Freedom of Information and Privacy Association and a Champion of Free Expression for 2023. 

Freedom of expression is more than your right to speak your mind. It also protects your right to hear somebody speak, and goes as far as to protect anything with expressive content, defined by the Supreme Court as anything that “attempts to convey meaning.”

A journalist's confidential sources, political advertising on public transit and election spending are all forms of expression protected by default under section 2(b) of the Canadian Charter of Rights and Freedoms.

Any government action that gets in the way of freedom of expression is subject to a complex analysis that requires the state to show the restriction they imposed was reasonable.

Government exercise of statutory power in administrative decision-making is subject to a similar standard that requires the consideration of Charter values.

Freedom of expression is a constitutional right. But in recent weeks, our municipal institutions have abandoned it. 

Last week, the Vancouver Police Department unreasonably restricted media from covering the forced displacement of unhoused residents of the Downtown Eastside. That same week, the Vancouver School Board effectively said that many of its public meetings aren't for public in-person attendance. And two weeks before that, city councillors part of the ABC Vancouver majority on council made chilling statements about non-profits' criticism of their party.

All of these incidents are deeply disturbing in their own right. 

Individually, they display the respective disregard of politicians and officials around the intersection of free speech and the exercise of their duties. 

Together, they illustrate a city prepared to stray from democratic norms when the questions get tough and accountability gets annoying. That needs to change.

In council chambers, a call for ‘respectful workplace’ language 

Back in October, the Canadian Press reported on how members of the local Chinese community were divided on how they perceived Ken Sim's and ABC's victory in the municipal election. 

Among the interviewees was Rachel Lau, program manager of the Yarrow Intergenerational Society for Justice, a non-profit dedicated to supporting youth and low-income immigrant seniors in Chinatown and the Downtown Eastside.

"I know that the Chinese-Canadian community is really excited about the first Chinese-Canadian mayor. I just want to point out that just because somebody looks like you doesn't mean that they are actually going to take care of you,” Lau told Canadian Press reporter Nono Shen. “That's the unfortunate truth."

Months later, on March 28, city council asked questions of Social Policy and Projects Division staff on the distribution of community grants. ABC Coun. Peter Meiszner asked what kind of “due diligence” they do when community groups file a grant application. 

Meiszner was referring to comments groups may make in the media and whether they “are following policies similar to our respectful workplace policy,” as he put it.

“Do you think there is any opportunity to work with media relations or communications in terms of flagging those media stories with possible comments that would be contrary to our respectful workplace policy?” Meiszner asked.

Meiszner later brought up an amendment. It directed city staff to provide council with options to “ensure that city grant recipients are non-partisan and that require grant recipients to communicate to, about and with city officials in a respectful manner that is in keeping with the city's respectful workplace and related policies, and requirements.”

He gave one item of evidence as to why this amendment was needed.

“I'm not going to mention which organization this is, but they are receiving two grants... here's what they said about the election of Mayor Ken Sim,” Meiszner said, before reading out Rachel Lau's quote to the Canadian Press from October, without naming them in council chambers.

“And then they went on to say they were very disappointed by the election of our mayor. So this, to me, is a huge red flag.”

Fellow ABC Coun. Sarah Kirby-Yung also spoke about discourse from her observations and experiences.

“There is a very troubling trend of a number of groups, some of which are non-profit service providers, many of whom deliver genuinely good services but who are moving from advocacy to activism,” she said. “And are targeting, increasingly, elected officials, in a way that is hateful, troublesome and quite frankly is making a lot of people feel unsafe.”

Kirby-Yung said it would be inappropriate to repeat any examples publicly.

Green Party Coun. Pete Fry suggested the “non-partisan” requirements were too broad and likely would interfere with free expression. Following his suggestion, that aspect of the amendment was removed.

‘Charities chill’

The discussion was reminiscent of the Harper-era “charities chill,” where charitable organizations were prohibited from engaging in “political activity” under the Income Tax Act. Organizations who spoke on or did anything “political,” were, in theory, subject to audits by the Canada Revenue Agency.

Many charitable organizations facing “Political Activity Audits” were vocal critics of former prime minister Stephen Harper's government. They included environmental groups like the David Suzuki Foundation, Environmental Defence Canada, Ecology Action Centre, and ironically the free expression advocacy organization PEN Canada.

The result was an expressive winter among charities that lasted over half a decade. Royal Roads professor Gareth Kirkby’s 2014 graduate thesis examined the impact of the law on charities, finding “there is evidence in the data that the government [was] attempting, with some success, to narrow society’s important policy conversations.”

In 2018, the Ontario Superior Court of Justice found the Income Tax Act unjustifiably limited freedom of expression and declared its impugned provisions “of no force or effect.” The government ultimately decided not to appeal.

Back in present-day Vancouver, city councillors weren't wrong about their observations of the toxicity of political discourse — it’s an increasingly well-documented phenomenon at all levels of governance.

However, their misguided, Harper-style approach to local non-profits expressing criticism and engaging in political expression is wholly inappropriate. 

It does little to address the "lawful but awful" conduct some councillors testified to (a level which Mieszner’s example did not rise to), as reflected in the B.C. Human Rights Commissioners’ recent report on hate during the pandemic. 

Meiszner's malleable standard of “respect” appears more like a euphemism for unfavourable speech than an appeal for civility. 

It is incompatible with a rights-based approach to governance. Elected councillors wading into expressive arbitration is politically illegitimate. 

The City of Vancouver has more pressing and legitimate issues than investigating speech enforcement mechanisms, especially when the one piece of evidence given in council was one person’s commentary to the media about the municipal election results. 

When law enforcement positioned themselves above the law

The Vancouver police arrived in the Downtown Eastside on Wednesday, April 5, as the city began its forced displacement of unhoused residents. The VPD’s Twitter account announced that “limited public access” would be in place for an unspecified duration.

“To ensure safety and privacy for people within the encampment, we have limited public access. Media and observers can stage at Columbia and East Hastings Street,” the VPD’s tweet read. Some media were reportedly given early access.

“It’s just not opened up as a free-for-all where 50 people can come in with television cameras, but there is a pool camera set up there and you can monitor what’s going on,” Vancouver police Chief Adam Palmer told reporters at a press conference that day.

Citing “privacy” and “safety” distort how those values interact with freedom of expression. The police department’s use of these terms is not a substitute for providing the necessary legal justification for restricting media access to public space.

Chief Palmer's nonchalant assertion flips Canada's constitutional logic on its head, suggesting that police restriction of journalists' work is the default norm when it is actually always up to the state to show why a rights limitation is reasonable.

According to a spokesperson, the VPD was there “to provide a safe working space for city staff and to mitigate any conflicts that arise.” The City of Vancouver’s press release says its role was to “ensure staff safety as they do their work and enforce the Streets and Traffic Bylaw as necessary.” 

Nowhere in that mandate is the requirement to preserve privacy and safety in the way the department’s tweet purports. Professional journalists have ethical codes and familiarity with conflict zones to aid them on those fronts.

Rights to privacy, safety and expression are not organized in any particular hierarchy. They are values that can enhance or compete with each other depending on the situation. 

A democratic society demands public officials consider in context how their decisions affect each value, and ultimately decide which, if any, has to give, and to what extent. An explanation must be available.

That did not happen here. No source of law was given in enacting this restriction on freedom of expression. It was not clear why such restrictions were necessary, nor was it clear how they were proportionate to any necessity the circumstances gave rise to.

The tactics of the VPD here take a similar form to those used by the RCMP at Fairy Creek. Journalists being herded to particular vantage points that are not of their choosing amid a high-profile, newsworthy event featuring a heavy police presence and protesters is all too familiar. 

It’s the exact sort of thing Justice Thompson of the B.C. Supreme Court found to unjustly “interfere with important liberties of members of the public and members of the media” at Fairy Creek in the summer of 2021. 

The public depends on journalism to independently capture and record matters of public importance, particularly as an instrument of police accountability. 

When journalists aren't free to report and a law enforcement agency positions itself as above the law, that is a problem for all of Vancouver to be concerned about.

With the VSB, a narrowing horizon for public engagement

Anyone who has ever attended any kind of governance meeting, whether as an observer or speaker, knows the experience online and in-person is not the same. The Vancouver School Board apparently doesn't agree.

Citing the COVID-19 pandemic, not all of the school board’s public meetings are open to the public to attend in-person (the last three school years have been in-person). You can watch them on YouTube Live, and participate as a delegation via Microsoft Teams. On April 3, a former trustee who tried to attend a meeting required to be open under the School Act was turned away.

Besides the inability to determine non-verbal communication and follow up after formal discussions are adjourned, attending a public meeting over Zoom, Teams or the like subjects a delegation to the will of the individual controlling their access, offering mute or removal functions only a click away. Plus a greater ability to interrupt and shut down a speaker. Internet connectivity isn’t always a guarantee, either.

There is no pressing and substantial reason for Vancouver's school board to depart from what has otherwise been the standard practice before the introduction of video conferencing technology, regardless of internal views on efficiency or convenience. I do not take the view that remote-only observation complies with the School Act’s open meeting requirements.

Meaningful participation in public dialogue shouldn’t privilege the preferences of incumbent authority.

The ability to receive and impart views and information free from undue interference is a necessary precondition to effective participation in a democratic society. Advocacy groups and activists rely on this fundamental right in any attempt to convey meaning over the course of their contributions to public discourse. As does anyone speaking about anything.

When our public institutions begin to act as though they are ungovernable under the laws of the land and democratic obligations, that is an immediate sign they need to be reminded of who they serve, and of their obligation to responsibly exercise power in the public interest. 

That means full respect, recognition and appreciation for freedom of expression — including the right to take money from and critique city council, the right to authentically and independently record police activity in public space and the right to attend a public meeting of a school board in-person.

Otherwise, Vancouver risks accepting even more encroachments on civil liberties and an erosion of local democracy.  [Tyee]

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