BCCLA challenges “repugnant” New Westminster bylaw

The British Columbia Civil Liberties Association today filed a legal challenge to New Westminster’s Public Nuisance Bylaw No. 6478.

The bylaw, passed by City Council in May, 1998, bans convicted drug dealers from huge areas of the city, including most of the downtown areas and all three Skytrain stations. The BCCLA met with the Mayor and then appeared before City Council to urge that the proposed Anti-Nuisance Zones be scrapped, but to no avail.

“This bylaw should be repugnant to all Canadians who value democratic freedoms and the rule of law,” said BCCLA Executive Director John Westwood. “It deems a class of persons to be ’undesirables’ and authorizes police to run them out of town. Maybe that was the way they did things in the Wild West, but it is totally unacceptable in any society which values the rule of law.”

The BCCLA will argue that the municipality does not have the legal authority under the Municipal Act to ban a class of people from the city, that in creating Anti-Nuisance Zones it has attempted to legislate in the area of criminal law, and that the bylaw violates the Charter rights to freedom of assembly and association, presumption of innocence, security of the person, and unfairly discriminates against persons excluded from the Zones. We will be represented by three fine lawyers—Bruce Elwood, John McAlpine and Richard Peck—who have generously offered to donate their time and talents to the case.

Westwood said, “The Skytrain has brought some big-city problems to New Westminster, one of them being the street drug trade. We do not oppose lawful means to address these problems, nor do we oppose reasonable ’no go’ zones for those released on bail or parole. What we oppose is the city’s automatic ban of a class of people from most of New Westminster, without a hearing or any opportunity to have the conditions tailored to their individual circumstances.”

Affidavits supporting the civil rights group’s petition detail the many social services unavailable to so-called “Excluded Persons”, including drop-in health clinics, a needle exchange program, methadone-dispensing drug stores and counselling and educational services.

The BCCLA has wanted to challenge this bylaw since it was passed in May, 1998, and waited for a person to be charged under it. Shrewdly, police have frustrated this plan by refusing to issue summonses to Excluded Persons caught in one of the zones, and have instead merely issued warnings. In effect, the bylaw was being enforced in a manner which insulates it from direct challenge.

We conducted a lengthy but ultimately unsuccessful search for an Excluded Person to join our challenge. Based on the results of the search, we believe it is highly unlikely that such a person will come forward, given their distrust of legal institutions and fear of harassment. This week we decided we can wait no longer.