Submission of the B.B. Civil Liberties Association to New Westminster City Council regarding proposed by-law No. 6478

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(The “Anti-loitering and Anti-nuisance By-law”)
May, 1998


The failure of Parliament to decriminalize the personal use of drugs has left municipalities to cope with the street-level consequences of the criminal drug trade—consequences amply detailed in the Report of New Westminster’s Task Force on Community Problems and Social Issues. As a result of the Task Force’s Report, the current by-law No. 6478 has been proposed. The B.C. Civil Liberties Association (BCCLA) recognizes the harm to the quality of life in some neighbourhoods caused by the street-level drug trade, and sympathizes with Council’s attempt to address this harm. However, we oppose the proposed by-law, for the reasons given below.

The proposed by-law is intended to reduce the street-level consequences of the illegal drug trade. It recognizes that buyers and sellers tend to return to those areas in the City well-known for the presence of the trade, and (except in limited circumstances) bans from being in these areas anyone convicted of a drug offence which occurred in a public place, for a period of one year after their conviction. How the police are to determine whether the offence occurred in a public place is not explained.

The BCCLA has three specific concerns about this by-law:

(a) the behaviours prohibited in the by-law either are already prohibited by the Criminal Code and other by-laws, or are vague and over-broad;

(b) the attempt to prohibit drug offenders from certain areas of the municipality is beyond the appropriate authority of a municipality;

(c) the zones designated in the by-law are far too large; and the exceptions for persons’ access to these zones are far too narrow.

We stress that these are principled concerns, and are not intended to set out a legal or constitutional argument. Since we cannot see how these concerns can be met without gutting the effectiveness of the proposed by-law, we urge Council to reject it.

1. Prohibited behaviours

Section 4 of the proposed by-law prohibits certain behaviours within Nuisance Zones.

(a) The behaviours prohibited by 4(b) and (c) already fall under Section 175 of the Criminal Code. We assume that 4(b) and (c) are not intended to prohibit behaviour beyond that already prohibited by the Code. The likely reason for including them in the proposed by-law is to respond more appropriately to an offence (a ticket rather than a criminal charge), and make it easier to enforce. This seems to be appropriate.

(b) The behaviours prohibited by 4 (a), (d) and (e) are (or arguably should be) already prohibited by other by-laws. The BCCLA does not oppose prohibiting these types of behaviours in and of itself, and issuing a municipal ticket seems to be an appropriate response.

(c) Section 4 (f) is far too broad, and should be withdrawn. It would prohibit causing or permitting others to cause any noise or sound whatsoever which made others uncomfortable, disturbed their rest or enjoyment or inconvenienced them in some way. Given that the preamble to the proposed by-law clearly indicates that the by-law’s purpose is to control the nuisance caused by the street drug trade, the overbreadth of this Section will almost surely lead to selective enforcement by the police. Police will choose to ignore “prohibited” behaviour if the person is not otherwise suspected by them of being involved in the drug trade, but will enforce the by-law rigorously when the reverse is true, or the person is someone they want to “get” for some other reason. In general, police should not have the discretion to judge that an offence has been committed solely because they suspect that a person may be involved in some other prohibited activity (here, the street drug trade) or for some other reason is a target of their interest. If the police do not have sufficient evidence to arrest a person for a drug or other clearly-defined offence, the person should be left alone.

2. Nuisance zones

The by-law sets out Anti-Nuisance Zones and (with limited exceptions) automatically bans from being in a Zone for one year anyone after convicted for a drug offence where the offence occurred in a public place. The BCCLA strongly opposes this part of the proposed by-law.

(a) First, it is not clear that a municipality has—or should have—the authority to ban a person from certain areas of the City. Placing restrictions on a person’s movements or liberty has traditionally and appropriately been the authority of a court, acting under federal law. Whether this attempt at regulation infringes on federal powers is not clear, but it most likely would generate a Constitutional challenge—an expensive proposition if the municipality chooses to try to defend the law. Even if it does not infringe on federal jurisdiction, banning someone from simply being in a certain area of the City even though they are breaking no laws is far too invasive a power to invest in a municipal government. Municipal governments lack the staff and resources necessary for the careful crafting of laws which are severely restrictive of liberty, and for the consideration of the broad range of societal and legal issues raised by such proposals.

(b) Second, the mandatory nature of the ban—upon conviction for a drug offence—raises serious problems, since it does not allow for tailoring or waiving the ban according to the circumstances of the person or the offense. Before imposing such restrictions on a person’s liberty, at a minimum the person should have the opportunity to present evidence before an independent arbitrator (ideally, a court) supporting a lesser restriction or no restriction at all.

(c) Third, even if it were appropriate for a municipality to ban persons from certain areas, the size and location of the “Anti-Nuisance Zones” in this by-law makes the penalty unduly onerous, especially given the rather minor nature of the offences in the by-law and most drug offences. (The BCCLA acknowledges that the nuisance caused by the drug trade may not be minor but insists that the offences themselves are minor.)

The zones are far too large to serve as justifiable limits on the movements of persons simply because those persons have been convicted of a drug offence. In Vancouver, drug dealing which causes a nuisance (which makes uncomfortable or intimidates pedestrians and residents) goes on in only three or four blocks along Hastings Street, and it is likely that the same is true in New Westminster. If there are three separate areas, we would be surprised if drug dealing “day and night” went on in more than a block or two in each. Thus, if the aim is to prohibit drug users and dealers from frequenting the areas where the drug trade flourishes to the point of intimidating pedestrians, the zones should be restricted to those six-or-so blocks.

In fact, one zone would include 16 city blocks around the 22nd Street SkyTrain station, the second 18 city blocks from the Downtown area to the Fraser River, and the third 17 city blocks of commercial/residential property along both sides of 12th Street. Thus, large portions of the Downtown and commercial areas and two of the three three SkyTrain stations would be prohibited use by Excluded Persons. There is simply no justification for this. It may be true that nefarious characters are from time to time seen lounging around any of the 51 city blocks noted above, and that both residents and store owners are from time to time bothered by their presence, but that is insufficient justification for legally banning citizens from these areas. The fact that these persons have committed a drug offence falls far short of justifying a ban on their shopping along 12th Street, or using one of the three SkyTrain stations.

A person’s liberty in a democratic society is justifiably restricted only when the restriction is as narrow as possible, when it is rationally related to lessening the evil which is intended to be addressed, and when the evil created by the infringement is not greater than the evil to be addressed. Due to their size and location, the proposed Anti-Nuisance Zones fail all three of these tests:

(i) if it is true that a flourishing drug trade goes on in only a few of the 51 city bocks included, the prohibition from Excluded Zones is far broader than is required to ban Excluded Persons from creating a nuisance by continuing to engage in the street drug trade. The argument that the Zones need to be this large because, if they were smaller, the street drug trade would displace to these other areas simply exacerbates the problem. Then, persons are being excluded from areas of the City not because they are likely to engage in the drug trade in these areas, but because they might do so if the Zones were smaller.

(ii) the measure is unlikely to stop the street drug trade in New Westminster, but (if it has an effect at all) will simply shift some of it to other areas, and specifying these other areas as Excluded Zones will exacerbate the unfairness of the penalty; and

(iii) given the minor nature of the offences, the ban of persons from 51 city blocks and two of the three SkyTrain stations is an evil much greater than the nuisance caused by these persons.

(d) Sections 6 through 9 of the proposed by-law set out exceptions to the ban, designed to allow Excluded Persons to attend meetings related to their crime, to allow them to continue to reside in a zone, and to attend school or work. Given the location and size of the three zones, these exceptions to the ban are totally inadequate. What if a person has work, attends school or has family or friends on one side of 12th Street (outside the zone) and lives on the other? How are they to get from A to B? How are they to use a SkyTrain station? Can they not shop on any one of the 17 blocks along 12th Street or along Columbia Street. eat in a restaurant, or go to their bank? None of these (and many other) activities would be allowed an Excluded Person, and their inability to legally carry out these activities is clearly unjustified. In our opinion, it would be impossible to set out a list of exclusions to a person’s ban from the specified zones which would not gut the by-law’s effectiveness and at the same time be justifiable.

In short, a person should be legally able to go wherever they wish in the City unless their simply being in a place gives reasonable grounds to believe that they are engaging in the drug trade on the street, and in addition their doing so is likely to cause pedestrians or others in the neighbourhood to be intimidated or fearful. We suggest that this condition will rarely if ever be met, and so the City should abandon this attempt to reduce the nuisance caused by the street-level drug trade.

3. Concluding notes

(a) The BCCLA is opposed in principle to the criminalization of the personal use of “recreational” drugs, and has fought for more than 30 years to have this use decriminalized. Large amounts of valuable police, prosecutorial and court resources are wasted in the effort to curb the sale and use of controlled substances, and citizens are saddled with criminal records for possessing, buying and selling small amounts of “illegal” drugs—criminal records which can have a serious impact on their future careers and travel opportunities. Those who wish to use these drugs and those who become addicted to them are forced to buy them illegally on the street at prices inflated by the criminal elements who control the drug trade. This results in the personal and property crimes which have severely affected the quality of life in our communities.

Several developments over the past year make us more optimistic that some movement in this area is imminent: the increasing public support for the approval of the use of marijuana for medical reasons, and the public comments by several senior police officers in favour of decriminalization.

Instead of creating laws which unfairly restrict the liberty of persons, we urge City Council to join with us in bringing forcefully to the attention of the Ministers of Justice and Health the difficulties which municipalities face in coping with the street-level consequences of the continued criminalization of the use of drugs, and to urge the federal government to move swiftly to make appropriate changes to the Criminal Code and the Controlled Drugs and Substances Act.

In the meantime, we urge the City of New Westminster to make use of other tools in addressing the consequences of the street-level drug trade, such as the provision of local detox centres and other health facilities to assist those who want to get off drugs, greater use by Crown of conditional sentences for drug offenders where conditions appropriate to the person and the offence can be placed on their liberty, and greater use of other alternatives to incarceration (such as restorative justice programs) in which the community can fashion a locally-based response to the supervision of offenders.

(b) This proposed by-law is, like the City’s panhandling by-law, an attempt to cleanse the streets of persons who by their looks or behaviour cause others to feel uncomfortable, inconvenienced or intimidated. Most of these people have not chosen this way of life. They are the poor, the misfits, the mentally ill—the ones among whom we all might find ourselves were our fortunes different.

Like most others, our society (our laws and social and economic policies) have never been very successful in accommodating these people. If we are truly concerned to improve the quality of life in our cities for all citizens, then we need to begin to deal with the root causes of poverty and prostitution and addiction. Simply trying to rid our streets of these unfortunate people so that we are not confronted with the consequences of our laws and policies is wrong. It is wrong because it infringes on the rights and freedoms of just those persons who are least able to defend themselves, rights and freedoms we jealously guard for ourselves. It shows that we are less concerned to address their misfortune and its causes than we are we to ensure that we do not have to face its consequences.

(c) The BCCLA acknowledges that municipalities have little control over the laws and policies which lead to drug dealing and panhandling and prostitution on our streets, yet they are left to cope with the manifestations of these social and health problems. However, that inability does not justify infringing on the fundamental freedoms of citizens in a democracy. We respectfully ask City Council to vote against the passage of Proposed by-law No. 6478.