Editor’s Note: Richard Peachey’s Delegation speech on Politics and Morality in Abbotsford before Abbotsford City Council, April 8, 2013, 7:00 p.m.
Tonight I want to address Council regarding the connection between politics and morality in Abbotsford. This will be a followup and an expansion of my delegation speech before Council on January 21st, when I spoke against the City’s permitting of the so-called Lingerie Football League to use a City-owned building.
I’ll start by deconstructing a slogan the Mayor has used in regard to various issues. Mayor Banman has repeatedly stated, “I am not the morality police.” This is a cute sound-bite, and there is some truth in it. It is true grammatically, simply because the mayor as an individual cannot be the “police,” which is a collective plural.
It is also true politically, because neither the mayor nor the councillors have a direct policing role in this city. Their powers are more executive, legislative, and administrative than judicial or police-related.
Furthermore, that slogan “I am not the morality police” brings a smile to many lips because it conjures up images of a Keystone Kop vice squad busting in on a group of grannies playing an unauthorized game of bingo or some such thing. It’s a very cute sound-bite: “I am not the morality police.”
But an unfortunate thing about that slogan is that it masks an important reality: this Council does have a responsibility for the moral tone of our city. And furthermore, this Council does have authority to deal with issues that can be categorized as “moral.”
Let’s consider two specific issues in particular, issues that were raised by the mayor himself in his response to the delegation speech of my wife, Gerda Peachey, on November 5th, 2012. The mayor spoke about performers’ costumes and also about one individual performer’s words.
Here’s what Mayor Banman stated: “I went to the Cirque de Soleil, and I saw people in scantily clad clothing in that, and there was a both a male and a female that were rather intimate doing what they were doing. I saw Gene Simmons; I’m sorry, I didn’t see him personally. But he went here with his filthy, disgusting tongue.”
Right after giving those examples, the mayor said to Gerda: “Be careful what it is you ask us to do. Be careful what freedoms it is you ask us to interrupt with, and start to regulate.”
Well, for the information of Mayor and Council, I would point out that the City already has the authority to regulate such behaviours.
The Community Charter, which is provincial legislation, states:
Section 59: “A council may, by bylaw, do one or more of the following: . . . prohibit the operation of a public show, exhibition, carnival or performance of any kind or in any particular location. . . .”
Section 64: “The authority of a council under section 8 (3) (h) may be exercised in relation to the following: . . . the carrying on of a noxious or offensive business activity . . . indecency and profane, blasphemous or grossly insulting language.”
Now let’s consider the City’s own legislation: the Consolidated Good Neighbour Bylaw of 2003.
Under “Use of Highways,” section 2.7 states: “No Person shall: . . . swear or use indecent, obscene, blasphemous or grossly insulting language on or about a Highway or Other Public Place; . . . [or] carry on any obscene, lewd or indecent activity on a Highway or Other Public Place. . . .”
Now Schedule “A” of that Good Neighbour Bylaw states: ” ‘Highway or Other Public Place’ includes every street, road, land, boulevard, sidewalk, lane, bridge, viaduct and any other way open to public use and any park, building, conveyance, private place or passageway to which the public has, or is permitted to have access or is invited. . . .”
That wording would of course include the Abbotsford Entertainment and Sports Centre, which is a building to which the public is invited.
At the February 4th regular council meeting, the mayor made the following comments: “And with regards to the topless and the nudity, I would suggest that you take the following into consideration, which has going topless in a municipal swimming pool, . . . and it was due to a court, and it said: However, the judge held the municipal regulation was unauthorized under the division of federal and provincial powers established by the Constitution Act in 1867. The federal government holds the exclusive power to regulate morality, and the court is the ultimate decision-maker as to whether a thing is indecent in Canada. The court held that the subject of nudity has a moral aspect that is clearly a matter for the criminal law, noting that sections 173 and 174 of the Criminal Code of Canada deal with public nudity and decency. I think that this is an absolute waste of staff’s time. Most of these issues have been dealt with already. And we need to get on to taking a look at the fiscal aspects of this City rather than going down these rabbit holes which are nothing, in my opinion, but a waste of time and a smokescreen for those in this city that find objection with almost everything it is we do when it comes to morality. We are not here to regulate that in my opinion and all due respect. And this is a dangerous slippery slope. I said it then and I say it now.”
Leaving aside the fact that those comments were made with a notably hostile and denunciatory tone, I want to point out several concerns about what the mayor stated on that occasion.
First of all, there have been two notable court cases regarding a municipality’s dealing with issues of nudity or partial nudity, but those were both provincial cases within B.C. Those cases are known as “Maple Ridge v. Meyer”
and “Skinnydipper Services Inc. v. City of Surrey.”
Now both of those cases were settled by the Supreme Court of B.C., not the Supreme Court of Canada. I recall that Mayor Banman, in his response to Gerda’s delegation on November 5th, made repeated references to the Supreme Court of Canada, but he was clearly bluffing at that time because the only case he has ever referenced is provincial, not federal.
By the way, I emailed the mayor on February 11th to ask what exactly he had in mind when he made those repeated references to the Supreme Court of Canada, but the mayor has never answered that question. In fact, he has explicitly refused to respond to my email; furthermore he has not provided any reason or explanation for that refusal.
This is despite the City’s “clear policy and commitment of answering all resident questions, ideas and concern,” which policy the mayor himself reaffirmed only a few months ago in an email to my wife.
The mayor’s current approach would also appear to run counter to a statement on his own election website, in which he said: “It is time for polarization and rhetoric to end; we need open honest inclusive dialogue to move forward together.”
Now it’s interesting that regarding other decisions of provincial supreme courts, this Council has taken a rather easy-going attitude when it suits it to do so. The Superior Court of Ontario overturned the City of Toronto’s shark fin ban in November 2012, but the City of Abbotsford went ahead and passed their own shark fin ban nonetheless. On January 21st, Councillor Loewen made this statement: “The, you know, reference to any court, superior, supreme, we all know from experience that courts overrule each other. Superior courts overruled by supreme courts, provincial supreme courts. Provincial supreme courts are overruled by Canadian supreme court, and so it goes. And so, sure, a superior court ruled in favour of, or against, this particular ruling in Ontario, this practice. That wouldn’t deter me from moving ahead with this bylaw. I’m in favour of it. And as an offensive business practice, I think that’s a great approach to take. I support it.”
My next point is that those two provincial cases involved municipalities attempting to regulate what an individual or a club could do. In a situation involving a municipality’s dealing with a business —such as the LFL — the dynamics are quite different. One of the background documents for Abbotsford’s recent bylaw banning shark fin products included a legal opinion provided by Vancouver lawyer Rebeka Breder.
Her written opinion notes a particular case in which the City of Vancouver was taken to court for one of its bylaws: “In Try-San International v. City of Vancouver (1978), the bylaw required that body rub parlours’ service providers be fully clothed. The parlour argued that it would lose 90% of its revenue if it operated under such a restriction. The [B.C. Supreme] Court found both that the evidence was inadequate to establish the economic effect of the bylaw on a class of business, and in any event, the restriction was not a prohibition on a class of business but merely regulation of that class.”
That 1978 decision has been relied on in later court cases, including one as recent as 2011.
So cities can in fact regulate businesses, including the attire of their employees.
Later in that legal opinion, Ms. Breder says: “The Supreme Court of Canada also stated that in determining what is a valid municipal purpose, municipal councillors may legitimately consider broad social, economic, and political issues. In the recent decision of Catalyst Paper Corp. v. North Cowichan (District) at paragraphs 19 and 30, the Supreme Court of Canada held that . . . Municipal councillors passing bylaws fulfill a task that affects their community as a whole…[Bylaws] involve an array of social, economic, political and other non-legal considerations… . . . …[M]unicipal councils have extensive latitude in what factors they may consider in passing a bylaw…they may… consider broader social, economic and political factors that are relevant to the electorate.”
In a similar vein, the Ontario judge who overturned Toronto’s shark fin bylaw stated: “In considering challenges to municipal by-laws, courts have embraced a generous, deferential approach which accords considerable respect to municipal councils. . . . Municipal by-laws attract a strong presumption of validity. The party challenging a by-law’s validity bears the burden of proving that it is invalid.”
http://canlii.ca/en/on/onsc/doc/2012/2012onsc6818/2012onsc6818.html, paragraphs 16, 17.
So, Mayor, your comment about needing “to get on to taking a look at the fiscal aspects of this City rather than going down these rabbit holes” just sets up a false dichotomy. As city officials your concerns are much broader than just fiscal. Mayor, I know that you recognize that yourself, because of your involvement with the Abbotsford City of Character group. You already have the authority, from provincial legislation and from your own bylaw, and from the general support of higher courts, to deal with matters you would apparently like to sideline as “moral.” I challenge you to stop using that dismissive slogan of yours, “I am not the morality police,” and deal properly and substantively with issues that arise.
Other municipalities and other managers of civic buildings have taken their responsibilities for these issues more seriously. So can you.
Now, it’s not only provincial legislation and the City’s own bylaw that calls attention to such matters. The contracts that have been signed with those who manage CIty-owned buildings also call attention to issues of public interest that can be categorized as moral.
The City’s operation and management agreement with Global Spectrum, article 7, says: “. . . Global shall not use or permit the Facility [that is, the AESC] or any part thereof to be used for . . . any dangerous, noxious or offensive trade or business, or any other use which would tend to lower the character of the Facility, or any part thereof. The parties shall agree in advance on what categories of events would fall within this description.” Then it says, “Without limiting in any way the generality of the foregoing, no part of the Facility may be used for: . . . the sale of products or services that promote, or the dominate [sic] characteristic of which is, violence or the exploitation of sex.”
Now the words “offensive,” “character,” “violence,” “sex” — those are moral descriptors, are they not? This wording would seem to go beyond any limitations imposed by the Supreme Court of Canada. The concern expressed by such words seems to be not just about what is legal, but about community expectations.
And the license agreement between Global Spectrum and the LFL goes even further. In section 14, we read first about “Legal Compliance,” and then, in a separate and distinct paragraph, the explicit term “morals” is used. “Morals Clause. Licensee shall not use or attempt to use any part of the Facility for any use or proposed use which would be contrary to law, common decency or good morals or otherwise improper or detrimental to the reputation of Licensor.” Notice how, even within that sentence, what is merely legal is distinguished from what complies with common decency or good morals.
But in regard to such wording, something very odd has happened. The Abbotsford News of February 13th, 2012, reported as follows:
” ‘The entertainment and sports centre is similar to Tradex – they’re both run by independent parties and the city’s position is we will not interfere in determining what is appropriate or inappropriate entertainment as long as these events do not involve safety considerations for the city or its residents,’ said Abbotsford Mayor Bruce Banman.”
That statement, of course, is clearly contrary to the wording of the contract, which gives the City a proper role in deciding what sorts of events will be considered. The mayor’s word “interfere” is therefore totally inappropriate, as is his labeling of Global Spectrum as an “independent party” in this regard.
In my February 11th email to Mayor Banman, I asked: “Who decided what ‘the city’s position’ would be? Was it decided by a formal vote of Council? Or was it a decision of staff, or the City manager and/or the Mayor, or …?” But as I’ve already noted, the mayor has refused to respond to my email. He will not answer this question, nor has he explained why he will not answer it. I think Abbotsford voters have a right to know the answer to this question, whatever their views might be about the LFL and other such organizations.
In conclusion: Mayor and Council, it is actually possible to “legislate morality,” as shown by Abbotsford political scientist John Redekop in the extended quote I sent you. If you haven’t read it already, I hope you will.
Jamie Rankin is an American professor of constitutional law, a state senator in the state of Maryland, and an award-winning secular humanist and civil liberties advocate. I sent you a speech that he gave, in which he said: “. . . we must resist and reject any claim that morality has no place in politics; on the contrary, it seems clear to me that politics is all about moral choices.” Again, if you haven’t taken time to read Rankin’s comments, I hope you’ll do that.
And lastly, a quote from a respected U.S. president, Abraham Lincoln. Mayor Banman’s sound-bite slogan claims, “I am not the morality police,” but Lincoln’s view was: “Nothing can be politically right, that is morally wrong; and no necessity can ever sanctify a law, that is contrary to equity. Virtue is the soul of a republic.”
Mayor and Council, the relevant legislation empowers you, the courts are generally supportive of municipal bylaws, and you yourselves have consciences and you know full well what is sleazy and disgusting, and what is good for this community.
I simply ask that you think about what I have said. Thank you for your time.[For all quotations not referenced above, see the “background documents” for this delegation: