At HRM Council on May 14th, first reading was granted to a motion by Coun. Lisa Blackburn to enact Bylaw F-100 respecting advertising flyers. This is an issue that has been kicked around by Council for over a decade with no action until now. This has been well-documented by the local news media, with one such story here:
Flyers can be a nuisance to some people. I know I never used to bother with them when I found the plastic bag on my doorstep, as I prefer to read them online. I would take them out of the bag, put the contents in my paper recycling and the bag in my main recycling can. But I know that some people not only use them but look forward to them, so an outright ban would not be a good idea. More on that later.
In my case I have successfully opted out of receiving them for a few years. I saw an email address posted somewhere ( email@example.com ) that you could use to discontinue them, and while it took two tries, eventually they stopped. Apparently that success is not universal though, given the number of people who reported numerous times trying to stop them with no success. Boo to the Herald for not making that work better. But I’m not sure that the weight of a bylaw and all the cost to taxpayers that entails is the best way to fix that problem.
During the discussion at Council, the point was made by a number of Councillors and the HRM Solicitor, John Traves, that this type of bylaw was the only viable way of policing the distribution of flyers because anything further would violate the principles of freedom of expression outlined in the Constitution. I found that rationale strange. Nobody was talking about limiting the ability of those people who wanted the flyers to receive them. The problem was those who did not want them getting them anyway, along with the cost to HRM of dealing with the waste paper and plastic, and their contribution to littering. If, for example, an opt-in or subscription system was implemented, those who wanted the communication the flyers contained would still receive it, while reducing the burden on others who had to deal with the fallout from the existing flawed process.
I read the report that went to Council and it did not cite any legal opinions or cases. But in the discussion at Council, Traves mentioned a report that went to Council in 2012 that supported the position. It took a lot of digging, but eventually I found it, here:
This is a compilation of several other reports to Council going back over a decade. In the discussion section on pages 2 and 3, it talks about an opt-out over an opt-in system, and concludes “An outright ban would not be minimally impairing and would not pass the test. Neither would an “opt-in” requirement as opposed to an “opt-out” requirement. A by-law (like ones adopted in Ottawa and in Calgary) that imposes reasonable delivery standards on distributors and requires distributors to respect the clear wishes of a property owner/occupier would, however, likely be upheld if challenged.”
While an outright ban would certainly be questionable regarding the Charter of Rights and Freedoms, the analysis of opt-out over opt-in is missing. I looked and looked, and could find no rationale to support that statement. It is just hanging out there with no visible means of support. The analysis of “minimally impairing” and “reasonable” is missing too. It would seem that the one thing that an opt-out system has in its favor is that it is the least risk to HRM should they should ever face a legal challenge. But we do not know how much more risk an opt-in version would entail. Would that not also reflect “the clear wishes of property owners” that they mention as a benefit of the opt-out option they are proposing?
Looking at that material took me down to page 35 of the document where there is a legal opinion from 2012 authored by Marion Tyson, who at the time was Acting Director of Legal Services for HRM, a position she took after retiring from the Province of Nova Scotia as Deputy Minister in portfolios like Justice and Community Services. Way back when I joined Municipal Affairs in 1985, Marion was one of our departmental solicitors. Her reputation back then was that she was meticulous and would not hesitate to tell you something other than what you wanted to hear if her legal training told her otherwise, a quality that was not necessarily universal to lawyers in the employ of the Province. I quickly gained much respect for her as both a very good and thorough lawyer and fine person. She moved on after some years, going back to Justice where she eventually became Deputy. When she retired from the Province in 2011 she was one of the many senior provincial people who moved to HRM for a lucrative short-term gig.
Her opinion found in the document is very interesting. It deals with the question she was asked back in 2012. That question dealt with an outright ban on flyers. The conclusion in her report is that a ban would violate the Charter because, in essence, it goes too far. She then provides an analysis of various options other than a ban that would have less chance of violating the Charter, and outlines the various tests that would have to be satisfied. No recommendation is offered as to which approach is preferred, although she does point out the costs of enacting a bylaw. She leaves it to the reader to judge what the risks and rewards are of any given choice.
Now, I am no lawyer. My experience is in working with them in helping to draft legislation and regulation, and in listening to their advice. In reading all of this material, I am struck by a few things. First, the opt-out system is the one that would seem to have the least risk of attracting a Charter challenge only because it is in use elsewhere and has not yet been overturned. What the extra risk of an opt-in system might be, we aren’t sure, because nobody apparently did that work. But I do know that without any information being provided on that topic, the statement that an opt-in system would violate the Charter is simply unsupported. It may, or it may not, but we do not know. But we can presume that a opt-out system and an opt-in system might eventually, over time, end up with about the same number of households receiving flyers as people make choices to get them or reject them. So perhaps the risk of one option over another is small.
One other point I did not see relating to the “freedom of expression” Charter risk is something that might not have occurred to anyone other than me. If retailers who are being threatened with a ban on plastic shopping bags suddenly started printing recipes or promotional offers or discount coupons on them, would a ban of those be subject to the same Charter challenge? And if HRM can ban plastic bags, why can’t they ban flyers that come in plastic bags? If they ban plastic bags, what packaging will the flyers arrive in? It is all very perplexing.
I am also struck by how there has been very little time spent on the advantages of an opt-out bylaw powered by Official HRM StickersTM over the existing system of letting the distributor manage the process of letting people opt out and giving the distributor a littering ticket if they leave flyers on your property when they aren’t wanted. That would require no new bylaw, virtually no extra costs or overhead, just some persuasion (or perhaps harassment) of the distributors to do things right. The whole thing seems rather slapdash to me, almost as if they decided to make it go away by just copying the Ottawa bylaw and calling it a day.
The other point that I could not gain any enlightenment about was whether the existing opt-outs maintained by the Herald go away once the bylaw is enacted. Will I suddenly start receiving flyers again if I do not get an Official HRM StickerTM slapped on my mailbox? I surely hope not, but it possibly could be an unintended consequence of this. But that is just another thing the material is silent upon. Like other recent HRM bylaws, it seems to me that in the rush to do something, this was taken out of the oven way too early before it was fully baked.