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VANCOUVER—As the hearing over the Falun Gong protest outside the Chinese consulate wrapped up on Friday, Falun Gong's lawyers told the B.C. Supreme Court that there is an “improper purpose” behind the City of Vancouver's attempt to oust the long-running appeal.
Legal counsel Joe Arvay suggested that Mayor Sam Sullivan's efforts to get rid of the protest have more to do with Sullivan's relationship with the Chinese consulate and the regime in China than with a bylaw.
The city wants Falun Gong practitioners to dismantle their 7-year 24/7 protest consisting of signs and a small shelter outside the consulate, saying it violates a city bylaw.
Falun Gong's lawyers argued that the bylaw is unconstitutional and infringes on free speech, and the city should not shut down freedom of expression of Canadian citizens due to pressure orchestrated by the Chinese regime.
The city's lawyer, Tom Zworski, told the court that the enforcing of the bylaw concerning permanent structures on city property has nothing to do with Chinese consulate pressure and is merely part of the city's “regulatory scheme.”
Even if there were an improper purpose, said Zworski, the hearing should not be a judicial review of the city’s decision.
The structure is an obstruction of free use of the street, he said, and has simply existed for long enough. Since the city never gave permission in writing for the shelter and signs to be erected, they are therefore illegal.
The Falun Gong disputed this, saying they were initially given verbal permission by the city. The group started the protest in Aug. 2001 to appeal for their persecuted family and friends in China where the practice of Falun Gong is banned.
Outlining 25 “incontrovertible facts,” Arvay told Justice Sunni Stromberg-Stein of the close relationship that existed between Sullivan and ex-Chinese Consular General Yang Qiang, including the fact that Sullivan and his parents were guests at a dinner at Yang’s private residence where the protest site was discussed.
Sullivan, who speaks fluent Cantonese, has also been invited to China numerous times, said Arvay, including on a trade delegation with Premier Gordon Campbell in 2004 and as an honoured guest at the Paralympic Games.
Noting several “coincidences,” Arvay said that before Sullivan came to office, the city tolerated the protest and Falun Gong Day was proclaimed by the city up until 2004. That ceased after Sullivan was elected, and beginning with ex-Prime Minister Paul Martin’s trade mission to China in January 2005, formal meetings were arranged with or pressure put on the Falun Gong to dismantle or downsize the site.
Arvay suggested the number of such incidents rules out the possibility of coincidence. One has to wonder, he said, whether something “supernatural” is taking place or whether someone is simply not telling the truth.
Zworski said that the city is not after the individuals or the message but the structure itself. The city's enforcement has gone through a “progress enforcement approach,” where the city gradually enforces the bylaw, starting with dialogue, notification about the bylaw, formal letters and, lastly, enforcement.
He told the court that even without the permanent structure and violation of the bylaw, Falun Gong practitioners can still continue to express themselves by holding hand-held signs or posters. It is only a matter of more people and commitment.
Since most of the current protestors are elderly women, Falun Gong's lawyers argued that it is beyond the capacity, strength, and number of protestors involved to keep it up.
“The shelter, of course, is what enables them to be there 365 days a year through all the bad weathers, freezing weathers and the rain and everything else,” said lawyer Clive Ansley.
Zworski indicated the shelter or structure is merely an aid that creates comfort and convenience for the protestors. By attaching a sign to the structure does not make the structure itself expressive. Therefore removing the structure does not affect freedom of speech.
He said numerous permanent signs and advertisements have been erected without permission in the city, causing an “aesthetic disaster.” Therefore it is important for the city to control and adjust the balance of competitive interests and uses.
While Arvay agreed that the city should hold the right to regulate signs, he said the city only made regulating policies for commercial and artistic expressions, but not political. Numerous commercial and artistic structures are granted exemptions to remain on city properties.
He argued that the city does nothing to promote political expressions that may directly link to social justice and human rights, which is the measure of a free and democratic society and is protected under the Canadian Charter of Rights and Freedoms. Even if the city does not create a policy for political expressions, at least an exemption should be made for this particular site, he said.
The site, which is the longest-running 24/7 protest in the world, is “unique” from any ordinary protest, said Arvay, and the message dispalyed on the signs is significant. The protest has never meant to be permanent, as soon as the persecution in China ends the structure will no longer be necessary.
In addition, Arvay emphasised that the structure does not interfere with pedestrians or other users of street. Any “interference” was coming from the Chinese consulate and regime, he said, as the message imparted by the signs is not to their liking.
Fearful that the rapidly-growing Falun Gong was a threat to their power, the Chinese regime launched a crackdown against the spiritual practice in 1999, which led to the imprisonment, torture and deaths of thousands of adherents.
“I think it’s a clear move to curtail the freedom of speech of Canadian citizens, in order to satisfy a foreign dictatorship,” said Ansley.
If the court decides that the bylaw is unconstitutional, the city will have to amend the bylaw. If the verdict is that the bylaw should be enforced, the structure will have to be removed within seven days.
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