Enhanced Graffiti Bylaw (J. Melnychuk)
Recommendation:That the January 28, 2004, Planning and Development report 2004PDD003 be received for information.
Report Summary
This report is in response to an inquiry for the review of the graffiti bylaw.
Previous Council/Committee Action
At the September 29, 2003, Community Services Committee meeting, Councillor
J. Melnychuk made the following inquiry:
“It was recently reported in the Edmonton Journal that the Edmonton Police Service is interested in an enhanced Graffiti Bylaw for our city.
Could Administration provide a report on the proposal including:
- What are the differences between our existing Bylaw and the proposal?
- Does Bylaw Enforcement support these changes?
- What steps would need to be taken to create the necessary changes in the present Bylaw?
- Any other information that is relevant.”
Report
1. What are the differences between our existing Bylaw and the proposal?
· Currently, the City has no bylaw that defines graffiti or prohibits the display of graffiti. The Planning and Development Department (Complaints and Investigation Section) has, on occasion, used the Nuisance Bylaw 10406 to resolve complaints where graffiti contains sexually explicit drawings, abhorrent language, racial or religious slurs. The Nuisance Bylaw is intended to regulate untidy, unsightly, offensive, or dangerous property conditions and conditions that interfere with the use or enjoyment of other property. It is the explicitly offensive nature of some graffiti that initiates enforcement action. Enforcement staff can direct property owners to cover or remove the offensive material. The Nuisance Bylaw does not create an offence to display graffiti but sets out fines for failure to follow the City’s direction for removal.
· The Edmonton Police Service (EPS) proposal document suggests two alternatives: to create a Graffiti Bylaw or to amend the current Nuisance Bylaw 10406. The first proposal includes several copies of graffiti bylaws from other municipalities but does not provide any specific details or direction for bylaw development or drafting. Therefore, no meaningful comparison of the differences can be made between the existing Nuisance Bylaw and a proposed Graffiti Bylaw without first establishing some basic parameters, scope and review of legal sustainability respecting possible ‘Charter’ infringements.
· The EPS proposal to amend the Nuisance Bylaw would define graffiti and make it a violation to place graffiti or permit graffiti to be placed on property adjacent to streets and public places. It also suggests an offence be created for owners and occupiers who fail to maintain property adjacent to streets and public places free from graffiti. The proposal recommends that the consequences and fines currently found in the Nuisance Bylaw are sufficient.
· The Nuisance Bylaw deals with violations through the issuance of a “direction” to the owner of the property. The Nuisance Bylaw details penalties for failing to comply with such a direction. The penalty for a first offence is $250 while subsequent offences are punishable by a fine of $500. In addition, the Nuisance Bylaw authorizes the City to complete any work necessary to remedy the nuisance condition and to charge the owner for the cost of the work done. In practical terms, the second EPS proposal may expand the definition of a nuisance condition to include all graffiti, from artistic murals to explicitly offensive drawings.
2. Does Bylaw Enforcement support these changes?
· Administration supports the use of existing legislation within the Municipal Government Act (MGA) to deal with graffiti problems rather than the EPS proposal alternatives. The City has the jurisdiction to regulate the display of graffiti pursuant to Section 546 of the MGA. Rather than create a new bylaw, or amending an existing bylaw, a more effective tool to deal with graffiti would be to use 546 Enforcement Orders. These Orders can require an owner to remedy a graffiti situation if the City can prove: a) the graffiti is causing the property to be in an unsightly condition; and b) the property, because of it’s unsightly condition, is detrimental to the surrounding area. The information provided in the EPS proposal indicates that graffiti does indeed contribute to a variety of conditions that are detrimental to the surrounding community. With this in mind the MGA is viewed as the best choice for regulating the display of graffiti. This approach concentrates on achieving a solution to the situation rather than imposing a monetary fine.
· If the required remedial action is not performed the City may carry out the necessary action and add the costs to the tax roll of the property. Alternatively, this could be an appropriate time to employ community programs such as “White Walls”, a paint over program, to resolve the offence with no cost to the property owner.
· It is important to note that the creation of a new bylaw, or amending the existing bylaw, would carry large fines for non-compliance that punish the property owner who has already been victimised by the party responsible for the placement of the graffiti. With this latter point in mind initial meetings between the Planning and Development Department (Complaints and Investigations Section) and EPS have been positive and supportive of the MGA 546 Enforcement Order approach.
3. What steps would need to be taken to create the necessary changes in the present Bylaw?
· Administration’s recommended MGA approach can easily be relayed to front line police members with Planning and Development Department (Bylaw Enforcement staff) providing input into developing the necessary enforcement policies and protocols. There would be no legislative changes required. However, if Council chose the EPS proposal it would initially require the EPS and Corporate Services Department (Law Branch) to review the proposal and establish principles to determine the bylaw scope. A report outlining the required changes and any additional concerns should come back to Committee before a draft bylaw is requested.
4. Any other information that is relevant.”
· There are a number of legal concerns and considerations in passing a Graffiti Bylaw. One concern relates to current the federal legislation. The Criminal Code of Canada (Criminal Code) already sets out an offence for someone causing damage to someone else’s property. The placing of graffiti on such property fits under this section. Significant legal issues arise when a municipality attempts to regulate an activity already regulated by the Parliament of Canada pursuant to their criminal law powers. This is especially true when penalty provisions are not consistent. Perpetrators who are identified and apprehended should be pursued under the more significant Criminal Code legislation. Another concern centres around the basis for arguing that prohibiting the display of graffiti contravenes the freedom of expression guaranteed within the Canadian Charter of Rights and Freedoms (the Charter). Assuming, only for the purposes of this report, that such a contravention could be proven the City could still defend the bylaw on the basis of the Charter allowing “reasonable limits” to be placed on certain rights. The legal test with respect to such limits is too complex to be discussed here in detail. Essentially, the City would have to show the objective of the bylaw, or amendment, relates to a concern that is “pressing and substantial” and the infringement is “proportional”, balancing the interests of society and individuals.
· In considering the possible amendment to the Nuisance Bylaw it is important to consider the true purpose of the Nuisance Bylaw. It is intended to promote the maintenance of property within the City in a tidy, pleasant and safe condition and to minimise nuisances. The Nuisance Bylaw defines a “nuisance” and offers examples of a nuisance condition. The definition offered describes a nuisance as a property condition that is untidy, unsightly, offensive, dangerous or which interferes with the use or enjoyment of other property. Examples include long grass, trees that interfere with public utilities, wrecked or dismantled vehicles and smelly compost heaps. It is questionable whether all types of graffiti would be appropriate additions to the definition of a nuisance condition in the Nuisance Bylaw.
· The EPS proposal makes reference to gang related graffiti in our City. It could be argued that graffiti relating to gang activity meets the Nuisance Bylaw nuisance condition definition of an offensive or dangerous condition. However, it’s unlikely the City could prove that gang graffiti as demonstrably offensive given its innoxious nature. As stated in the proposal, this type makes up only a very small percentage of all graffiti. A City of Calgary document included in the EPS proposal states that less than 3% of that City’s graffiti is gang related.
· The City has addressed the issue of graffiti on a number of fronts in recent years. These programs include public awareness and maintenance programs by the Transportation and Streets Department, the Edmonton Police Service “White Walls” program and efforts by the Progressive Group for Independent Business and the Anti -Graffiti Association of Alberta in conjunction with community volunteer groups. The proposal suggests that programs such as “White Walls” require greater support in order to effectively target graffiti. Discussions with one of the proposal’s authors indicate that, while current volunteer activities can be very effective, they are hampered when property owners refuse to allow program participants to paint over graffiti on their property even when there is no cost. It appears to be this minority of property owners who frustrate community program efforts and contribute towards the perception of a need for new legislation to deal more effectively with the display of graffiti. In summary, using a combination of well-supported community programs and existing legislation may be an appropriate alternative to creating a new bylaw or amending the Nuisance Bylaw in solving the graffiti issue in our City.
Budget/Financial Implications
A Graffiti Bylaw would likely increase the number of graffiti related complaints registered with the City. The volume of these complaints would tax current resources. Increases in enforcement responsibilities related to graffiti would require additional enforcement resources and funding.
Background Information Available Upon Request
- Edmonton Police Service’s Report – Edmonton’s Graffiti Problem
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