AVAILABLE WHERE YOU ARE. Capital Xtra's Kevin Falkingham will vamp up community centre distribution this spring.
A slim legal brief provided to Ottawa city councillors by their legal staff has ended speculation that city hall will attempt to block distribution of Capital Xtra in area community centres.
The four-page document dated Apr 10 outlines the legal precedence and implications of attempting to quash the availability of the newspaper, which has been publicly available in Ottawa since 1993.
It suggests that any Capital Xtra ban would likely prove unconstitutional.
"I'm expecting that the current council now understands the law," says rainbow village councillor Diane Holmes.
City lawyers were "basically telling us that we should not be sussing about with censoring the community newspapers," says Bay ward councillor Alex Cullen.
After being told by city officials that the document was not public - it bears a "Confidential" marker on its first page - Capital Xtra obtained a copy. Ten days later, the document was e-mailed to Capital Xtra's lawyer.
Controversy erupted in February after councillor Maria McRae forwarded to city staff a compliant about Capital Xtra's distribution at the Hunt Club-Riverside community centre. The source of the complaint, the father of a boy attending basketball practice, had copies of the paper trashed by the centre's young front desk clerk.
Other community centres including Jack Purcell, became battlegrounds for the paper's public distribution. Meanwhile, Capital Xtra staffers struggled to keep papers stocked at the centres. McRae asked the city's legal team for advice in March.
"Community newspapers are frequently left in the general public areas of City facilities, and are available to the public on an informal basis in these areas. The City does not review the content of community newspapers. City staff is to treat all community newspapers that are left at City facilities in the same manner. Staff are to maintain the order, cleanliness and appearance of the facilities," says the document. It bears the name of parks and recreation director Aaron Burry and city solicitor M Rick O'Connor.
"The papers are back in Jack Purcell, and I'm working to make sure they're back in all community centres. I'm committed to making sure they are in all the community centres," says Holmes.
At the time, Barrhaven councillor Jan Harder sided with McRae. But since the release of the city's legal brief, a representative from Harder's office confirmed that the councillor had no plans to pursue further action. McRae was unavailable to talk to Capital Xtra readers.
"I'm hoping that cooler heads will prevail," says Cullen.
While some parents may be concerned kids will read material they are not ready for, it is the responsibility of the parent to monitor their child's reading habits, Cullen says.
After articles appeared in Capital Xtra, The Ottawa Citizen and The Ottawa Sun, dozens of letters poured into the councillor's offices. Many supported Capital Xtra, claiming attempts to censor the community paper represented thinly-veiled homophobia. Others expressed personal discomfort with suggestive advertising or objected on religious grounds and asked for the paper to be removed.
The brief appears to address some of these concerns, detailing the legal definition of obscenity and hate literature.
"In the absence of evidence that Capital Xtra (or any other publication) falls into one of the above-noted categories of materials which does not benefit from Charter protection (eg obscene materials), the courts would likely view as unreasonable a City policy that has the effect of prohibiting or limiting the availability of this community paper based on its adult-oriented content alone," the legal opinion states.
Even a blanket ban could prove unconstitutional, following a 1991 Supreme Court of Canada case striking down a regulation that forbade the distribution of pamphlets at the Dorval Airport in Montreal.
"It is significant that the Supreme Court of Canada has stated that there is a greater right to freedom of expression in 'public spaces,' and that members of the public should have access to these public spaces in order to be able to exercise their right to freedom of expression. Examples of such spaces are airports, bus terminals and parks," said the report.
Gareth Kirkby, associate publisher of Capital Xtra is glad it's over but unimpressed that it happened. "City hall took nearly two months to get their head around that. And, of course, they could have had an answer in two and a half hours on the phone and working the computer."
There remain two "minor, but important issues" with the legal brief, he says, citing the procedure for yanking a paper that staffers deem obscene.
"There are two options for the city staffers to pull the paper if they are not comfortable with the material. We've sent them a letter saying that part of the new policy needs to be that the publisher of any paper that's subjected to that needs to be informed," he says.
Kirkby isn't expecting an apology, but he does want the city councillors and administrators to educate their employees about how to handle Capital Xtra. He's also vowing to ensure that all city facilities now carry it.
"We want to be sure that city hall communicate this policy — that Capital Xtra is allowed in all public spaces — all community centres and branch libraries and community health centres, arenas, swimming facilities, seniors facilities and all city owned establishments."