Interesting documentation regarding municipal sign bylaws..... By Steven J. O’Melia with John Mascarin September 2002 The Supreme Court of Canada’s Ruling The Supreme Court of Canada began its constitutional analysis by reiterating its recent high regard for the social and political importance of local governments, stressing that their powers should be given a generous construction and interpretation because of the closeness and inherent sensitivity of municipal government to the problems and concerns of the people who live and work within their community.7 Having dispensed with this judicial nicety, the Court nevertheless proceeded to strike down the challenged provisions of the by-law. In a relatively rare unanimous decision by a full nine-justice panel, Guignard’s conviction was overturned and the impugned by-law provisions were found to be unconstitutional and incapable of being “saved” under s. 1 of the Charter. The Court found that, although the prevention of visual pollution and driver distraction was a pressing and substantial governmental goal, the means chosen to accomplish this goal were disproportionate to the benefit achieved and did not minimally impair the expressive rights of affected citizens, particularly those from economically disadvantaged groups. It is noteworthy that the Court did not embark on an examination of Guignard’s individual financial means and, as the owner of several buildings, it is doubtful that he could have been characterized as coming from an “economically disadvantaged” group. Nonetheless, the relief he obtained was due in part to the fact that there were other persons, not before the Court, whose expressive rights were in theory being suppressed.The Supreme Court of Canada repeated its consistently-held view that, although the Charter was enacted to protect individual, and not corporate, rights and freedoms, commercial expression fell within the purview of the rights protected by s. 2(b).10 Commercial expression included not only a corporation’s right to promote its products, but a consumer’s ability to share information and criticize products through communications such as “counter-advertising,” which assisted in the circulation of information and the protection of society’s interests just as much as advertising or certain forms of political expression.11 Although the Court acknowledged that the by-law was not crafted with counter-advertising in mind, it found that its effect was to make it practically impossible for individuals to post signs criticizing the practices, products or services of a company unless they could buy or lease land within an industrial zone. Section 2(b)Analysis in the Municipal Context The Supreme Court of Canada’s initial examination of s. 2(b) rights in a municipal context occurred in Ramsden v. Peterborough (City),13 which, unlike Guignard, dealt with the right to post signs on public, as opposed to private, property. In both cases, however, the Court, in striking the balance between aesthetics and unfettered communication, came down clearly on the side of protecting postering and signage as forms of expression.
Posted on: Tue, 11 Mar 2014 16:25:06 +0000
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