R. v. Guignard
--------------------------------------------------------------------------------
Roger Guignard Appellant
v.
City of Saint-Hyacinthe Respondent
Indexed as: R. v. Guignard
Neutral citation: 2002 SCC 14. File No.: 27704.
2001: October 3; 2002: February 21.
Present: McLachlin C.J. and L'Heureux-Dubé, Gonthier,
Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC
Constitutional law -- Charter of Rights -- Freedom of
expression -- Signs -- Sign erected by individual on one of his buildings
expressing dissatisfaction with services of insurance company -- Individual
convicted of contravening municipal by-law prohibiting erection of advertising
signs outside industrial zone -- Whether by-law infringes freedom of expression
-- If so, whether infringement justifiable -- Canadian Charter of Rights
and Freedoms, ss. 1, 2(b) -- City of Saint-Hyacinthe planning by-law No.
1200, ss. 2.2.4 "enseigne" (sign), "enseigne publicitaire"
(advertising sign), 14.1.5(p).
Municipal law -- By-law -- Validity -- Signs -- Sign
erected by individual on one of his buildings expressing dissatisfaction
with services of insurance company -- Individual convicted of contravening
municipal by-law prohibiting erection of advertising signs outside industrial
zone -- Whether by-law infringes freedom of expression -- If so, whether
infringement justifiable -- Canadian Charter of Rights and Freedoms, ss.
1, 2(b) -- City of Saint-Hyacinthe planning by-law No. 1200, ss. 2.2.4
"enseigne" (sign), "enseigne publicitaire" (advertising
sign), 14.1.5(p).
G erected a sign on one of his buildings expressing
his dissatisfaction with the services of an insurance company. When he
refused to take the sign down, the respondent City charged him with contravening
s. 14.1.5(p) of City of Saint-Hyacinthe planning by-law No. 1200, which
prohibited the erection of advertising signs outside an industrial zone.
The Municipal Court convicted G, finding that the by-law prohibited the
type of sign erected by G and that, although this prohibition infringed
freedom of expression as guaranteed by s. 2(b) of the Canadian Charter
of Rights and Freedoms, it was justified by s. 1 of the Charter.
Held: The appeal should be allowed. Section 14.1.5(p)
and the definition of the words "enseigne" (sign) and "enseigne
publicitaire" (advertising sign) in s. 2.2.4 of the by-law are declared
invalid. The declaration of invalidity is suspended for a period of six
months.
Freedom of expression is fundamental to the life of
every individual and plays a critical role in the development of our society.
Because commercial expression is protected by s. 2(b) of the Charter,
commercial enterprises have the constitutional right to engage in activities
to inform and promote, by advertising. On the other hand, consumers also
have freedom of expression, which sometimes takes the form of "counter-advertising"
to criticize a product or make negative comments about the services supplied.
In this respect, simple means of expression, such as posting signs, are
the optimum means of communication for these consumers. Given the tremendous
importance of economic activity in our society, a consumer's "counter-advertising"
assists in circulating information and protecting the interests of society
just as much as does advertising or certain forms of political expression.
This type of communication may be of considerable social importance, even
beyond the purely commercial sphere. By restricting the right to use this
optimum means of expression to certain designated places, the impugned
by-law directly infringes freedom of expression. This infringement impacts
especially on the freedom of expression of a person who does not have
access to substantial financial resources. Although the impugned provisions
of the by-law were certainly not designed with a view to preventing a
member of the public from engaging in "counter-advertising",
if the by-law is applied literally, its effect is to make it impossible
for any individual to post signs criticizing the practices, products or
services of a business.
The impugned by-law is not justifiable under s. 1 of
the Charter. While the prevention of visual pollution is a reasonable
objective, an examination of the practical effects of the by-law shows
that the City did not meet any of the tests involved in the justification
process. The rational connection between the by-law and its objective
was not established. As it stands, the by-law prohibits only those signs
that expressly indicate the trade name of a commercial enterprise in residential
areas. All other types of signs of a more generic nature, although they
are just as polluting from a visual point of view, are exempt from the
by-law. On the question of minimal impairment, the by-law is not a reasonable
solution as among the solutions normally available to a government within
the latitude it has to make these judgments. The by-law severely curtails
G's freedom to express his dissatisfaction with the practices of his insurance
company publicly. Finally, the impact of the by-law on G's freedom of
expression is disproportionate to any benefit that it secures for the
municipality.
Cases Cited
Referred to: Groupe Commerce, Cie d'assurances v. Guignard,
[1998] Q.J. No. 695 (QL); Nanaimo (City) v. Rascal Trucking Ltd., [2000]
1 S.C.R. 342, 2000 SCC 13; Montréal (City of) v. Amusements Inc.,
[1985] 1 S.C.R. 368; Shell Canada Products Ltd. v. Vancouver (City), [1994]
1 S.C.R. 231; 114957 Canada Ltée (Spraytech, Société
d'arrosage) v. Hudson (Town), 2001 SCC 40; R. v. Sharpe, [2001] 1 S.C.R.
45, 2001 SCC 2; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1
S.C.R. 927; Thomson Newspapers Co. v. Canada (Attorney General), [1998]
1 S.C.R. 877; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712;
Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 S.C.R.
232; RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R.
199; Ramsden v. Peterborough (City), [1993] 2 S.C.R. 1084; Committee for
the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139; R. v. Oakes,
[1986] 1 S.C.R. 103; Dagenais v. Canadian Broadcasting Corp., [1994] 3
S.C.R. 835; Thomson Newspapers Co. v. Canada (Attorney General), [1998]
1 S.C.R. 877.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, art. 1, 2(b),
3.
Charter of Human Rights and Freedoms, R.S.Q., c. C-12,
s. 3.
Code of Penal Procedure, R.S.Q., c. C-25.1.
Règlement d'urbanisme no 1200 de la Ville de Saint-Hyacinthe,
arts. 2.2.4 "enseigne", "enseigne publicitaire", 14.1.5(p).
Authors Cited
Brun, Henri, et Guy Tremblay. Droit constitutionnel,
3e éd. Cowansville, Qué.: Yvon Blais, 1997.
Hogg, Peter W. Constitutional Law of Canada, vol. 2,
loose-leaf ed. Scarborough, Ont.: Carswell, 1997 (updated 2000, release
1).
Rothstein, M. "Section 1: Justifying Breaches of
Charter Rights and Freedoms" (1999-2000), 27 Man. L.J. 171.
APPEAL from a judgment of the Quebec Court of Appeal
rendered November 17, 1999, dismissing the appellant's appeal from a judgment
of the Quebec Superior Court (Criminal Division), [1997] Q.J. No. 3213
(QL), dismissing the appellant's appeal from a judgment of the Municipal
Court of Saint-Hyacinthe, [1997] Q.J. 5016 (QL). Appeal allowed.
Daniel Payette, for the appellant.
Stéphane Forest, for the respondent.
Solicitors for the appellant: Boivin Payette, Montréal.
Solicitors for the respondent: Forest Guilmain Arpin,
Saint-Hyacinthe.
CITATION
Before publication in the S.C.R., this judgment should be cited using
the neutral citation: R. v. Guignard, 2002 SCC 14. Once the judgment is
published in the S.C.R., the neutral citation should be used as a parallel
citation: R. v. Guignard, [2002] x S.C.R. xxx, 2002 SCC 14.
LEBEL J. --
I. Introduction
1 The issue in this appeal is whether the provisions
of the by-laws of the City of Saint-Hyacinthe governing the posting of
signs violate s. 2(b) of the Canadian Charter of Rights and Freedoms.
The appellant, Roger Guignard, was convicted in the Municipal Court of
erecting a sign on one of his buildings expressing his dissatisfaction
with the services of an insurance company.
2 The courts below found that the municipal by-laws prohibited
the type of sign erected by Mr. Guignard and that, although this prohibition
infringed freedom of expression, it was justified by s. 1 of the Charter.
For the following reasons, I would allow the appeal, quash Mr. Guignard's
conviction and enter an acquittal with respect to the offences with which
he was charged.
II. Origin of the Case
3 In 1996, Guignard owned a property within the City
of Saint-Hyacinthe. An insurance policy issued by a major company, the
Commerce Group, covered the risks relating to this property. A loss occurred
in May 1996 and the appellant claimed an indemnity from his insurer. Payment
was delayed and Mr. Guignard eventually became impatient. He placed a
sign on another of his buildings that eloquently expressed his dissatisfaction.
On August 8, 1996, in response to a complaint, a municipal inspector ordered
the appellant to remove the sign within 24 hours. According to the inspector,
the sign contravened the zoning by-law of the City, which prohibited the
erection of advertising signs outside an industrial area (Règlement
d'urbanisme no 1200 de la Ville de Saint-Hyacinthe, s. 14.1.5(p). The
sign read as follows:
[TRANSLATION]
DATE OF INCIDENT10-05-96
DATE OF REPAIRS10-13
DATE OF CLAIM10-05-96
WHEN A CLAIM IS MADE,
ONE FINDS OUT ABOUT
POOR QUALITY INSURANCE
COMMERCE GROUP
THE INCOMPETENT
INSURANCE COMPANY
HAS STILL NOT INDEMNIFIED ME
4 When he refused to comply, the municipality charged
Guignard with contravening the by-law. This complaint was governed by
the Code of Penal Procedure of Quebec, R.S.Q., c. C-25.1. The charge was
worded as follows:
[TRANSLATION]
On or about September 25, 1996, did erect an advertising sign in a zone
where this kind of sign is prohibited, contrary to s. 14.1.5 (p) of the
zoning by-law of the City of Saint-Hyacinthe.
5 At the same time, Mr. Guignard's insurer applied to
the civil courts for an interlocutory injunction order requiring the appellant
to remove his sign. The Superior Court granted the application and ordered
the sign removed. That judgment was set aside on March 10, 1998, by the
Quebec Court of Appeal, which found that the sign was not defamatory in
nature and that Mr. Guignard's freedom of expression must take precedence
(Groupe Commerce, Cie d'assurances v. Guignard, [1998] Q.J. No. 695 (QL)).
During that period, the penal case was proceeding, since Guignard was
still contesting the conviction entered by the Municipal Court.
III. Judicial Background
A. Municipal Court, [1997] Q.J. No. 5016 (QL)
6 In the Municipal Court, Guignard raised a number of
defences. First, he maintained that the proceedings that had been instituted
constituted an abuse of process. Second, he argued that the by-law did
not apply to this type of advertising. Third, he contended that the by-law,
as interpreted by the municipality, was an unjustified infringement of
his freedom of expression, which is protected by s. 2(b) of the Charter.
7 Judge Lalande rejected all of these defences. First,
he found that the existence of civil proceedings between Guignard and
his insurer did not justify a stay of the penal proceedings even though
they were based on the same facts, since the civil consequences of a fact
situation must be distinguished from its penal aspects.
8 Second, Judge Lalande found that the sign was a "billboard"
or an "advertising sign" within the meaning of the zoning by-law
since the by-law did not distinguish between positive advertising and
negative advertising. The unlawful nature of the sign having been established,
Judge Lalande then considered the argument based on freedom of expression.
He acknowledged that the sign was a form of expression that was protected
by s. 2(b), but found that the infringement was justified under s. 1 of
the Charter (at paras. 24-26):
[TRANSLATION] In this case, it is clear to the Court
that the first test has been met. In fact, there is no doubt, when we
read the provisions of the complainant's zoning by-law relating to signs,
that they were passed in order to achieve the objective of maintaining
a pleasant environment for the public by protecting it against visual
pollution.
It also appears to the Court that the second test, on
the issue of minimal impairment, has been met. The by-law does not prohibit
all forms of signs within the entire municipality. Rather, it limits signs
to those locations where they are necessary, that is those places where
an activity that may benefit from the sign is carried on. Moreover, it
even permits signs in industrial zones relating to a business that is
carried on in another zone.
Since the by-law both permits signs in locations where
the business is carried on and, at least in one zone, permits signs off
the site which is being advertised, the court concludes that there is
reasonable proportionality between the measures used to limit freedom
of expression and the objective sought to be achieved, namely preventing
visual pollution.
The Municipal Court therefore rejected all the appellant's
defences and convicted him of the offence with which he had been charged.
B. Superior Court (Criminal Division), [1997] Q.J. No.
3213 (QL)
9 The appellant appealed unsuccessfully to the Superior
Court under the Code of Penal Procedure of Quebec. After reviewing the
by-law, Downs J. found that the Municipal Court had correctly interpreted
the provisions in question and that they did not constitute an unjustified
infringement of the constitutional guarantee of freedom of expression.
C. Court of Appeal
10 On November 12, 1997, Forget J.A. granted Guignard
leave to appeal from the judgment of Downs J. On November 17, 1999, ruling
on the merits, the Court of Appeal dismissed the appeal, stating simply
that the earlier judgments were correct. Guignard was subsequently granted
leave to appeal to this Court, [2000] 2 S.C.R. ix.
IV. Constitutional Questions
11 On January 19, 2001, the Chief Justice stated the
following constitutional questions:
1. Do s. 14.1.5(p) and the definition of the expressions
"enseigne" (sign) and "enseigne publicitaire" (advertising
sign) in the Règlement d'urbanisme de la Ville de Saint-Hyacinthe
limit the right guaranteed by s. 2(b) of the Canadian Charter of Rights
and Freedoms?
2. If the answer to Question 1 is "yes", can
these limits be justified under s. 1 of the Charter?
V. Statutory Provisions
12Canadian Charter of Rights and Freedoms
1. The Canadian Charter of Rights and Freedoms guarantees
the rights and freedoms set out in it subject only to such reasonable
limits prescribed by law as can be demonstrably justified in a free and
democratic society.
2. Everyone has the following fundamental freedoms:
. . .
(b) freedom of thought, belief, opinion and expression,
including freedom of the press and other media of communication;
Règlement d'urbanisme no 1200 de la Ville de
Saint-Hyacinthe
[TRANSLATION]
2.2.4 Definitions
Sign:
Any writing (letters, words, numbers), any pictorial
representation (drawing, engraving, photograph, illustrations, images),
any emblem (logo, symbol, trade mark), any flag (banner, pennant, standard,
streamer), any advertising billboard or any other similar object or similar
means that:
-is attached to, is part of or is placed on or outside
a building or on land;
-is used to notify, inform, announce, advertise or for
other similar purposes.
Advertising sign:
Sign indicating at least the name of a company and drawing
attention to a business, a product, a service or an entertainment carried
on, sold or offered other than the property on which it is placed.
14.1.5 The following signs are prohibited:
(p) advertising signs and advertising billboards, except
those located in industrial zones.
VI. Analysis
A. Issues
13 In this Court, the parties argued only the constitutional
issue. In the Municipal Court, Guignard had proposed an alternative to
that argument by suggesting a restrictive interpretation of the municipal
by-law. As a rule, the courts must ensure that the impugned provisions
of an Act or regulation can be interpreted in a manner that is consistent
with the constitutional guarantees before submitting it to constitutional
scrutiny. That is, they must avoid applying the provisions of the Charter
prematurely, by first ascertaining whether an adequate alternative solution
could be found by applying the relevant principles. For instance, in proceedings
challenging the constitutional validity of a municipal by-law, the courts
will first determine whether it complies with its enabling legislation
(see Nanaimo (City) v. Rascal Trucking Ltd., [2000] 1 S.C.R. 342, 2000
SCC 13; Montréal (City of) v. Arcade Amusements Inc., [1985] 1
S.C.R. 368). They will then ascertain whether these municipal powers have
been exercised in a manner that complies with the general principles governing
municipal by-laws. Ultimately, they must consider the meaning of the impugned
provision of the by-laws and decide whether it can be interpreted in a
manner that is consistent with the constitutional guarantee at issue.
14 In this case, there is no doubt that municipal legislation
in Quebec authorizes the respondent's zoning by-law. The efforts made
to find a more restrictive meaning that would make it consistent with
freedom of expression were unsuccessful in the Municipal Court and were
not repeated. Such an attempt would in any event have failed again, given
the plain words of the by-law. In fact, the expression "advertising
sign" in s. 2.2.4 of the Règlement d'urbanisme no 1200 de
la Ville de Saint-Hyacinthe refers to any sign that includes a trade name
and attracts attention, either favourable or negative, to a business,
product or service. The appellant's sign is indisputably covered by this
definition. The constitutional issue cannot therefore be avoided.
B. Arguments of the Parties
15 The appellant argues that the municipal by-law violates
s. 2(b) of the Charter and is not justified by s. 1. He contends, more
specifically, that the effect of s. 14.1.5 and the definitions of "sign"
and "advertising sign" in s. 2.2.4 of the by-law is, for all
practical purposes, to prohibit the posting of a consumer's unfavourable
opinion of a business, product or service. He argues that the means adopted
by the respondent to prevent visual pollution in the municipality are
disproportionate, and needlessly infringe freedom of expression. In his
statement of the relief sought, however, Guignard seems to be seeking
to have the by-law read down, or perhaps to be excluded or exempted from
the application of the by-law, while at the same time challenging its
validity.
16 The respondent denies that its by-law violates the
guarantee of freedom of expression. It recognizes that the appellant's
sign conveys a meaning but contends that neither the purpose nor the effect
of the by-law is to limit freedom of expression. It maintains that the
aim of the impugned provisions is to prevent visual pollution and driver
distraction. Finally, the respondent submits that the by-law does not
violate the appellant's freedom of expression since publicizing a private
dispute does not promote any of the three values underlying freedom of
expression. The respondent identifies those values as the search for truth,
participation in social or political decision-making and diversity in
forms of individual self-fulfilment and human flourishing. This argument
suggests that the appellant has failed even to establish any infringement
of freedom of expression, which would mean that justification under s.
1 of the Charter is unnecessary. However, if this Court finds that the
by-law limits freedom of expression, the respondent contends that the
restriction is justified under s. 1 of the Charter, and that this exercise
of municipal powers is accordingly valid and the judgments of the Quebec
courts should be upheld.
C. Importance of Municipal Governments
17 This Court has often reiterated the social and political
importance of local governments. It has stressed that their powers must
be given a generous interpretation because their closeness to the members
of the public who live or work on their territory make them more sensitive
to the problems experienced by those individuals. (See Shell Canada Products
Ltd. v. Vancouver (City), [1994] 1 S.C.R. 231; Nanaimo (City) v. Rascal
Trucking Ltd., supra; 114957 Canada Ltée (Spraytech, Société
d'arrosage) v. Hudson (Town), 2001 SCC 40.) Apart from the legislative
framework and the general principles of administrative law that apply
to them, municipal powers must be exercised in accordance with the principles
of the Charter, as must all government powers.
18 Since we are dealing with a subject matter that falls
within the legislative jurisdiction of the National Assembly of Quebec,
it should be noted that Guignard could just as well have challenged the
provisions in question on the basis of s. 3 of the Charter of Human Rights
and Freedoms, R.S.Q., c. C-12, which expressly protects freedom of opinion
and expression. Because of the positions adopted by the parties, however,
the analysis of the case will be confined to a consideration of the relevant
provisions of the Canadian Charter of Rights and Freedoms. I shall begin
by determining whether there is a limitation on freedom of expression
and then examine the problem of justification.
D. Freedom of Expression
19 This Court attaches great weight to freedom of expression.
Since the Charter came into force, it has on many occasions stressed the
societal importance of freedom of expression and the special place it
occupies in Canadian constitutional law. Very recently, in the highly
sensitive context of an examination of the provisions of the Criminal
Code relating to child pornography, McLachlin C.J. recalled the fundamental
importance of freedom of expression to the life of every individual as
well as to Canadian democracy. It protects not only accepted opinions
but also those that are challenging and sometimes disturbing (R. v. Sharpe,
[2001] 1 S.C.R. 45, 2001 SCC 2, para. 21).
20 This freedom plays a critical role in the development
of our society. It makes it possible for all individuals to express their
views on any subject relating to life in society (see Sharpe, supra, at
para. 23). The content of that freedom, which is very broad, includes
forms of expression the importance and quality of which may vary. Some
forms of expression, such as political speech, lie at the very heart of
freedom of expression. (See Sharpe, at para. 23; Irwin Toy Ltd. v. Quebec
(Attorney General), [1989] 1 S.C.R. 927, at p. 976; Thomson Newspapers
Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877.)
21 In applying s. 2(b) of the Charter, this Court has
recognized the substantial value of freedom of commercial expression.
The need for such expression derives from the very nature of our economic
system, which is based on the existence of a free market. The orderly
operation of that market depends on businesses and consumers having access
to abundant and diverse information. Thus, in Ford v. Quebec (Attorney
General), [1988] 2 S.C.R. 712, at pp. 766-67, this Court rejected the
argument that commercial speech was not subject to the constitutional
guarantee
[g]iven the earlier pronouncements of the Court to the
effect that the rights and freedoms guaranteed in the Canadian Charter
should be given a large and liberal interpretation, there is no sound
basis on which commercial expression can be excluded from the protection
of s. 2(b) of the Charter.
22 Similarly, in Rocket v. Royal College of Dental Surgeons
of Ontario, [1990] 2 S.C.R. 232, which dealt with the constitutionality
of a by-law limiting the right of dentists to advertise, this Court reiterated
at p. 241 that advertising was a form of expression protected by s. 2(b)
since it fostered informed economic choices:
The first question is whether the protection conferred
by s. 2(b) applies to commercial speech, such as advertising. The argument
against applying s. 2(b) to commercial speech rests on the proposition
that the Charter was not intended to protect economic interests. This
argument has been rejected by the Court on the ground that advertising
involves more than economics. In Ford, the Court noted advertising's intrinsic
value as expression, the protection afforded to the recipients of advertising
as well as the advertisers, and the importance of fostering informed economic
choices to individual fulfillment and autonomy.
See also RJR-MacDonald Inc. v. Canada (Attorney General),
[1995] 3 S.C.R. 199.
23 The decisions of this Court accordingly recognize
that commercial enterprises have a constitutional right to engage in activities
to inform and promote, by advertising. As we know and can attest, sometimes
with mixed feelings, the ubiquitous presence of advertising is a defining
characteristic of western societies. Usually, it attempts to convey a
positive message to potential consumers. However, it sometimes involves
comparisons and may even be negative. On the other hand, consumers also
have freedom of expression. This sometimes takes the form of "counter-advertising"
to criticize a product or make negative comments about the services supplied.
Within limits prescribed by the legal principles relating to defamation,
every consumer enjoys this right. Consumers may express their frustration
or disappointment with a product or service. Their freedom of expression
in this respect is not limited to private communications intended solely
for the vendor or supplier of the service. Consumers may share their concerns,
worries or even anger with other consumers and try to warn them against
the practices of a business. Given the tremendous importance of economic
activity in our society, a consumer's "counter-advertising"
assists in circulating information and protecting the interests of society
just as much as does advertising or certain forms of political expression.
This type of communication may be of considerable social importance, even
beyond the merely commercial sphere.
24 "Counter-advertising" is not merely a reaction
to commercial speech, and is not a form of expression derived from commercial
speech. Rather, it is a form of the expression of opinion that has an
important effect on the social and economic life of a society. It is a
right not only of consumers, but of citizens.
25 In this respect, simple means of expression such as
posting signs or distributing pamphlets or leaflets or, these days, posting
messages on the Internet are the optimum means of communication for discontented
consumers. The media are still often beyond their reach because of the
cost. In Ramsden v. Peterborough (City), [1993] 2 S.C.R. 1084, this Court
stressed the importance of signs as an effective and inexpensive means
of communication for individuals and groups that do not have sufficient
economic resources. Signs, which have been used for centuries to communicate
political, artistic or economic information, sometimes convey forceful
messages. Signs, in various forms, are thus a public, accessible and effective
form of expressive activity for anyone who cannot undertake media campaigns.
(See Ramsden, at pp. 1096-97; see also Committee for the Commonwealth
of Canada v. Canada, [1991] 1 S.C.R. 139, at p. 198.)
26 By restricting the right to use this optimum means
of expression to certain designated places, the impugned by-law directly
infringes freedom of expression. This infringement impacts especially
on the freedom of expression of a person who does not have access to substantial
financial resources. A limitation of this nature can in fact deprive that
person of the only means of expression that are truly accessible to him
or her. Even when a legislative or regulatory provision is neutral in
appearance, it can have a major impact on the ability of a person or group
to engage in expressive activity (see Irwin Toy, at pp. 974-75).
E. Impact of the By-law
27 I readily concede that the impugned provisions of
the zoning by-law were certainly not designed with a view to preventing
a consumer or member of the public from engaging in "counter-advertising".
However, the by-law prohibits the posting of advertising except in industrial
zones or on the site where the commercial activity is carried on (Règlement
d'urbanisme no 1200 de la Ville de Saint-Hyacinthe, s. 14(1)5(p)). The
definition of "advertising sign" includes any kind of sign that
refers to a particular business by name. The definition is clear in this
regard. Section 2.2.4 defines an advertising sign as a [TRANSLATION] "sign
showing at least a trade name and drawing attention to a business, a product,
a service or an entertainment carried on, sold or offered on a property
other than the property on which it is placed". If a sign includes
a trade name, the by-law prohibits placing it elsewhere than in the location
where the commercial activity takes place or in an industrial zone. No
distinction is made in this regard between favourable advertising and
negative advertising. If the by-law is applied literally, its effect is
to make it impossible for any individual to post signs criticising the
practices, products or services of a business. The two options available
to an individual are to obtain the prior authorization of the business
in order to be able to erect the sign on the premises where the commercial
activity is carried on and to purchase or lease a site in an industrial
zone. While the latter option presupposes the availability of financial
resources, the former would obviously call for a miracle. The most accessible
and effective form of expression for an individual such as Guignard is,
for all practical purposes, prohibited. Guignard has therefore established
an infringement of his freedom of expression. It is now up to the municipality
to establish that the by-law is reasonable and to show that it is consistent
with the values of a free and democratic society, under s. 1 of the Charter.
F. Justification
28 In Sharpe, supra, McLachlin C.J. summarized the onus
imposed on the public authority under s. 1 of the Charter as follows.
To justify the intrusion on free expression, a government must demonstrate,
through evidence supplemented by common sense and inferential reasoning,
that the impugned law meets the tests set out in R. v. Oakes, [1986] 1
S.C.R. 103, and refined in Dagenais v. Canadian Broadcasting Corp., [1994]
3 S.C.R. 835, and Thomson Newspapers Co. v. Canada (Attorney General),
supra. The goal of the impugned law must be pressing and substantial.
The law must be proportionate to the goal in the sense of furthering the
goal, being carefully tailored to avoid excessive impairment of the right,
and productive of benefits that outweigh the detriment to freedom of expression.
(See Sharpe, at para. 78; P. W. Hogg, Constitutional Law of Canada (loose-leaf
ed.), at pp. 36-16 and 36-17; H. Brun and G. Tremblay, Droit constitutionnel
(3rd ed. 1997), at pp. 930-36; M. Rothstein, "Section 1: Justifying
Breaches of Charter Rights and Freedoms" (1999), 27 Man. L.J. 171.)
29 In this case, in addition to denying that the constitutional
guarantee had in any way been violated, the respondent argued, in the
alternative, that its by-law was justified under s. 1 of the Charter on
the ground that it was designed to prevent visual pollution and driver
distraction. The justification process is not limited to the objective
defined. The other tests must also be met, including demonstration of
a rational connection, minimal impairment and proportionality. An examination
of the practical effects of the by-law shows that the respondent did not
meet any of the tests involved in the justification process. To be sure,
the prevention of visual pollution is a reasonable objective. The creation
of zones is an appropriate urban planning exercise that is authorized
by the Act and is very common in most municipalities. It is easy to understand
the reasons that prompt municipalities not to allow any kind of sign,
in any place and at any time. It is a matter of maintaining a pleasant
environment for the residents. However, as it stands, the respondent's
by-law prohibits only those signs that expressly indicate the trade name
of a commercial enterprise in residential areas. All other types of signs
of a more generic nature are exempt from the by-law. Thus, if Guignard
had merely stated on his sign "Don't trust insurance companies"
without anything further, or "Don't trust the insurance company located
at this address", or "Purchase your insurance elsewhere than
in Saint-Hyacinthe", his sign would have complied with the by-law,
even though it was just as polluting from a visual point of view as a
billboard bearing the trade name "Commerce Group". These difficulties
illustrate the arbitrary nature of the ban and of the distinctions that
underlie it.
30 On the question of minimal impairment, the by-law
in question is not a reasonable solution as among the solutions normally
available to a government within the latitude it has to make these judgments.
The by-law severely curtails Guignard's freedom to express his dissatisfaction
with the practices of his insurance company publicly. It forces him to
use advertising methods that presuppose the availability of adequate financial
resources. Alternatively, it restricts him to private or virtually private
communications such as distributing leaflets in the neighbourhood around
his property, which is undoubtedly less effective, to convey to the public
his opinion about the quality of his insurer's services.
31 Finally, the impact of the by-law on Guignard's freedom
of expression is disproportionate to any benefit that it secures for the
municipality. In this respect, we have seen that posting signs is an optimum
means of expression for individuals (see Ramsden, at p. 1102). By limiting
that means of expression, the by-law amounts to a serious and unjustified
infringement of a form of expression that has been commonly used for a
long time and is closely connected to the values underlying the protection
of freedom of expression.
32 The only appropriate remedy in this case is a declaration
that the provisions of the municipal by-law the appellant has challenged
are invalid. Because of the considerable overlap between the definitions
and the provision imposing the ban, the declaration of nullity must apply
to both the definition and the ban itself. That is the relief that follows
from the type of challenge that was brought. A solution that applied solely
and personally to the appellant would not satisfactorily resolve the legal
problem before us. However, given the importance of the zoning by-law
in municipal land use planning and the risk of creating acquired rights,
during a period in which there was a legal vacuum, which could be set
up against a subsequent by-law, that relief must be tempered by suspending
the declaration of invalidity for a period of six months, to give the
municipality an opportunity to revise its by-law. It will no doubt be
in the respondent's interests to rethink the definition of "advertising
sign", in particular, and more clearly identify the real objectives
of the bans imposed. The appellant must therefore be acquitted of the
charge against him.
VII. Costs
33 The appellant is entitled to his costs in this Court.
Moreover, for the other proceedings in the case, which are governed by
the Code of Penal Procedure of Quebec, it is appropriate to award the
appellant costs assessed as a lump sum of $2,000 for all the proceedings
in the Court of Appeal, the Superior Court and the Municipal Court as
well as the disbursements incurred.
VIII. Conclusion
34 For these reasons, the appeal is allowed, the definition
of "enseigne" (sign) and "enseigne publicitaire" (advertising
sign) in s. 2.2.4 of the Règlement d'urbanisme no 1200 de la Ville
de Saint-Hyacinthe and s. 14.1.5(p) of the Règlement are declared
invalid. The declaration of invalidity is suspended for a period of six
months. The judgments of the Quebec Court of Appeal, the Superior Court
and the Municipal Court are set aside and the appellant is acquitted of
the charge against him with costs in this Court and costs limited to a
$2,000 fee plus disbursements incurred in the Quebec Court of Appeal,
the Superior Court (Criminal Division) and the Municipal Court of Saint-Hyacinthe.
35 The constitutional questions are answered as follows:
1. Do s. 14.1.5(p) and the definition of the expressions
"enseigne" (sign) and "enseigne publicitaire" (advertising
sign) in the Règlement d'urbanisme de la Ville de Saint-Hyacinthe
limit the right guaranteed by s. 2(b) of the Canadian Charter of Rights
and Freedoms?
Answer: Yes.
2. If the answer to Question 1 is "yes", can
these limits be justified under s. 1 of the Charter?
Answer: No.
Appeal allowed with costs.
Solicitors for the appellant: Boivin Payette, Montréal.
Solicitors for the respondent: Forest Guilmain Arpin,
Saint-Hyacinthe.
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