R. v. Thinktank Advertising and Design Inc., 2011 ABQB 168

Court of Queen ’ s Bench of Alberta Citation: R. v. Thinktank Advertising and Design Inc., 2011 ABQB 168 Date: 20110316 Docket: 100175462S1 Registry: Edmonton Between: Her Majesty the Queen Appellant - and - Thinktank Advertising and Design Inc. Respondent _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Sterling Sanderman _______________________________________________________ [ 1 ] In January of 2010, a trial was held before a sitting Justice of the Peace in the Provincial Court of Alberta in Edmonton, Alberta.

At the conclusion of the trial, Thinktank Advertising and Design Inc. was acquitted in relation to a charge of displaying a sign on a highway, contrary to s. 65(1) of Edmonton Bylaw 5590. The charge was preferred after a Peace Officer charged with the responsibility of enforcing the bylaw observed a vehicle owned by the Respondent parked on a side street at 137 Avenue and 66 Street in the City of Edmonton. The vehicle had been modified to permit billboards to be placed on its sides to convey a message to passers-by. [ 2 ] Section 65(1) of the bylaw reads:

Except as otherwise permitted in this section, a person shall not place, cause or permit to be placed a sign of any type on a highwayunless a permit authorizing placement of the sign has been issued by the City. [3] The word sign is not defined in the bylaw. The issue that the Traffic Commissioner was asked to decide was whether thevehicle modified in this fashion was a sign within the meaning of the bylaw. He held that it was not. The charge was dismissed.

TheCrown appealed that decision. [4] The Crown takes issue with the application of the definition of sign in the zoning bylaw by the Traffic Commissioner to thisprosecution. He reasoned that two bylaws passed by the same City Council would not have two different

definitions. He applied thedefinition found in the zoning bylaw to give relief to the Respondent. It was an error to apply the definition from the zoning bylaw in thisfashion. [5] The bylaws were enacted by the City of Edmonton for different purposes. The zoning bylaw is to control the use of landwithin the City. Zoning bylaws restrict the use of land and the use, design and function of buildings on that land, including the impactthose buildings and uses have on the surrounding area. [6] The traffic bylaw deals with activities taking place on roadways within the City of Edmonton. It does not deal with anyplanning aspects of roadways.

Section 4.3(1) of the zoning bylaw makes it clear that the bylaw is not intended to regulate roadway use.This is done through the use of the traffic bylaw. To use the definition from a bylaw enacted for a specific purpose and apply it to abylaw lacking a definition is wrong. In Rizzo v. Rizzo Shoes Ltd. (SCC), [1998] 1 S.C.R. 27, Justice Iacobuccispeaking for the Supreme Court of Canada dealt with the

interpretation of legislation. At para. 21 he stated: 21 Although much has been written about the

interpretation of legislation (see, e.g., Ruth Sullivan, Statutory

Interpretation (1997); RuthSullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter "Construction of Statutes"); Pierre-André Côté, TheInterpretation of Legislation in Canada (2nd ed. 1991), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates theapproach upon which I prefer to rely. He recognizes that statutory

interpretation cannot be founded on the wording of the legislationalone. At p. 87 he states: Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in their grammaticaland ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. Recent cases which have cited the above passage with approval include: Canada (Procureure générale) v. Hydro-Québec, (sub nom. R.v. Hydro-Québec) [1997) (SCC), 3 S.C.R. 213 (S.C.C.); Royal Bank v. Sparrow Electric Corp., (SCC), [1997] 1 S.C.R. 411 (S.C.C.); Verdun v. Toronto Dominion Bank, (SCC), [1996] 3 S.C.R. 550 (S.C.C.); Friesenv. R., (SCC), [1995] 3 S.C.R. 103 (S.C.C.). [7] The rules of statutory

interpretation do not allow for the application of sections of one piece of legislation to another unless aspecific provision permits it. Consequently, the reasoning of the Traffic Commissioner was flawed and an acquittal could not be reachedon that basis. [8] Setting aside this flawed reasoning, could the Traffic Commissioner applying the accepted rules of statutory

interpretationreach the same decision? In addition to the passage quoted earlier from Rizzo v. Rizzo Shoes Ltd. there is another rule of statutoryinterpretation that is applicable to this case. The strict construction of penal statutes is applicable where there is ambiguity in relation tothe meaning of a provision. Ambiguity results when the words of a provision must be reasonably capable of more than one meaning.These concepts come from Bell Express Vu Limited Partnership v.

Rex 2002 SCC 42 , [2002] 2 S.C.R. 559. [9] The Canadian Oxford Dictionary defines sign as: a publicly displayed board or placard, etc. used to give information orwarning or to identify or advertise a store, etc. The traffic bylaw defines vehicle as a device in, upon or by which a person or thing maybe transported or drawn upon a highway. The Crown argued that a vehicle can be equated with what it carries or displays. That position is maintained before this Court.

[ 10 ] Having regard to the different

definitions, there is nothing in the bylaw that suggests that the legislative body intended that vehicles that carry billboards or other forms of advertising should be treated as signs. To suggest that a vehicle becomes what it is carrying stretches the words of the enactment beyond what is reasonable and sensible. It would offend the rules of statutory

interpretation to reach this conclusion. To reach this conclusion would be contrary to the “plain and ordinary meaning of language” approach to statutory construction. [ 11 ] The essential character of a vehicle cannot be changed simply by affixing an item to it. A truck outfitted in the manner in which the Respondent’s vehicle was still remains a truck. Affixing advertising panels to its side does not convert it into a sign. Therefore, on the evidence led at trial and applying the proper rules of statutory construction to this vehicle, the offence could not be made out.

The appeal brought on behalf of the City of Edmonton is dismissed. Heard on the 3 rd day of March, 2011. Dated at the City of Edmonton, Alberta this 16 th day of March, 2011. Sterling Sanderman J.C.Q.B.A. Appearances: Mr. Scott McAnsh City of Edmonton Law Office for the Appellant Mr. Charles B. Davison Abbey Hunter Davison for the Respondent