HER MAJESTY THE QUEEN (Town of Oakville)-Appellant — v. —, 2014 ONCJ 370

COURT FILE No.: Halton Region 1211 999 00 DATE: August 12, 2014 Citation: R. v. 1676929 Ontario Inc. , 2014 ONCJ 370 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN (Town of Oakville)-Appellant — AND — 1676929 ONTARIO INC.- Respondent Before Justice Roselyn Zisman Heard on May 8, 2014 Reasons for Judgment released on August 12, 2014 Nadia Chandra ………………………………………………………….for the Appellant Steven J.

Gearing…………………………………………………………for the Respondent ZISMAN, J.: Introduction [ 1 ] This is an appeal by the appellant, the Town of Oakville (“Oakville”) from the decision of Justice of the Peace Farnand dated November 26, 2012. The Justice of the Peace dismissed all charges laid against the respondent, 1676929 Ontario Inc. carrying on business as “Advantage Signs”, for displaying mobile, “third party signs” contrary to Oakville’s By-Law No. 2006-005, as a result of finding that section 39 (3) of the Sign By-Law constitutionally invalid as contrary to

section 2(

b) of the Canadian Charter of Rights and Freedoms (“the Charter” ), in a manner that was not saved under

section 1 of the Charter . Legislative History [ 2 ] Oakville’s sign by-law regulation has been the subject of significant judicial determination at various court levels, including twice at the Ontario Court of Appeal as well as the Supreme Court of Canada.

In order to appreciate the context of this appeal it is necessary to outline the history of the judicial challenges and court rulings. [ 3 ] In 1994, Oakville enacted a sign by-law that prohibited billboard signs larger than 7.5 metres (80 square feet) and also prohibited all “third party signs” which were defined as signs that direct attention to products, goods or services not located on the same premises as the signs. [1] [ 4 ] In 2002, the Ontario Court of Appeal in Vann Niagara Ltd. v.

Oakville (Town) [2] (“Vann No.1”), quashed both of the prohibitions contained in the 1994 by-law, on the basis that the provisions contravened

section 2(

b) of the Charter and could not be saved under

section 1 . However, the court recognized that Oakville had legitimate objectives for enacting the by-law namely, “to protect the public from unsafe signs, to reduce distractions that may be an impediment to road safety, to prevent the blight of unsightly signs, and to preserve the unique character of Oakville.” [3] Oakville appealed to the Supreme Court of Canada only with respect to the prohibition on the size restriction contained in the by-law.

The Supreme Court of Canada allowed the appeal and held, in accordance with the dissenting opinion in the Ontario Court of Appeal, that Oakville’s restriction of the size of the signs was constitutional. [ 5 ] Oakville undertook a process of public consultation to remove the total prohibition of third party signs in the 1994 by- law and to find appropriate locations for third party signs. Oakville adopted By-law No. 2006-005 (“2006 by-law”) which permitted third party signs but restricted the locations for such signs. [ 6 ]

Section 39 of the 2006 by-law regulating the permissible location of third party signs provided as follows: 39. No person shall erect, locate or display an advertising sign: (1) if any other sign is also erected, located, or displayed on the property other than a temporary real estate sign with a sign area of no

greater than 4.65 m2(50 sq. ft.) and a maximum height of 3.6 metres(1.8 ft.) or an election sign; (2) on any property North of Dundas Street; (3) on property other than property within an E2 zone under the Zoning By-law; (4) if there is any building on the property, or a building permit has been issued for a building on the property; (5) within 200 metres of any of the following: (

a) any property within a residential zone or legally used for a residential purposes; (

b) the road allowance of any of the following streets: Burloak Drive, Bronte Road (Regional Road 25), Third Line, Fourth Line, Nottinghill Gate, Dorval Drive, Kerr Street, Trafalgar Road, Ford Drive, and Winston Churchill Boulevard; or (

c) the QEW and Highway 403 Corridors; and (6) any closer to the edge of the road allowance than the set back required for buildings and structures other than signs on the property under the provisions of the Zoning By-law; [ 7 ] In 2008, Vann Media Inc. challenged Oakville’s new sign by-law. Specifically it challenged subsections 39 (1), (3), (4), (5) (

a) and (

b) and (6) of the 2006 by way of an application to the Superior Court of Justice [4] for a declaration quashing the by-law as unconstitutional. The application judge quashed the entire by-law and found that Oakville had failed to show that the prohibition of billboard signs to E2 industrial zones, as opposed to other “unremarkable” areas in Oakville, was rationally connected to the valid objectives of the sign by-law or that they minimally impaired the right to freedom of expression. [ 8 ] Oakville appealed to the Ontario Court of Appeal, in Vann Media Inc. v. Oakville (Town) [5] (“Vann No. 2 ).

The court held that the objectives of the 2006 By-law namely, preservation of Oakville’s distinct visual and aesthetic character, the preservation of clutter in the landscape and driver safety were pressing and substantial and rationally connected to the by-law. However, in its

section 1 Charter analysis, the court held that the cumulative effect of the four impugned by-law provisions namely, sections 39 (1), (3), (4) and 5(

b) were unduly restrictive and did not minimally impair the

section 2(

b) Charter right of freedom of expression. The court upheld the other two impugned sections namely, sections 39 (5) (

a) and 39 (6) as they struck an appropriate balance between intrusion on the Charter right and Oakville’s objectives. [ 9 ] In the decision, Justice Rouleau made observations to offer “some limited guidance” [6] to the municipality in re- drafting the by-law so as to minimally impair the

section 2(

b) Charter right as follows: Section 39(1) could be adjusted to allow for more than one sign per property where the property has a very large frontage. Section 39(3) could be adjusted to allow third party signs in “non-prestige” industrial zones located outside of the E2 zones. Section 39(4) could be adjusted to allow third party signs on very large properties where there is a large portion consisting of open space. Section 39(5) (

b) could be adjusted to allow for signs near some of the listed north-south roads or portion of the listed roads. [ 10 ] As a result of the Vann No. 2 decision, Oakville convened a sign by-law working group which included staff representatives from a range of departments and external consultants and initiated public consultation to develop new criteria to replace the four provisions in

section 39 of the 2006 by-law which the Court of Appeal found invalid. [ 11 ] At the public meetings, representatives of the sign industry, members of the business community and local residents attended and written submissions were also received. Oakville acknowledged that the manner in which the public meetings were advertised suggested to some that the sign by-law under consideration was strictly related to billboards and therefore there was little response from the mobile sign industry of which the respondent is a member.

However, the respondent did receive notice of the meetings. [ 12 ] The revised criteria proposed by the working group were accepted by the Oakville town counsel through the enactment of By-law No, 2009-059 that amended

section 39 of the Sign By-law which provides as follows: [ 13 ] 39. No person shall erect, locate or display as advertising sign: (1) (

a) in the case of a ground advertising sign, on the same property as a mobile advertising sign, and in the case of a mobile advertising sign, and in the case a mobile advertising sign, on the same property as a ground advertising sign; and (

b) in the case of a ground advertising sign, within a radius of 300 metres of any other ground advertising sign, and in the case of a mobile advertising sign, within a radius of 300 metres of other mobile advertising sign; (2009-059) (2) on any property North of Dundas Street; (3) on property other than property within an E1 Zone or E2 Zone under the Zoning By-Law; (2009-059); (4) on any property on which another advertising sign has been erected or for which an advertising sign permit has been issued under this By-law, except where the property has a frontage greater than 300 metres; (2009-059) (5) within 200 metres of any of the following:

(

a) any property within a residential zone or legally used for residential purposes; (

b) any property which is used for a school or park, or any property which is designated under

Part IV or

Part V of the Ontario Heritage Act; or (2009- 059) (

c) the QEW and Highway 403 corridors; (6)(

a) any closer to the edge of any road allowance than the following: (2009-059) (

i) in the case of a ground advertising sign, the midpoint between the edge of the road allowance and the set back required for buildings and structures (other than signs on the property) under the provisions of the zoning By-law, provided that in no event shall any portion of a ground advertising sign be erected less than 4.5 metres from the edge of any road allowance; (ii) in the case of a mobile advertising sign, in no event shall any portion of a mobile advertising sign be erected less than 1.5 metres from the edge of any road allowance; (

b) any closer to any property line, other than a road allowance, than a minimum 1.5 metres; (

c) for greater clarity, the setbacks set out in (6) shall apply to ground advertising signs and mobile signs rather than those set out in

Schedule C. Charges against the Respondent [ 14 ] On February 27, 2012, the respondent was charged with three counts of contravening section 7 (3) of the Sign By-law which provides as follows: 7. No person shall: (3) erect, locate or display a sign for which a permit has been obtained except in accordance with the approved plans and drawings submitted as part of the permit application; [ 15 ] The respondent had erected signs at locations outside of the E1and E2 Zones, in contravention of section 39(3) of the Sign By-law. [ 16 ] At the trial, the respondent admitted the elements of the offence but submitted that the Sign by-law violated his right to freedom of expression under

section 2(

b) of the Charter . Oakville conceded that the Sign By-law limited the freedom of expression rights, but asserted it was a reasonable limit under

section 1 of the Charter. Decision under appeal [ 17 ] The trial took place before the Justice of the Peace Farnand on October 1, 2012. The parties filed an Agreed Statement of Fact and an exhibit brief. Donald Macphail the president of 1676629 Ontario Ltd. (“Advantage Signs”) testified and Phillip Bouillon, the manager of by-law endorsement and licensing testified on behalf of Oakville. [ 18 ] On November 26, 2012 Justice of the Peace Farnand ruled that section 39 (3) of the Sign By-law breached the respondent’s right to freedom of expression and was not saved by

section 1 of the Charter . When it was pointed out that the respondent had not been arraigned, after a short discussion about the proper process, the respondent was arraigned on all three charges and he pleaded not guilty.

The Justice of the Peace stated that, “Having made the finding on the motion that the Town of Oakville’s by-law [section 39(3)] is unconstitutional this Court is dismissing all charges.” [7] [ 19 ] In the oral reasons of the Justice of the Peace she acknowledged that Oakville’s objectives in the 2008 by-law namely, to limits the signage that would interfere with the preservation of Oakville’s distinct character, aesthetic nature, avoiding visual clutter and ensuring safety of the public by distractions and preventing blight, were the same objectives upheld by the Court of Appeal in Vann No. 2.

Therefore, she held that, as in Vann No.2, the objectives were “pressing and substantial” and warranted overriding the Charter protected right of freedom of expression, being the first branch of the Oakes [8] test. [ 20 ] However, she held that Oakville had not met the second part of the Oakes test with respect to proportionality under

section 1 of the Charter and stated as follows [9] : The Town must also meet the second part of the test and successfully establish that the by-law is fair and designed to meet the objective and be rationally connected to the objective…. In assessing the second part of the Oakes test the Court has difficulty in digesting the Town’s explanation as to how its measures are fair and not arbitrary and carefully designed to achieve its objectives and that the measures implemented through the Town of Oakville’s by- law does not minimally impair the applicant’s constitutional right to freedom of expression. Standard of Review on Appeal

[ 21 ] Neither counsel addressed the applicable standard of review or the statutory provisions for this appeal. As Certificates of Offence were issued to the respondent, these are

Part 1 offences and therefore this appeal is governed by section 136 (2) of the Ontario Provincial Offences Act . Pursuant to that

section the appeal is conducted by means of a review. [ 22 ] The appeal court “may affirm, reverse or vary the decision appealed from or where, in the opinion of the court, it is necessary to do so to satisfy the ends of justice, direct a new trial”. [10] [ 23 ] I adopt the approach outlined by Justice Duncan in the case of R. v. Gill [11] where he stated at paragraphs 7 and 11: The appeal created by these words could hardly be more generous. Unlike appeals from proceedings under POA

Part III, or those governed by the Criminal Code , for example, the court is not limited as to when it may intervene - in particular it is not required to find that the trial judgment was unreasonable, unsupportable or erroneous in law…or that the sentence imposed at trial was unfit, unreasonable, or erroneous in principle… Even the requirement in

section 138 above that it "is necessary to satisfy the ends of justice" apparently applies only to the order for a new trial, rather than the allowance of the appeal itself… Further, I am of the view that I must review the record before me and reach my own conclusion on the issue. It is not a matter of deferring to the trial justice's conclusion and intervening only if I conclude that her decision was unreasonable. To approach it in that way would be to effectively transpose the

Part III provisions to

Part I and II appeals when the legislature took pains to distinguish between the two. However, where findings of credibility are in issue, I should accept the trial justice's findings unless they are unreasonable. Grounds of Appeal [ 24 ] The appellant, Town of Oakville submits that Justice of the Peace made the following errors of law: 1. The Justice of the Peace acted outside of her limited statutory jurisdiction in that a Justice of the Peace sitting in the Ontario Court of Justice cannot grant declaratory relief and declare a law constitutionally invalid. 2. The Justice of the Peace erred in her

section 1 Charter analysis by: (

i) Failing to have due regard for the empirical evidence with respect to Oakville’s extensive public consultation process and balancing exercise and for the substantial deference which should be accorded to a municipal policy decision; (ii) Made a finding on the “rational connection” branch of the Oakes test which cannot be reconciled with the Court of Appeal decision in Vann No. 2 with respect to an earlier version of the sign by-law; (iii) Imported a commercial “fairness” consideration into the

section 1 Charter analysis specifically commercial fairness as between third party sign advertisers and first party sign users in a manner that fundamentally misapprehended the distinction between first party and third party signage; (iii) Conducted an erroneous assessment of section 39(3) of the Sign By-law by comparing it to the previous version of section 39(3) of the Sign By-law, without considering the impacts that were of concern to the Court of Appeal in Vann No. 2 decision and the cumulative impacts of the amendments to

section 39 in light of the Court of Appeal decision. Analysis Did the Justice of the Peace act outside of her statutory powers? [ 25 ]

Section 52 of the Constitution Act, 1982 , provides that the Constitution is the supreme law of Canada and that any law that is inconsistent with the Constitution is of no force or effect. It follows that no individual or corporation can be convicted of an offence under an unconstitutional law.

Section 24 of the Charter empowers courts of competent jurisdiction to grant remedies for breaches of the Charter. [12] [ 26 ] The Supreme Court of Canada in Cuddy Chicks Ltd. v.

Ontario (Labour Relations Board) [13] confirmed that only a Superior Court has the prerogative jurisdiction to formally declare legislation constitutionally invalid and that a statutory court may only treat the legislation invalid for the purpose of the matter before it. [ 27 ] A Justice of the Peace sitting in the Ontario Court of Justice presiding with respect to proceedings brought under the Ontario Provincial Offences Act is a “court of competent jurisdiction” and therefore has the jurisdiction to grant remedial relief pursuant to section 24(1) of the Charter but does not have the declaratory power to hold a law constitutionally invalid and of no force and effect. [ 28 ] I therefore agree with the submission of counsel for Oakville that if the Justice of the Peace was purporting to exercise a declaratory power she did not have that jurisdiction.

However, the Justice of the Peace did have the power to grant remedial relief pursuant to section 24 (1) of the Charter and I find that by dismissing the charges against the respondent she was only exercising that power. [ 29 ] The submissions by counsel for Oakville misapprehend the distinction between a ruling and a declaration. In this case, the respondent proceeded to trial in the Ontario Court of Justice and raised a defence that his right to freedom of expression had been violated.

The Justice of the Peace had the power to declare the legislation “invalid” as against the respondent as no one can be convicted under an invalid law. After finding the legislation invalid, the Justice of the Peace had the jurisdiction to dismiss the charges against the

respondent. The ruling simply determines the accused’s position in relation to the charge before the court. The ruling does not make a declaration of constitutional invalidity pursuant to section 52(1) of the Constitution Act. [ 30 ] I therefore find the Justice of the Peace acted within her statutory powers and dismiss this ground of appeal. Did the Justice of the Peace err in finding that the Sign By-law did not satisfy the tests under

section 1 of the Charter ? [ 31 ] Oakville acknowledges that the Sign By-law infringes the respondent’s right to freedom of expression under

section 2(

b) of the Charter . The onus therefore falls on the municipality to satisfy the Court that this infringement is reasonable and demonstrably justifiable and therefore saved under

section 1 of the Charter. [ 32 ] In R. v. Oakes [14] , the Supreme Court of Canada held that in order to establish that a limit is reasonably and demonstrably justified, two central criteria must be satisfied. First, the objective which the impugned legislation is designed to serve must be of pressing and substantial importance, sufficient to override a constitutionally protected right or freedom. Secondly, the means chosen to achieve the objectives must satisfy a three pronged proportionality test, as follows: (

a) the measures adopted must be rationally connected to the objectives; (

b) the measures chosen must constitute a minimal impairment on the right; and (

c) there must be a proportionality between the effects of the measure chosen and the objectives. [ 33 ] The Supreme Court of Canada has affirmed that the test in Oakes must be applied with flexibility, having regard to the specific factual and legal context of each case in order to strike the appropriate balance between individual rights and community needs. [15] [ 34 ] In such a contextual analysis, the cases have recognized that in a

section 1 Charter analysis the nature of the expression at issue is relevant. Fundamental or “core” values including the search for political, artistic and scientific truth will warrant a higher degree of protection than for example, commercial expression that falls outside of the core of protected expression under

section 2(

b) of the Charter. [16] [ 35 ] In cases considering a municipality’s ability to regulate third party sign and billboard advertising ,the courts have held that deference is owed to the decisions of municipal councils as the democratically representatives of their constituents absent a clear demonstration that the municipality exceeds its powers and as long as the law meets the Oakes test. [ 17] [ 36 ] I agree with the submissions of counsel for Oakville that the Justice of the Peace erred in law in failing to give any recognition to either of these crucial contextual considerations.

The Justice of the Peace proceeded in her analysis to assume that the commercial expression in the form of third-party advertising was entitled to the same degree of protection as other forms of expression that lie at the core of the

section 2 (

b) Charter values.

The Justice of the Peace did not explain why judicial deference was not owed to the municipal town council’s sign by-law regime instead she suggested an alternative regulatory scheme that was not contemplated by the public consulting process or by the Court of Appeal in its consideration of Oakville’s previous by-law. [18] [ 37 ] The Justice of the Peace accepted that the objectives of the sign by-law of Oakville namely, to limit signage that would interfere with the preservation of Oakville’s distinct character, aesthetic nature, avoiding visual clatter and ensuring safety of the public by reducing distractions and preventing blight, were pressing and substantial and met the first part of the Oakes test and therefore warranted overriding the constitutionally protected right to freedom of expression related to third party advertising signs.

The Justice of the Peace also agreed that these objectives were the same objectives that had been enunciated and upheld by the Court of Appeal in Vann No.1 and Vann No. 2. [ 38 ] I find that the Justice of the Peace erred in the application of the second branch of the Oakes test with respect to her finding that there was no rational connection of the limit of third party signs to the pressing and substantial objectives of Oakville’s sign by-law.

This issue was already determined by the Court of Appeal in Vann No. 2. [19] Further, all of the leading cases regarding third party signs have found that restrictions-even in some cases a total prohibition- are rationally connected to valid municipal objectives to regulating signs. [ 39 ] With respect to the minimal impairment provision, the onus is on Oakville to demonstrate on a balance of probabilities that the means chosen impaired the freedom of expression as little as possible.

The Justice of the Peace failed to acknowledge that in Vann No. 2 the Court of Appeal held that some of the impugned provisions of the former

section 39 by-law achieved the appropriate balance between Oakville’s objectives but it was the cumulative effect of the by-law and the extent of the restrictions on “unremarkable industrial zones” or “non prestige industrial zones” that caused the court to hold that deference should not be accorded to the municipality. [ 40 ] The Justice of the Peace failed to consider the changes made to the by-law as a result of the court’s decision in Vann No. 2. The Justice of the Peace quotes Mr.

Bouillon, the city’s manager of by-law enforcement, as testifying that Oakville considers all mobile signs to be a “blight” but fails to note that he further explained that council accepts that they must exist but with certain regulations and that in response to the court decision the city struck a working committee to determine how to amend the by-law to meet the directions of the court decision to where the sign should be located to minimally impair the impact of the signs. [ 41 ] The Justice of the Peace erred in suggesting that “a sign is a sign” and finding that the by-law, restricting third party signs, is not fair and is arbitrary thereby failing to distinguish the legitimate right of municipality to restrict third party signs.

Although

the Justice of the Peace states that she accepts “to some extent” the town’s submission that some advantage should be given to first party signs she then finds that there is no good reason to find that the absolute advantage given to first party signs. [ 42 ] I agree with the submissions of counsel for Oakville that the Justice of the Peace by focusing and criticising the sign by- law’s policy decision to give greater priority to first party signs caused her to ask the wrong questions and not properly apply the minimal impairment test in Oakes .

The Ontario Court of Appeal in Vann No.2 accepted that restrictions on third party signs had a rational connection to the objectives of the Oakville sign by-law in particular with respect to the objectives of aesthetic and avoidance of visual clutter. These objectives can be practically achieved by establishing setback requirements, vacant lot requirements and restrictions to particular zones. [ 43 ] The Justice of the Peace erred in fact in holding that the only change made by Oakville was adding that the third party signs could be located in E1 zones in addition to E2 zones.

She failed to acknowledge that the other restrictions formerly to the erection in third party signs in E2 zones had also been removed in accordance with the suggestions made by the court in Vann No. 2. The Justice of the Peace therefore erred in failing to consider the cumulative effect of the changes made by Oakville as a result of the Vann No. 2 decision. [ 44 ] With respect to the proportionality between effect and objectives, I find that the Justice of the Peace erred in not considering that the objectives of Oakville sign by-law outweighed the partial prohibition against third party signs.

The by-law balanced the right of Oakville to protect its character and still provided locations for third party signs in the town and provided other types of media advertising such as on buses and bus shelters. [ 45 ] In my review of the evidence in this case, I find that the objectives of Oakville’s by-law, an amended, to prevent aesthetic blight, protect its unique character and protecting traffic safety by reducing visual distractions are rationally connected to the amended by-law and strike the appropriate balance between protecting these objectives and the interests of commercial advertisers.

The measures adopted by Oakville are within the measures that it could rationally adopt and should be accorded a large degree of deference. The benefits of the by-law outweigh its detrimental effects. [ 46 ] In the result, I would allow the appeal and set aside the finding that the by-law is invalid. [ 47 ] As the respondent admitted all of the essential elements of the offence I enter a conviction on the three charges under By- law 39. The total fine payable for each offence is set at $260.00. I therefore fine the respondent a total of $780.00 payable within 60 days.

Released: August 12, 2014 Signed: “Justice Roselyn Zisman”