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Bell v. Toronto (City)




Between
Sandra Elizabeth Bell, appellant, and
City of Toronto, respondent



Ontario Court of Justice (Provincial Division)
Toronto, Ontario

Fairgrieve Prov. J.

September 11, 1996.



Counsel:

Murray Klippenstein for the appellant.
Thomas H. Wall for the respondent.

--------------------------------------------------------------------------------



1 ????FAIRGRIEVE PROV. J.:-- At issue in this appeal is the validity of the City
of Toronto by-law which has the effect, it appears to be conceded, of
prohibiting so-called "wild" or "naturalized" gardens. The specific provision in
question is the section of the Housing By-law under the heading, "Rubbish",
which requires that residential yards be kept free of "excessive growths of
weeds and grass".

2 ????The appellant was convicted of refusing to comply with an inspector's
order to cut the weeds and grass in her yard which were alleged to be
"excessive". A $50 fine was imposed. Ms. Bell now challenges the by-law on a
number of different bases that, it should be acknowledged, were not as clearly
articulated at trial as they were in this court where she was represented by
counsel. Mr. Klippenstein asserted that the focus of the appeal should be the
appellant's submission that the impugned portion of the by-law should be found
to be of no force or effect because it violated her freedoms of expression and
conscience guaranteed, respectively, by s. 2(b) and s. 2(a) of the Canadian
Charter of Rights and Freedoms. In addition, relying on traditional municipal
law grounds, the appellant argued that the by-law was invalid both because it
exceeded the City's delegated legislative authority and because it was void for
vagueness and uncertainty.

3 ????The parties stated that they had agreed prior to the appeal that the case
should be decided on the Charter grounds being advanced. The reason given was
that the by-law under which the appellant was convicted has now been
supplemented by a new bylaw which prohibits grass and weeds over 20 cm. in
height, but apparently has the same effect of prohibiting naturalistic gardens.
Although I was informed that prosecutions remain outstanding under the old
by-law under which Ms. Bell was convicted, its precise wording is no longer the
pressing concern it was once perceived to be. Both the appellant and the City
took the position that they were more interested in obtaining a judicial opinion
concerning the constitutional validity of such municipal restrictions in general
(even if it were ultimately only obiter dicta from the Provincial Division) than
they were in a determination of the propriety of Ms. Bell's particular
conviction or the enforceability of the specific provisions of the old by-law.

4 ????In the circumstances, I am prepared to consider issues that may not be
strictly necessary to the disposition of this appeal, although (contrary to the
parties' preference) I think I should deal with the non-constitutional grounds
first. I am aware of the directions given by appellate courts that if a court
can decide a case on its merits without considering constitutional issues, then
it should do so: see Bisaillon v. Keable, [1983] 2 S.C.R. 60 at p. 71, 7 C.C.C.
(3d) 385; Skoke-Graham v. The Queen, [1985] 1 S.C.R. 106 at pp. 121-122, 17
C.C.C. (3d) 289; R. v. Martin (1991), 2 O.R. (3d) 16 at p. 30, 63 C.C.C. (3d) 71
at p. 85 (C.A.). At the same time, I appreciate that the minor consequences of
the trial judgment hardly warranted the cost or effort involved in bringing this
appeal. There have also been more recent authoritative statements recognizing an
accused's right to raise issues relating not only to his "culpability", which
would be sufficient to dispose of a case, but also to the constitutionality of
the law under which he was prosecuted, and I do not think consideration of the
Charter issues here would be inconsistent with that approach: see, for example,
R. v. Keegstra (1995), 98 C.C.C. (3d) 1 at p. 11, 39 C.R. (4th) 205 (S.C.C.); R.
v. Laba (1994), 94 C.C.C. (3d) 385, 34 C.R. (4th) 360 (S.C.C.).

5 ????I should make it clear, however, that I am not purporting to decide in
this case whether the new by-law, which is not in issue here, would survive
Charter scrutiny, even if a constitutional challenge to it would presumably
require the same kind of analysis that is required here and, I assume, lead to
the same conclusion. In RJR-MacDonald Inc. v. Canada (Attorney General) (1995),
100 C.C.C. (3d) 449 at p. 526 (S.C.C.), La Forest J. quoted with approval the
following passage from the judgment of Dickson C.J.C. in Edwards Book & Art Ltd.
(1986), 30 C.C.C. (3d) 385 at p. 436 (S.C.C.):

I should emphasize that it is not the role of this court to
devise legislation that is constitutionally valid, or to pass on
the validity of schemes which are not directs before it, or to
consider what legislation might be the most desirable.


(Emphasis added.) Despite the interest of the parties here in expanding the
scope of this appeal, I cannot disregard the clear directions given by the
Supreme Court.

6 ????In these reasons, I propose to set out the legislative provisions referred
to during the course of argument, briefly summarize the evidence at trial and
the additional evidence adduced at the hearing of the appeal, and then consider
in turn the "municipal law" and Charter challenges to the by-law.

Relevant Legislation

7 ????City of Toronto By-law No. 73-68, passed March 14, 1968, is entitled "A
ByLaw to provide standards of repair and maintenance of dwellings and to prevent
overcrowding of dwellings". Under the heading "Standards", s. 7 reads as
follows:

Rubbish


7.? All parts of a dwelling, including the yards appurtenant
thereto, shall be kept clean and free from


(a)? rubbish, garbage and other debris,
(b)? wrecked, dismantled, inoperative or unused vehicles,
trailers and any other machinery or any parts thereof,
(c)? excessive growths of weeds and grass, and
(d)? objects and conditions, including holes and
excavations, that are health, fire or accident hazards.


(Emphasis added.) Section 3(3)(a) of the by-law requires that the owner of a
dwelling "repair and maintain the dwelling in accordance with the standards",
and s. 36 makes it an offence, punishable by a fine not exceeding $300, to
contravene any of the provisions of the by-law or s. 6 of the City of Toronto
Act, 1936.

8 ????On behalf of the City, Mr. Wall submitted that By-law No. 73-68 was passed
pursuant to the authority conferred by s. 6(2) of the City of Toronto Act, S.O.
1936, c. 84, as amended, which reads as follows:

6.(2) The council of the said corporation may pass by-laws for
fixing a standard of fitness for human habitation to which all
dwellings must conform, for requiring the owners of dwellings to
make same conform to such standard, for prohibiting the use of
dwellings which do not conform to such standard, for governing
and regulating persons in the use and occupancy of dwellings, and
for appointing inspectors for the enforcement of the by-law.


"Dwelling" is defined in s. 6(1)(a) of the Act (as it is by s. 2(2) of By-law
No. 73-68) to include any building used for human habitation "with the land and
premises appurtenant thereto". Section 6(7) provides that a by-law passed under
the authority of the section is enforceable "in the same manner as a by-law
passed under the authority of the Municipal Act".

9 ????As already stated, counsel referred to what they described as the "new
weed by-law" which supplements, rather than replaces, the by-law under which the
appellant was convicted. By-law No. 1994-0440, as amended, appearing at Chapter
202 of the Toronto Municipal Code under the title, "Grass and Weeds", imposes a
height restriction for grass and weeds of 20 centimetres and, among other
things, allows the City to enter the premises and remove grass and weeds
exceeding that height. The relevant parts of the by-law read as follows:

202-1. Maximum height; responsibility of owner or occupant.


A.? No owner or occupant of private land located within the
City's boundaries shall allow the growth of grass and weeds
on his or her land to exceed twenty (20) centimetres in
height.
B.? Where the growth of grass and weeds on private land exceeds
twenty (20) centimetres, the owner or occupant shall, at the
expense of the owner, cut the grass and weeds and remove the
cuttings.


202-2. Notice to Comply


A.? Where the growth of grass and weeds on private land is in
contravention of this chapter, the owner or occupant of the
land shall be given written notice that compliance with the
Article is required within the time specified in the notice,
but no sooner than seventy-two (72) hours after the notice
is given


?????...

202-3. Failure to comply; removal by City; costs.


A.? Where an owner or occupant fails to comply with a notice
given under s. 202-2, the Commissioner of City Property, or
persons acting under his or her instructions, may enter upon
the lands at any time between sunrise and sunset for the
purpose of doing the things described in the notice.


...


C.? Expenses incurred by the City for performing work required
to be done by the notice may be collected with the same
rights and remedies and in the same manner as municipal
taxes.


?????202-4. Exemptions.

?????Nothing in this Article shall affect:

A.? Any right or duty of the City with respect to any highway
right of way; or
B.? The application and enforcement of the Weed Control Act with
respect to noxious weeds growing on private lands, including
within a natural vegetation area.


202-5. Offences.


Any person who contravenes any provision of this Article is
guilty of an offence.


10 ????The Weed Control Act, R.S.O. 1990, c. W.5, cited in the above by-law, was
also referred to by Mr. Klippenstein in his argument. The provincial statute
includes the following section:

3.? Every person in possession of land shall destroy all noxious
weeds on it.


"Noxious weed" is defined in s. 1 to mean a plant deemed to be such under s.
10(2) or designated as such under clause 24(a). Section 10 permits
municipalities to pass by-laws designating a plant as a noxious weed, and s.
24(1)(a) authorizes regulations designating plants as noxious weeds. With
respect to enforcement, s. 13(1) authorizes an inspector to order the
destruction of noxious weeds and, if the order is not compiled with, to cause
the weeds to be destroyed. Section 23(1) of the Act makes it an offence to
contravene s. 3 or an order made under s. 13(1).

11 ????The sections of the Canadian Charter of Rights and Freedoms relied upon
by the appellant were the following:

1.? The Canadian Charter of Right 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.? Every one has the following fundamental freedoms:


(a)? freedom of conscience and religion;
(b)? freedom of thought, belief, opinion and expression,
including freedom of the press and other media of
communication;...


Further, s. 52(1) of the Constitution Act, 1982 states:

52.(1) The Constitution of Canada is the supreme law of Canada,
and any law that is inconsistent with the provisions of the
Constitution is, to the extent of the inconsistency, of no force
or effect.


The Proceedings in the Provincial Offences Court

12 ????On October 28, 1993, the appellant was tried and convicted by Justice of
the Peace A. Walton on a charge alleging that she on the 4th day of August,
1993, at 113 Pickering Street, Toronto, did commit the offence of failing to
comply with an Order dated June 30, 1993, contrary to the City of Toronto By-law
No. 73-68, s. 36. There was really no issue concerning the facts allegedly
constituting the offence. Ms. Bell admitted that she was the owner of the
property at 113 Pickering Street. She also admitted that she had received an
order from a building inspector under the by-law that she remove debris and that
she cut the weeds and tall grass at that location. There was no issue that while
she removed the debris as ordered, she failed to comply with the remainder of
the order concerning her weeds and grass.

13 ????The only prosecution witness was Vito Furlano, a City of Toronto building
inspector. He testified that after Ms. Bell had been given more than 15 days to
comply with the order, he inspected her property to find that the growth of
grass and weeds was, as he stated, "about one foot in height, excessively too
high".

14 ????Ms. Bell gave evidence in her defence. She testified that when she moved
to the property in 1990, its "front lawn" had three plants, a Virginia creeper
vine, sedum, and Kentucky bluegrass. Ms. Bell testified that since that time,
she had added a number of perennials to create what she considered to be "an
environmentally sound wild garden". The plants she added, according to her
evidence, included the following:

... Manitoba maple seeded naturally [sic], a white birch pine
[sic] in the middle of the property, snow and summer cotton
easter [sic], foxglove, variegated euonymous, blue fescue,
juniper, lupine, mulberry, mugo pine, lady's thumb, hybrid tea
rose, hens and chickens and foxtail.


She testified that she created this "wild garden" to reflect her environmental
beliefs. Specifically, she testified that her garden encouraged a diverse
eco-system which had the following advantages:

* It created a green corridor for migrating birds and
butterflies;


* It eliminated the need to over-use treated water resources,
stating that two-thirds of water consumption in the summer is for
watering lawns;


* it eliminated the need for harmful pesticides that contaminated
the water supply;


* it encouraged soil water absorption and renewal of the water
table, rather than water run-off storm sewer problems;


* it avoided the need to burn fossil fuels used for mowing, and
reduced the noise pollution caused by lawn mowers;


*? the perennials and long grass reduced social erosion;


* it helped to return nature in this Province to its
pre-settlement state which in itself, she testified, was an
objective to be respected.


The appellant testified further that her wild garden

... creates a natural setting for children and it exemplifies
peaceful, nurturing co-existence with nature for them. I have a
child and I feel it is important to him that I show him that we
can exist within nature's way, not just our way.


15 ????Ms. Bell also stated in her evidence that none of her plants were noxious
weeds, so that her neighbours could not be concerned on that account. She also
stated that she was part of a larger community which shared these beliefs,
adding the observation that the City itself had recently been "renaturalizing"
its parks and ravines by creating wild areas.

16 ????The prosecutor did not cross-examine the appellant, leaving her evidence
unchallenged. No one suggested that the earlier accumulation of debris on the
property, which had been removed in compliance with the building inspector's
order, brought into question the sincerity of the appellant's beliefs concerning
naturalized gardens.

17 ????Also on behalf of the defence, Ms. Bell called Jane Hayes, a University
of Toronto environmental studies student who had lived at her house from 1991 to
1993. Ms. Hayes testified that she had assisted the appellant in planting the
wild garden at that time. She agreed that the "bio-diversity" of the garden was
important to the neighbourhood since it attracted insects, worms and birds, and
avoided the use of pesticides that killed off the natural insect population. Ms.
Hayes testified as well that although she participated in the care of the
garden, it was true that no one ever cut the lawn.

18 ????Ms. Bell took the position in her evidence at trial that since neither
the word "excessive" nor "weeds" was defined in the by-law, it failed to impose
a clear standard and that it should be considered void for vagueness. Her actual
submissions were not transcribed, but the parties accepted that the appellant's
claim to be exempt from the by-law raised the Charter issues that were advanced
by Mr. Klippenstein on her behalf in this court.

19 ????In his reasons for finding the appellant guilty, after expressing
sympathy for the appellant's beliefs, the learned justice of the peace stated
that her concerns should properly be addressed to City Council. He ruled that
"excessive weeds" were terms that could be found in the dictionary, and without
expressly analyzing or articulating the reasons why the appellant's garden fell
within the by-law's proscription, he found the appellant guilty.

The Additional Evidence on the Appeal

20 ????In accordance with the informal appellate procedures authorized by s.
136(3)(b) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended,
further evidence was adduced with the consent of both parties.

21 ????Recent photographs taken of the appellant's front and back yards were
filed as exhibits. I think it is fair to say that they showed what to the
uninitiated would appear to be an untended plot with tall grass and weedlike
plants, in marked contrast to the carefully manicured conventional lawn and
garden in the front yard of the semi-detached house adjoining the appellant's.
Apparently designed to show their contrasting tastes, one photograph showed the
open front porches of the two dwellings, the neighbour's with matching white
wicker furniture and the appellant's with a collection of worn-out mismatched
upholstered chairs.

22 ????Two expert witnesses were called by the appellant. Harry Merrens, a York
University geography professor, is a landscaping historian specializing in the
relationship between people and their environment. He described his field as
including the study of "the way in which [people's] behaviour in modifying the
earth is mediated through their perceptions, values and beliefs". Prof. Merrens
testified that landscaping has an identifiable historical and social dimension,
and he described the evolving styles of the designed landscape in Western Europe
and North America over the last three or four hundred years. It has moved, he
stated, from the rigid geometry of large French gardens in the late 17th century
to the "unstructured, romantic, natural" gardens of 18th century England, which
were followed by more orderly symmetrical Victorian garden designs. This series
of styles, according to Prof. Merrens, represented the imposition of certain
values on the landscape.

23 ????With respect to current residential landscaping practices in North
America, Prof. Merrens testified that domestic gardens typically involve
straight peripheries marking property lines by neatly clipped hedges or highly
ornamental flower beds accompanied by closely cropped grass. According to his
evidence, this ubiquitous pattern reflects a belief or value system which
carries "a commitment to the achievement of certain static effects that are
considered attractive, by manipulating, dominating or manicuring the
environment", and which expresses an urge to dominate or control nature to
achieve particular pictorial effects.

24 ????In contrast to prevailing practices, however, Prof. Merrens testified
that during the last 20 or 25 years in North America, an increasing number of
people have adopted a different model with a more restrained approach to
controlling nature. While the movement has produced a variety of forms, they are
usually lumped together and described simply as "naturalistic gardens". These
gardens, he stated, reflect different ecological or environmental goals. They
involve a commitment to living in greater harmony with nature, not stunting or
altering nature, but allowing it to express itself in a more spontaneous way.
Such gardens still involve some degree of control, with many emphasizing native,
rather than non-native, plant species, but they eliminate the need for chemical
herbicides, pesticides and power tools to control shrubbery or grass, and they
reduce the use of water. People who are part of the naturalistic gardening
movement are generally motivated by a philosophy with ecological, economic and
spiritual goals that seek a more harmonious and restorative relationship with
nature.

25 ????James Hodgins was the other expert in naturalistic landscaping who
testified on behalf of the appellant. Educated as a biologist, Mr. Hodgins is
the editor of Wildflower Magazine, a founding director of the Canadian
Wildflower Society and the Field Botanists of Ontario, a former director of the
Federation of Ontario Naturalists, and a member of the Canadian Nature
Federation and Eastern Native Plant Alliance. He is also a co-author of a book,
Flowers of the Wild, Ontario and the Great Lakes Region, published by the Oxford
University Press, which has so far sold over 8,000 copies. Mr. Hodgins testified
that the naturalistic landscaping movement has spread rapidly in recent years in
Toronto and across North America. Many municipalities and university campuses
now have naturalized gardens; the public property examples in Toronto he cited
include the extensive restoration project in High Park and the naturalized
woodlawn, prairie and marsh gardens in the new Yorkville Park. Mr. Hodgins
estimated that there are now between two and three thousand naturalized
residential gardens in the City of Toronto.

26 ????Concerning the building inspector's evidence at trial that the plants in
the appellant's front yard were a foot high, Mr. Hodgins testified that about 90
per cent of native plant species grow higher than that. The 20-cm. height limit
in the new by-law, he testified, would eliminate golden rod, New England asters
and evening primrose, all of which are part of the native plant community
generally regarded as "weeds". As well, many grasses grow over a foot high, with
Mr. Hodgins pointing to a half dozen species of grasses, all of which are over a
metre in height, which grow in the flower beds outside the Toronto City Hall.
According to his evidence, the effect of a 20-cm. height restriction (which he
described as "bizarre, incomprehensible and arbitrary") would be to "sterilize"
and "devastate" naturalized gardens, both aesthetically and ecologically.

27 ????Mr. Hodgins further testified that while one can find the word "weed" in
dictionaries, it is a subjective, relative term that has no scientific standing.
Golden rod, for example, is generally considered a weed in North America, but in
England and Germany is regarded as an expensive ornamental plant.

28 ????Finally, Mr. Hodgins testified that one can readily distinguish
naturalized gardens, with their planned choice and diversity of native species,
from the neglected or derelict yard where a dozen or so rural or Eurasian
species would quickly move in and take over. Doing nothing and simply allowing
the forces of nature to prevail is inconsistent with naturalistic landscaping,
he stated, which by definition requires a human presence in the garden. Having
viewed the appellant's front yard in 1994, Mr. Hodgins testified that about 95
per cent of the species had apparently been deliberately planted. Without
suggesting that the appellant's yard should be viewed as a model naturalized
garden, his opinion clearly was that it was distinguishable from the
uncontrolled weed patch that one might associate with an abandoned vacant lot or
a yard completely neglected by its owner.

Is s. 7(c) of By-law No. 73-68 ultra vires?

29 ????A municipality can exercise only those powers which are explicitly
conferred by a provincial statute: see R. v. Greenbaum (1993), 100 D.L.R. (4th)
183 at p. 192 (S.C.C.). Mr. Wall submitted that s. 7(c) of By-law No. 73-68 was
validly passed by the City of Toronto under the authority conferred by s. 6(2)
of the City of Toronto Act, supra, permitting by-laws "fixing a standard of
fitness for human habitation to which all dwellings must conform" and
"prohibiting the use of dwellings which do not conform to such standard".

30 ????While Mr. Wall conceded that the City was not permitted to impose
standards based on aesthetic preferences alone, he took the position that the
prohibition against "excessive growths of weeds and grass" was properly viewed
as part of the regulation of housing standards authorized by the Act. He pointed
to the title of the by-law, purporting to provide "standards of repair and
maintenance of dwellings and to prevent overcrowding of dwellings", as a clear
indication of its valid purpose, although I think it is still necessary to
articulate how the "standards" imposed actually relate to the authorized area of
regulation.

31 ????Even if the standard of maintenance imposed by s. 7(c) is partly or even
primarily aimed at avoiding eyesores or visual blight and, in the process,
contributing to an appearance of well-maintained residential neighbourhoods, I
do not think it follows that it exceeds the authority conferred by s. 6(2) of
the enabling statute. In Ramsden v. City of Peterborough (1993), 106 D.L.R.
(4th) 233 at p. 247 (S.C.C.), Iacobucci J. accepted that one of the objectives
of a municipal by-law which prohibited affixing posters on public property was
the avoidance of "aesthetic blight"; he not only did not consider this an
improper goal, but went on to characterize this concern as "pressing and
substantial". That the anti-weed by-law has an incidental effect of enforcing
aesthetic standards which accord with conventional landscaping tastes is no
reason, in my opinion, to regard it as exceeding the City's powers conferred by
s. 6(2) of The City of Toronto Act, 1936.

32 ????In any event, quite apart from a desire to avoid unsightly and
messy-looking premises, there appear to be valid public health concerns
addressed by the by-law's prohibition of "excessive weeds and grass". It is
common knowledge that many weeds are poisonous or "noxious", to use the word
usually used in this context, and some can cause allergic reactions. While
perhaps not of the same magnitude as health hazards posed by rotting garbage or
open sewers, there is no need to minimize the danger created by, for example,
deadly nightshade for small children or even ragweed for hay fever sufferers.

33 ????Similarly, without wishing to exaggerate the situation, overgrown dry
grass and weeds can be seen as a potential fire hazard. Grass fires on Los
Angeles hillsides threatening residential neighbourhoods, judging by the nightly
news at least, seem to be routine occurrences, and it seems sensible that to
ensure the safety of dwellings here, the City of Toronto would have standards
governing residential properties that are aimed at avoiding similar conditions.
If one is inclined to think that such fire hazards are limited to dry,
southwestern climates and do not apply to damp Ontario, it is interesting that
in R. v. Canadian Pacific Ltd. (1995), 99 C.C.C. (3d) 97 (S.C.C.), the alleged
environmental offence involved controlled burns of dry grass and weeds on a
Kenora railway right-of-way which, it was accepted, posed a potential fire
hazard.

34 ????It is also apparent that some weeds cause the kind of serious
environmental harm that can result when, for example, a foreign plant like
purple loosestrife spreads and disrupts the local ecosystem. Merely because the
less serious damage to lawns caused by, for example, dandelions spreading from a
neighbouring property might seem to be a fairly minor nuisance, I do not think
it is necessarily too trivial for the municipality to consider in its effort to
promote the kind of residential environment obviously favoured by most
residents.

35 ????A similar challenge to the validity of a local by-law was considered
recently in Caledon (Town) v. Mik, [1995] O.J. No. 4076, (Ont. Prov. Div.,
December 22, 1995), where Judge P. Harris found a provision requiring grounds to
be kept free and clear of "materials" and "machinery" to be ultra vires. The
Town claimed to have passed the by-law in the exercise of its power under s. 210
of the Municipal Act, R.S.O. 1990, c. M.45, concerning "health, sanitation and
safety" and, more specifically, item 80 referring to the "cleaning, clearing of
any grounds, yards and vacant lots". Harris Prov. J. found, however, that the
by-law in fact was directed to the unauthorized regulation of aesthetics or the
visual appearance of properties, rather than any legitimate health or safety
concern. It is noteworthy, I think, that at p. 8 of his reasons, Judge Harris
suggested that the references in another part of the by-law to "garbage,
rodents, excessive weed growth and other unsafe conditions" (emphasis added)
were arguably designed to regulate environmental conditions that could adversely
affect public health, sanitation and safety. In any event, I do not think that
the more general authority conferred by the City of Toronto Act to regulate the
"use and occupancy of dwellings" needs to be construed as narrowly as the
"health, sanitation and safety" justification relied on by the municipality in
the case decided by Judge Harris.

36 ????Mr. Klippenstein argued that even if the by-law had a valid purpose that
was other than aesthetic in nature, the Province had already "occupied the
field" of weed regulation, to use his phrase, by enacting the Weed Control Act,
supra. It seems to me, however, that while there may very well be some overlap
between the statute and the by-law, both in terms of some of the health and
environmental concerns they address and the potential duplication when the
allegedly excessive growths are of "noxious weeds" under the Act, the different
provisions have substantially different purposes and effects. The by-law is
directed at standards of maintenance for dwellings and applies to grass and
weeds regardless of whether they have been designated as "noxious". In Re Allen
and City of Hamilton (1987), 59 O.R. (2d) 498 (C.A.), MacKinnon A.C.J.O. found
no conflict or redundancy between a by-law requiring land to be kept free of
garbage, refuse or waste and the section of the Planning Act requiring certain
properties to be cleared of debris or refuse. His Lordship stated at p. 506:

As stated, there is no conflict between the impugned by-law and
tile sections of the Municipal Act to which it refers, and s. 31
of the Planning Act, 1983. Each section of both statutes has its
own purpose and no section, subsection or paragraph is rendered
irrelevant or void by the other enactment. In my view s-ss. 5(1)
and 9(1) of By-Law 84-35 were validly enacted.


I think the same conclusion should be reached here. By-Law No. 73-68 is not
inconsistent with the Weed Control Act, and both provisions can operate
concurrently.

37 ????In my view, s. 7(c) of By-law No. 73-68 was validly passed by Toronto's
City Council in the exercise of its authority to "regulate the use and
maintenance" of residential premises. The appellant's submission that the by-law
should be struck on the ground that it is ultra vires is rejected.

Is s. 7(c) of By-Law No. 73-68 Void for Vagueness?

38 ????It is a fundamental principle of municipal law that a by-law which is
vague or uncertain will not be enforceable. In Hamilton Independent Variety &
Confectionary Stores Inc. v. Hamilton (City) (1983), 143 D.L.R. (3d) 498 (Ont.
C.A.), Lacourciere J.A., on behalf of a five-judge court, stated at p. 506:

The duty of a municipal council in framing a bylaw is to express
its meaning with certainty, 28 Hals., 4th ed., p. 731, para.
1329:


By-laws must be certain. A by-law must provide a clear
statement of the course of action which it requires to be
followed or avoided, and must contain adequate information
as to the duties and identity of those who are to obey,
although all the information need not be apparent on the
face of the by-law. However, if the words of the by-law are
ambiguous but their meaning can be resolved to give a
reasonable result the courts will give effect to that
result. Any penalty provided must also be expressed with
certainty.


The obligation of clarity is to enable every citizen to
understand the by-law in order to comply with it....


...


The need to reaffirm the necessity of explicitness and
specifIcity so that the "well-intentioned citizen" of common
intellIgence will not have to guess at the meaning of the bylaw
is particularly important in a by-law purporting to license and
regulate the sale of magazines.


39 ????It would appear that the "void for vagueness" test in this context does
not differ significantly from what the Supreme Court of Canada has stated
concerning the same doctrine applicable to the criminal law. In R. v. Canadian
Pacific Ltd., supra at p. 125 C.C.C., Gonthier J. summarized it as follows:

In [R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R.
606, 74 C.C.C. (3d) 289, 93 D.L.R. (4th) 36], I enunciated the
appropriate interpretative approach to a s. 7 vagueness claim. As
I observed there, the principles of fundamental justice in s. 7
require that laws provide the basis for coherent judicial
interpretation, and sufficiently delineate an "area of risk".
Thus, "a law will be found unconstitutionally vague if it so
lacks in precision as not to give sufficient guidance for legal
debate" (at p. 313 C.C.C., p. 59 D.L.R.). This requirement of
legal precision is founded on two rationales: the need to provide
fair notice to citizens of prohibited conduct, and the need to
proscribe enforcement discretion.


Further, at p. 126 C.C.C., His Lordship stated:

The use of broad and general terms in legislation may well be
justified, and s. 7 does not prevent the legislature from placing
primary reliance on the mediating role of the judiciary to
determine whether those terms apply in particular fact
situations. I would stress, however, that the standard of legal
precision required by s. 7 will vary depending on the nature and
subject-matter of a particular legislative provision.


40 ????The appellant's position was that the by-law's prohibition of "excessive
growths of weeds and grass" was so open-ended that it failed to delineate with
sufficient precision the illegal conduct it sought to proscribe and that it
authorized a "standardless sweep" by enforcement officials. The uncertainty, it
was argued, came from two sources. First, in accordance with the evidence given
by Mr. Hodgins, it was submitted that the word "weed" had no clear meaning, that
it was a subjective and relative term without any scientific basis for
classifying plants. It was not suggested, however, that the word "grass",
despite its different varieties, posed the same definitional difficulties.
Second, it was submitted that the by-law provided no standard by which one could
assess whether growths of weeds and grass were "excessive", and that any test
for making such a determination that could be devised by the courts would
necessarily be subjective and arbitrary. For the same reason, it was submitted,
the enforcement of the by-law turned on subjective and arbitrary decisions by
building inspectors.

41 ????With respect to the first objection, I think that while the word "weed"
may have some botanical ambiguity, courts could sensibly categorize the finite
number of plant species according to recognized criteria. I appreciate that the
dictionary definitions of the word may not contribute much certainty; The Random
House Dictionary (1968), for example, defines "weed" simply as "a valueless,
troublesome or noxious plant growing wild, esp. one that grows profusely or on
cultivated ground to the exclusion or injury of the desired crop". At the same
tune, it is a word of common usage and there appears to be a consensus in the
community certainly with respect to its application to many plant species.
Evidence could be called, for example, as to whether a plant was harmful in the
sense of posing a health risk or excluding or damaging other desired plants.
Findings could presumably be made in accordance with such evidence. In addition,
it appears that the designation of particular plants as "noxious weeds" under
the Weed Control Act would assist in identifying at least some members of the
class. Although it might strain the language to refer to such a process of
labelling plants as weeds or not a "legal debate" applying "reasoned analysis",
it is nonetheless a procedure which courts could, I think, undertake if called
upon to do so.

42 ????Determining when the line is crossed between acceptable growths of weeds
and grass and those that are "excessive" strikes me as significantly more
problematic. Mr. Wall submitted that the phrase "excessive growth of grass and
weeds", when construed in the context of the whole by-law, is intelligible
language that can be interpreted by the courts. The word "excessive" should be
given its normal meaning, he argued, of "greater in amount or degree than is
usual or necessary or right", and he submitted that anyone applying common sense
would find Ms. Bell's garden unacceptable. Moreover, Mr. Wall asserted that a
by-law enforcement officer would be in a position to determine whether weeds and
plants were "excessive" and that courts, just as the justice of the peace did in
this case, could rely on the evidence of an officer's assessment.

43 ????I do not find the City's argument in this regard to be very persuasive. I
do not accept that "common sense" dictates when growths of weeds and grass
exceed what is "usual or necessary or right". Without a prescribed standard
against which to measure such matters, it would surely become a question simply
of personal taste or aesthetic preference. I have no difficulty thinking that in
1968 when the by-law was passed, at a time of greater conformity and
homogeneity, perhaps there would have been no confusion as to what the word
"excessive" conveyed in this context. In the more diverse, pluralistic and
accommodating society of the 1990's, however, I do not think that it is so
easily ascertained. Even if a preference for the typical suburban lawn remains
prevalent (and I am sure it does), I think we have all become accustomed to
accepting that not everyone shares the same tastes, and that differing practices
are no less valid or tolerable simply because they deviate from the norm. While
the by-law may have been passed for a legitimate purpose, it should be
remembered that Ms. Bell's garden was found to have "excessive growths of weeds
and grass" not because there was any evidence of any health concern, fire hazard
or other nuisance or harm caused by it, but simply because of its appearance.

44 ????Moreover, it seems to me that people's expectations or standards of
tolerance, to use the phrase normally applied to obscenity and indecency, can
change over time, and that when it comes to landscaping practices, they
obviously have. When one regularly encounters naturalized areas in High Park or
other public spaces, when one sees the City itself actively encouraging
vegetatIon not noticeably different from that found unacceptable in the
appellant's garden, one's sense of what is "usual or necessary or right" is
naturally affected. I accept Mr. Hodgins' evidence that there are now thousands
of private naturalized gardens in Toronto, and I think that an inevitable
consequence of routine exposure to them is that they no longer shock one's
sensibilities. One does not necessarily approve of them or hope for one next
door, but there is much in the urban environment that one accepts simply as part
of living in a largely ugly North American city. Torontonians necessarily
develop an aesthetic immunity to overhead wires, garish signs and billboards and
tacky buildings. As far as landscaping is concerned, I am sure that many people
find, for example, the long grass and weeds on the hillside abutting the
Gardiner Expressway far less offensive than the nearby commercial gardens with
plants carefully manicured into corporate logos. The point is not that attempts
by a municipality to lessen visual blight are invalid, but that in defining what
is impermissible, something more certain, precise or intelligible than the word
"excessive" is required.

45 ????It would appear that the City itself recognized the subjective and
discretionary nature of the phrase "excessive growths" in the old by-law when it
passed the new by-law imposing a 20-cm. height restriction. It seems to me that
regardless of whether one agrees with the evidence of Mr. Hodgins that the
specified height restriction is "bizarre, incomprehensible and arbitrary", it at
least provides certainty in enunciating the standard which property owners must
apply in assessing the "area of risk" and which inspectors must apply in
enforcing the by-law. On the other hand, since there appears to be no obvious
correlation between a height restriction for plants and any health, safety or
environmental hazards posed by them, I think the new by-law makes it even
clearer that the City's concern with weed control is primarily motivated by
aesthetic considerations.

46 ????Given that there is no generally-accepted standard that would compel a
finding that wild gardens involve "excessive" growths of weeds and grass, the
question still remains whether courts can reasonably interpret the word and
devise a test that achieves the legislative objective. In R. v. Butler, [1992] 1
S.C.R. 452, the Supreme Court managed to articulate a community standards test
for determining whether there was "undue" exploitation of sex by examining
whether the allegedly obscene item would be perceived by public opinion to be
harmful to society. I have no doubt that courts could similarly devise a test to
determine, for example, the meaning of "excessive noise" in the context of s. 75
of the Highway Traffic Act, R.S.O. 1990, c. H.8. There is a self-evident
standard, involving the normal sound of traffic or a running motor, against
which the allegedly offending "excessive" condition could be measured. I do not
think, however, that where grass and weeds are concerned, such an objective
standard could be defined. One could in theory inject a kind of "social harm"
test and require the prosecution to prove that the particular weeds or grass
constituted a health or safety hazard or caused an environmental nuisance. That
would ignore, however, the aesthetic consideration that I am satisfied was the
primary purpose the by-law was designed to achieve. Again, it was apparent in
this case that it was only the appearance of the appellant's yard that led the
inspector to lay the charge and the court to make the finding of guilt, both
done without any guidance provided by the by-law as to how visually unacceptable
yards were to be determined.

47 ????The word "excessive" in the impugned by-law is, in my opinion, completely
subjective and essentially arbitrary. Reliance on by-law enforcement officers to
interpret the word in a sensible way accepts precisely the sort of "standardless
sweep" and discretionary enforcement that are the hallmarks of vague and
uncertain legislation.

48 ????I conclude that s. 7(c) of By-law No. 73-68 is void for vagueness and is,
on that account, invalid and unenforceable.

Does s. 7(c) of By-Law 73-68 violate Charter rights?

49 ????As already stated, the appellant submitted that s. 7(c) of the by-law was
of no force or effect because it unjustifiably infringed her freedom of
expression under s. 2(b) and her freedom of conscience under s. 2(a) of the
Charter.

50 ????Recently, in Ross v. New Brunswick School District No. 15, [1996] 1
S.C.R. 825, La Forest J., for the Court, stated at p 864:

Section 2(b) must be given a broad, purposive interpretation: see
Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927.
The purpose of the guarantee is to permit free expression in
order to promote truth, political and social participation, and
sell-fulfilment;


...


Apart from those rare cases where expression is communicated in a
physically violent manner, this Court has held that so long as an
activity conveys or attempts to convey a meaning, it has
expressive content and prima facie falls within the scope of the
guarantee of freedom of expression; see Irwin Toy, supra, at p.
969. The Scope of constitutional protection of expression is,
therefore, very broad. It is not restricted to views shared or
accepted by the majority, nor to truthful opinIons. Rather,
freedom of expression serves to protect the right of the minority
to express its view, however unpopular such views may be...


...


In Irwin Toy, supra, and more recently in R. v. Keegstra, [1990]
3 S.C.R. 697, this Court has adopted a two-step inquiry to
determine whether an individual's freedom of expression is
infringed. The first step involves determining whether the
individual's activity falls within the freedom of expression
protected by the Charter. The second step is to determine whether
the purpose or effect of the impugned government action is to
restrict that freedom.


The "very broad" scope of constitutional protection referred to by La Forest J.
is demonstrated by the following passage from Dickson C.J.C.'s judgment in Irwin
Toy, supra at pp. 968-70:

"Expression" has both a content and a form, and the two can be
inextricably connected. Activity is expressive if it attempts to
convey meaning. That meaning is its content. Freedom of
expression was entrenched in our Constitution and is guaranteed
in the Quebec Charter so as to ensure that everyone can manifest
their thoughts, opinions, beliefs, indeed all expressions of the
heart and mind, however unpopular, distasteful or contrary to the
mainstream. Such protection is, in the words of both the Canadian
and Quebec Charters, "fundamental" because in a free, pluralistic
and democratic society we prize a diversity of ideas and opinions
for their inherent value both to the community and to the
individual.


...


We cannot, then, exclude human activity from the scope of
guaranteed free expression on the basis of the content or meaning
being conveyed. Indeed, if the activity conveys or attempts to
convey a meaning, it has expressive content and prima facie falls
within the scope of the guarantee. Of course, while most human
activity combines expressive and physical elements, some human
activity is purely physical and does not convey or attempt to
convey meaning. It might be difficult to characterize certain day
to day tasks, like parking a car, as having expressive content.
To bring such activity within the protected sphere, the plaintiff
would have to show that it was performed to convey a meaning. For
example, an unmarried person might, as part of a public protest,
park in a zone reserved for spouses of government employees in
order to express dissatisfaction or outrage at the chosen method
of allocating a limited resource. If the person could demonstrate
that his activity did in fact have expressive content, he would,
at this stage, be within the protected sphere and the s. 2(b)
challenge would proceed.


At pp. 976-77, the Chief Justice described the principles or values underlying
the protection of free expression in a society like ours as including the
following:



?????(3) the diversity in forms of individual self-fulfilment and
human flourishing ought to be cultivated in an essentially
tolerant, indeed welcoming, environment not only for the sake of
those who convey a meaning, but also for the sake of those to
whom it is conveyed. In showing that the effect of the
government's action was to restrict her free expression, a
plaintiff must demonstrate that her activity promotes at least
one of these principles ... But the plaintiff must at least
identify the meaning being conveyed and how it relates to the
pursuit of truth, participation in the community, or individual
self-fulfilment and human flourishing.

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