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51 ????In Ontario Adult Entertainment Bar Association v. Metropolitan Toronto (Municipality) (1995), 26 O.R. (3d) 257 at p. 277, the Divisional Court held that what was stated by the Supreme Court of Canada ii Edwards Books & Art Ltd. v. The Queen, [1986] 2 S.C.R. 713 at p. 759, in relation to freedom of religion, also applied to freedom of expression under s. 2(b): The purpose of s. 2(a) is to ensure that society does not interfere with profoundly personal beliefs that govern one's perception of oneself, humankind, nature [emphasis added], and, in some cases, a higher or different order of being. These beliefs, in turn, govern one's conduct and practices. The Constitution shelters individuals and groups only to the extent that religious beliefs or conduct might reasonably or actually be threatened. For a state-imposed cost or burden to be proscribed by s. 2(a), it must be capable of interfering with religious belief or practice. In short, legislative or administrative action which increases the cost of practising or otherwise manifesting religious beliefs is not prohibited if the burden is trivial or insubstantial: see, on this point, R. v. Jones, [1986] 2 S.C.R. 284, per Wilson J. at p. 314. While the Supreme Court considered that the Charter did not prohibit legislative action that had a "trivial or insubstantial" effect on a protected right, the Divisional Court quoted that passage and went on to hold that the form of expression for which protection was sought (in that case, exotic contact dancing) was itself too trivial and insubstantial to warrant constitutional protection. The Divisional Court stated at p. 278: We are of the opinion that the freedom of expression sought by the intervenors is trivial and insubstantial in relation to the "pursuit of truth, participation in the community and individual self-fulfilment and human flourishing". In the words of Dickson C.J.C., the prohibition cannot "lie at, or even near, the core of the guarantee of freedom of expression": see quotation from Reference re ss. 193 and 195.1(1)(c) of Criminal Code, [1990] 1 S.C.R. 1123, 56 C.C.C. (3d) 65 ... In our opinion, therefore, the constitutionally protected right of freedom of expression has not been breached, as close contact dancing is not a constitutionally protected right. 52 ????There can be no doubt that the appellant's act of growing a naturalistic garden that included tall grass and weeds had expressive content and conveyed meaning. As an environmentalist, Ms. Bell implemented a landscaping form intended to convey her sincerely held beliefs concerning the relationship between man and nature. It also implicitly conveyed a critique of the prevailing values reflected in conventional landscaping practices. She testified that she meant to show her son, and presumably the public at large, that one could co-exist with nature in a peaceful, nurturing way. In Ross v. School District No. 15, supra at p. 865, La Forest J. repeated that "the unpopularity of the views espoused" is not relevant to determining whether their expression falls within the guarantee of freedom of expression. The fact that many people evidently do not share the appellant's environmental beliefs and disapprove of the way she chose to manifest them does not remove her chosen form of expression from the protection of s. 2(b). 53 ????Similarly, in my opinion, the appellant's activity cannot be dismissed as too trivial or insubstantial to warrant constitutional protection. Assuming, as the Divisional Court did in the contact dancing case, that the importance of the expressive activity is relevant to determining whether it is entitled to Charter protection (as opposed to merely being a consideration relevant to the s. 1 analysis if an infringement is found), it can be observed that the Supreme Court of Canada has in the past found both the act of affixing an advertisement for a rock band to a utility pole (Ramsden v. Peterborough (City), supra) and tobacco advertising (RJR-MacDonald Inc. v. Canada (A.G.), supra) to be protected forms of expression. It seems to me that the appellant's expressing her environmental beliefs, conveying a statement about living in harmony with nature, and seeking self-fulfilment in her gardening practices come much closer to the "core values" underlying s. 2(b) than the forms of expression given protection in those cases. 54 ????Moving to the second step of the test, determining whether the purpose or effect of the by-law is to restrict a person's freedom of expression, I think it is apparent that one of the purposes of the by-law, indeed its primary purpose, is to impose on all property owners the conventional landscaping practices considered by most people to be desirable, and that one of its effects is to prevent naturalized gardens which reflect other, less conventional values. The by-law has a direct effect on the appellant's freedom of expression and, in my view, clearly violates s. 2(b) of the Charter. 55 ????Having found that the action falls within the ambit of s. 2(b) and that the effect of the by-law is to infringe that right, it becomes a question of applying the s. 1 justification analysis in accordance with the criteria outlined by the Supreme Court of Canada in R. v. Oakes [1986] 1 S.C.R. 103. In Ross, supra at pp. 871-872, La Forest J. stated: The factors to be considered in applying the Oaks test have frequently been reviewed, most recently in RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, where both the majority and minority agreed that an approach involving a "formalistic 'test' uniformly applicable in all circumstances," must be eschewed. Rather, the Oaks test should be applied flexibly, so as to achieve a proper balance between individual rights and community needs. In undertaking this task, courts must take into account both the nature of the infringed right and the specific values the state relies on to justify the infringement. At pp. 879-80, His Lordship summarized the analytical framework as follows: This Court in Oaks, supra, developed an approach under s. 1 that requires two things be established: the impugned state action must have an objective of pressing and substantial concern in a free and democratic society; and there must be proportionality between the objective and the impugned measure. ... The second part of the s. 1 analysis, the "proportionality test" involves three determinations: that the measure adopted is rationally connected to the objective (rational connection); that the measure impair as little as possible the right or freedom in question (minimal impairment); and that there be proportionality between the effects of the measure and the objective. 56 ????In my view, the objectives of the by-law can be identified, as they already have been, as the imposition of maintenance standards for residential premises which seek to minimize aesthetic blight and avoid health and fire hazards and an environmental nuisance. At least some of its objectives can be seen as sufficiently pressing and substantial to justify interference with Charter rights. Similarly, its prohibition of "excessive growths of weeds and grass" is rationally connected to these objectives, assuming for the moment that "excessive" could be defined simply to mean weeds and grass which tend to cause the mischief sought to be avoided. By prohibiting weeds and grass which are "excessive" and authorizing building inspectors to order their removal when they reach that stage, aesthetically offensive yards and the other potential hazards associated with them are certainly avoided. 57 ????The question then becomes whether the impugned section of the by-law restricts expression as little as is reasonably possible. It is apparent that the effect of s. 7(c) is to impose a total ban on wild or naturalized gardens in private residential yards. According to the evidence, most grasses and native plants, some of which could properly be characterized as weeds, grow to a state (and certainly to heights exceeding 20 cm.) that would be regarded as "excessive" under the by-law. In Ramsden v. Peterborough (City), supra at p. 248, Iacobucci J. observed as follows: While the negation of a right or freedom does not necessarily require that such an infringement not be upheld under s. 1, the distinction between a limit that permits no exercise of a guaranteed right or freedom in a limited area of its potential exercise and one that permits a qualified exercise of it may be relevant to the test of proportionality under s. 1 ([Ford v. Quebec (Attorney General) (1988), 54 D.L.R. (4th) 577] at p. 624). In Ford, the court held that a complete prohibition on the use of languages other than French on commercial signs could not meet the requirements of the proportionality test, particularly the rational connection and minimal impairment branches. In contrast, in Irwin Toy, supra, the court upheld substantial content-based restrictions (as opposed to a total ban) on advertising directed at children. It will therefore be more difficult to just a complete ban on a form of expression than time, place or manner restrictions. 58 ????The City, I think, could justifiably regulate domestic gardens by prohibiting noxious weeds or dry combustible grass or plants that cause a fire hazard. The application of the by-law is not so restricted, however, and it has been applied in a way that imposes aesthetic standards with which, according to the testimony of Mr. Hodgins, naturalized gardens could never comply. It might be suggested that a word as flexible, and indeed as meaningless, as "excessive" could be interpreted in a way that would exclude interference with persons using wild gardens to express their environmental beliefs. In my view, however, that would require an interpretation of the by-law that disregards its primary purpose, namely, prohibiting visually offensive yards which deviate from the landscaping norm and would, as a result, violate the most basic rule of legislative construction. 59 ????I do not think that it would be impossible for the City to devise a valid by-law which imposes standards of "repair" or maintenance of residential yards which avoid a Charter violation. Clearly, not every weed patch or derelict yard manifests an intention to express one's beliefs or convey meaning; most, I would think, reflect mere laziness and indifference. It would be open to the City to draft a by-law that imposes a duty on neglectful property owners concerning minimal maintenance standards while exempting from the operation of the by-law those unconventional gardens which express their owners' environmentalist values. It is obvious, however, that a by-law that has the effect of totally banning wild gardens does not impair as little as is reasonably possible the right to express the values and beliefs reflected in such gardens. 60 ????Moreover, to use the words of Iacobucci J. in Ramsden, supra at p. 249, "the benefits of the by-law are limited while the abrogation of the freedom is total; thus, proportionality between the effects and the objective has not been achieved". While at least some of the goals of the by-law are sufficiently important to justify overriding a constitutional right (although it should be noted that the right claimed by the appellant does not include the right to grow noxious weeds or plants likely to catch fire), the objective of creating neat, conventionally pleasant residential yards does not warrant a complete denial of the right to express a differing view of man's relationship with nature. As between a total restriction of naturalistic gardens and causing some offence to those people who consider them ugly or inconsiderate of others' sensibilities, some offence must be tolerated. In my view, the by-law cannot be justified under s. 1. 61 ????Having found that the by-law unjustifiably infringes the appellant's freedom of expression guaranteed by s. 2(b) of the Charter, pursuant to s. 52(1) of the Constitution Act, 1982, it is of no force or effect. In those circumstances, I do not think it is necessary to consider whether it also has the effect of breaching the appellant's freedom of conscience guaranteed by s. 2(a). Disposition 62 ????Section 7(c) of By-law No. 73-68 is found invalid, both because it is void for vagueness and uncertainty, and because it unjustifiably violates the freedom of expression guaranteed by s. 2(b) of the Charter. The appeal is accordingly allowed, the conviction set aside, and an acquittal entered. The fine which has been paid will be remitted to the appellant. In my view, the appellant is also entitled to her costs of the appeal, pursuant to s. 129 of the Provincial Offences Act. If counsel are unable to agree as to quantum of the costs to be paid by the respondent, the matter may be brought before me within 30 days of the release of these reasons. FAIRGRIEVE PROV. J. |
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