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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.

CC0

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