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Ramsden v. Peterborough (City) (Ont. Prov. Ct.) IN THE MATTER OF An Appeal under the Provisions of Part I of the Provincial Offences Act Between Kenneth Ramsden, Appellant, and The Corporation of The City of Peterborough, Respondent Ontario Provincial Court - Criminal Division Peterborough, Ontario Megginson Prov. Ct. J. Heard: January 10, 1989. Judgment: February 28, 1989. Simon Shields, Agent for the Appellant. Richard Taylor, for the Respondent. -------------------------------------------------------------------------------- 1 ????MEGGINSON PROV. CT. J.:-- This is an appeal, pursuant to the provisions of the Provincial Offences Act, from convictions rendered and fines imposed by His Worship, Justice of the Peace W.G. Jacklin, in proceedings under Part I of said Act (namely, a trial which concluded before him in the Provincial Offences Court of the County of Peterborough on September 8th, 1988). In those trial proceedings, the learned Justice of the Peace found the Defendant (the present Appellant) guilty of two separate infractions of By-law No. 3270 (as amended by By-law No. 1982-47) of the Corporation of the City of Peterborough, in respect of occurrence dates of March 28th, 1986, and May 11th, 1988, respectively, and imposed fines of $25.00 for the first infraction and $100.00 for the second infraction. The two infractions were charged by means of separate Certificates of Offence, but were apparently tried together in a single trial, pursuant to provisions of the Provincial Offences Act which permit such procedure. It appeal's that the actual trial was held on June 9th, 1988, and thereafter proceedings were adjourned to September 8th, when the learned Justice of the Peace rendered his decision. Upon the appeal, no issue was taken concerning any procedure in the Court below. The Appellant appeals to this Court against these two convictions, upon constitutional grounds and also against the greater fine imposed in the trial Court for the second offence. 2 ????I was furnished with a transcript of the reasons given by the learned Justice of the Peace on September 8th, 1988, for the two convictions and sentences, but I was not furnished with a transcript of the trial evidence. Instead, the parties agreed to proceed on the appeal by way of an "Agreed Statement of Facts", which is quite brief, and reads (in its entirety) as follows. 1.? On the 11th of May and again on the 28th of May, 1988, the defendant did affix upon public property (being a hydro pole) in the City of Peterborough, posters advertising upcoming musical performances of a band of which [he] is a member. These actions were in contravention of By-law No. 3270, as amended by No. 1062,47. of the City of Peterborough. 2.? It is the case that, (a)? posters when placed on wooden utility and hydro poles, constitute a safety hazard to workers climbing them with 'spike' attachments on their boots; (b)? posters if placed on the side of a pole which face [sic] the travelled portion of a roadway, constitute a traffic hazard due to the potentiality of drivers attempting to read them as they drive by; (c)? posters, when placed upon public property and left abandoned after their period of currency has expired, or for an unreasonable length of time, may (i) constitute a visual and aesthetic blight, (ii) if they become detached from the public property contribute to litter. 3.? It was the submission of the appellant at the trial that, for some community groups, businesses and individuals, postering is the least expensive and most accessible medium of communication available and that this is the case to such an extent that they might be denied a medium should postering not be available to them. With respect to the "offence dates" given in para. 1, above, I note (both from the Certificates of Offence and from the transcript of the learned Justice's reasons for decision at trial) that these are in error, and it should read (in this regard), "On the 28th of March and again on the 11th of May, 1988...". It was also conceded, with respect to the appeal against the second (higher) fine, that the Appellant knew he had been charged with the first infraction before the time when he committed the second infraction. 3 ????From the transcript with which I have been provided, there are also findings of fact, made by the learned Justice of the Peace at trial and based upon evidence which was adduced before him, which I cannot ignore upon appeal. In this regard, His Worship said: ?????"The evidence adduced by the prosecution has established that the objectives of the by-law are as follows, and I find that they are in the interests of aesthetic [sic], safety of workers, traffic safety, garbage collection.....I find, as a fact, that the by-law is neutral and silent on the issue of the contents of advertising. I'm satisfied that the evidence has established beyond [the] reasonable doubt that the Corporation of the City of Peterborough has sufficiently-substantial aesthetic, safety and economic interests at stake. It is the City's legitimate and compelling interest to control visual blight regardless of the poster's contents, protecting the safety of workers who must maintain utility poles and transmission lines, the elimination of traffic hazards, and the economic burden of garbage collection." Of course, whether the By-law "is neutral and silent on the issue of the contents of advertising" is a conclusion which this Court can draw for itself (upon consideration of the wording of the By-law), but the point is that the learned Justice of the Peace, at the trial, heard testimony from witnesses (eight of them, as I am informed by Respondent's counsel), and from his assessment of that testimony (not made available to me upon the appeal) drew certain conclusions as to the true concerns and objectives underlying the By-law. These conclusions, in my opinion, would not properly be disturbed upon appeal. I have before me no basis for disturbing them as "unreasonable", or "not supported by the evidence". 4 ????To complete the "factual underpinning" for the appeal against the convictions, By-law No. 3270 (as amended by By-law No. 1982-147) is before me (by way of duly-certified copies thereof), and (as amended) it reads (in its entirety) as follows: 1.? No bill, poster, sign or other advertisement of any nature whatsoever shall be placed on or caused to be placed on any public property or placed on or attached to or caused to be placed or attached to any tree situate on any public property within the limits of the City of Peterborough or any pole, post, stanchion or other object which is used for the purpose of carrying the transmission lines of any telephone, telegraph or electric power company situate on any public property within the limits of the City of Peterborough. 2.? Every person who contravenes this By-law is guilty of an offence and liable upon summary conviction to a penalty not to exceed Two Thousand Dollars ($2,000.00) exclusive of costs for each and every such offence. This By-law, in its original form, appears (by the certificate of the Municipal Clerk) to have been enacted by the Municipal Council an September 7th, 1937. The Amending By-law, enacted by Council on September 27th, 1982 (again, according to the Municipal Clerk's certificate), simply increased the provided maximum penalty very substantially (from $50 to $2,000), and extended the "prohibition" from the precincts of "any public street, highway or thoroughfare" within the limits of the City to "any public property" within the said City limits; the references to "any tree" and to "any pole, post, stanchion or other object...carrying...transmission lines" (within such precincts) remained unaltered. 5 ????In the present appeal against the convictions, it is conceded that Appellant's acts, on March 28th and again on May 11th, 1988, amounted to violations of this By-law (as amended) in its terms. Rather, the argument (as at trial) is that the By-law is unconstitutional, not in the sense of being ultra vires, but as being of no force and effect (by virtue of subsection 52(1) of the Constitution Act, 1982) for inconsistency with the "fundamental freedom" guaranteed by paragraph 2(b) of the Canadian Charter of Rights and Freedoms. In this regard, section 1 and paragraph 2(b) of the Charter provide as follows: 1.? The Canadian Charter of Rights 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. Everyone has the following fundamental freedoms: [inter alia] (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication [Emphasis added] 6 ????It seems to me obvious that By-law No. 3270 (as originally enacted in 1937) totally prohibited the posting of bills, etc., on public property comprising part of any highway, street or thoroughfare allowance in the City of Peterborough, and, in its amended form (effective September 27th, 1982) extended such prohibition to certain specified objects (including hydro poles) situate upon any public property within the said City. The By-law (originally and as enlarged in its reach by amendment) established no regulatory scheme (related to the form or substantive content of such posted "matter", but purported to impose, instead, a total prohibition upon such "posting", falling equally upon all would be "posters" of bills, advertisements, etc. Thus, the By-law (and its aforementioned Amending By-law) are not open to the allegation of "bad faith" raised (and given effect to primarily by the Court) in the case of Re Canadian Newspaper Co. Ltd. & Dir. of Public Road & Traffic Services of the City of Quebec et al. (1986), 36 D.L.R. (4th) 641 (Que. Sup. Ct.), cited by present Appellant both at trial and on appeal. That authority is considered subsequently in this Judgment. 7 ????Essentially, Appellant's argument herein (as at trial) is that para. 2(b) of the Charter affords an especial constitutional guarantee (a "fundamental freedom") against any Governmental legislative (or other) action actually or in realistic-potentiality interfering with the free exercise and use of "any medium of communication" - such that any enactment actually or potentially having such effect should be declared "unconstitutional" by a Court and being "of no force and effect" to the extent of any apparent inconsistency with the "fundamental freedom" declared by para. 2(b) of the Charter - and such that, if a Governmental enactment (or action) appears to a Court to have such effect, its "constitutionality" must be "saved" (if at all) by proof by the Governmental authority that it is such a "reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society", within s. 1 of the Charter. 8 ????I do not disagree with the Agent for Appellant as to such shifting of the burden of proof and persuasion to the prosecutorial authority, once the relevant legislation (under which defendant was charged) is demonstrated by defendant to be in conflict, prima facie, with a right or freedom guaranteed by the Charter; but I also agree with the submission of Respondent's Counsel to the effect that the proper approach of a Court to such question is as stated in Re Federal Republic of Germany & Rauca (1983), 4 C.C.C. (3d) 384 (Ont.C.A., at p. 400), as follows: "In our view, the issue has to be approached in two steps. First, it has to be determined whether the guaranteed fundamental right or freedom has been infringed, breached or denied. If the answer to that question is in the affirmative, then it must be determined whether the denial or limit is a reasonable one demonstrably justifiable in a free and democratic society." In this regard, it is noteworthy that the dicta of the Supreme Court of Canada in R. v. Oakes (1986), 24 C.C.C. (3d) 321 (upon which Appellant's Agent places much reliance in his filed factum) deal entirely with this secondary issue: whether legislation, demonstrated to be inconsistent (prima facie) with a right or freedom guaranteed by the Charter, is nevertheless saved from "unconstitutionality" (under s. 1) by proof (by the prosecution) that it is a reasonable limit prescribed by law [such] as can be demonstrably justified ill a free and democratic society". In other words, this "balancing of interests" and "proportionality" test does not arise at all for consideration by a Court, unless and until defendant demonstrates the relevant legislation (under which lie is charged) to abridge, infringe upon or deny some guaranteed Charter right or freedom. 9 ????In this case, in support of his contention that By-law No. 3270 (as amended) is prima facie in conflict with para. 2(b) of the Charter, Appellant's Agent (as best I can understand his argument) invites the Court to adopt a very expansive interpretation of para. 2(b) of the Charter (abovequoted), whereby "freedom...of media of communication" (i.e., as distinct from "freedom of thought, belief, opinion and expression, including freedom of the press", etc.) is elevated to a separate and distinct and especial constitutionallyprotected status of its own such that any enactment preventing or limiting the exercise of such freedom would be prima facie inconsistent with the Charter, and "saved" (if at all) under s. 1 thereof. He complains that the learned Justice of the Peace, in his reasons for decision at trial, "erred in law by ruling that the Charter guarantee of freedom of media of communication could be collapsed into and considered, for all present purposes, to be part of the Charter...guarantee of freedom of expression'" [see Notice of Appeal, para. 14(a)]. Appellant argues (essentially) that "postering upon public property" is an exercise of the constitutionally-protected "freedom of media of communication", such that any enactment purporting to prohibit same (such as the By-law in question) would be prima facie inconsistent with para. 2(b) of the Charter. I observe that, in order logically to support this argument, one must read "other media of communication", in para. 2(b), as if it were intended to mean "any facility (of any nature or kind) which is physically susceptible of conveying (by any means) some information of possible interest or relevance to the public or some segment thereof, or some such expression of thought, belief or opinion"; clearly, a hydro pole (or other object) situate upon public property, upon which a bill, notice, illustrative poster, commercial advertisement or sign could be affixed, would qualify under such a broad definition of "medium of communication", constitutionally-protected by para. 2(b) of the Charter. After all, in the case (cited by Appellant's Agent) of Irwin Toy Ltd. v. A.-G. Que. et al. (1986), 32 D.L.R. (4th) 641, the Quebec Court of Appeal held that the wording of para. 2(b) of the Charter does not limit "freedom of expression" to certain types of expression such as political, artistic and cultural expressions, but includes "commercial expression" in the form of a commercial advertisement (i.e., the type of "expression" involved in this appeal). 10 ????In the case now under appeal, the learned Justice of the Peace (at trial) ruled against such a broad interpretation of the words "other media of communication" in para. 2(b) of the Charter, and I am not persuaded (on appeal) that he erred in so ruling. 11 ????It becomes necessary (at least in "broad strokes") to attempt some delimitation of the ambit of the "fundamental freedom" guaranteed by para. 2(b) of the Charter, and (with trepidation) I would venture (in the absence of binding authority cited to me herein) to put the matter as follows:- 12 ????What para. 2(b) of the Charter is directed against, is Governmental legislation or action that imposes censorship upon the free expression of thought, belief or opinion sought to be expressed by a member (or members) of the public (and even if an "unpopular" minority thereof), via such traditionally-recognized or provided facilities (media) as speech (whether by address to assemblage in a public forum or inter-personam), the printed and published word (taking "publication" in its broadest sense, as including everything from the traditional "freedom of the press" [the so-called "fifth estate"] down to the lowly personal distribution of handbills), or "other media of communication" rendered available by developing technology (such as the radio/telecommunications facilities now available to the public, or future developments that might be inconceivable at present). In its wording (like all well-worded constitutional provisions), it embraces terminology sufficiently broad to speak to the future "media of communication" that may be developed or provided, as well as to those of the recognized and traditional present or past. It might well (as per the Irwin Toy Inc. case) include "freedom (via such media) of commercial expression" by way of advertisement, but the evil" constitutionally-protected against is censorship of content, substance or form of expression (by whatever medium). 13 ????Obviously, such "fundamental freedom of expression" is in keeping with our democratic heritage in Canada, essential to our cherished civil liberties, and well worthy of constitutional enshrinement for the future protection of our liberties. Yet, because such "freedom" must (by its elusive and ever-changing nature as to available media) be so broadly defined, some reasonable limitations of constitutionally-protected ambit must apply, in the overall public interest: legislative constraints upon "pornography", "hate literature", etc., are argued to be such; and if they are to be constitutionally-justified, they must meet the test of s. 1 of the Charter. 14 ????Nevertheless, even assuming that "commercial expression" is included, I find myself unable to accept that the "fundamental freedom of expression" guaranteed by para. 2(b) of the Charter carries with it a correlative obligation on the part of an owner of property (even if that owner be the public through Government) to afford "cost-free advertising" to a "commercial interest" (as Appellant must be viewed) by permitting such person to post advertising material upon portions of that property as a "medium of communication", simply because objects on that property are physically susceptible of having such material displayed thereon or affixed thereto. There is no evidence before the Court (nor, I gather, was there any such accepted by or even adduced before the trial Court), that affixing posters to hydro poles on public property is a traditional or provided "medium of communication", commercial or otherwise. In fact, on the evidence, such "mode of commercial (or other) expression" has expressly been prohibited by law, in the City of Peterborough (at least), for over 50 years. Advertising is a cost of carrying on a venture of a commercial nature, and, in our "free and democratic society", must be borne by the "businessman", utilising the facilities generally made available in our society for that purpose. Would a publiclyowned radio/telecommunications facility be constitutionallyrequired to "broadcast" notices of a commercial nature, free of cost to the advertiser (and eventual profiteer), simply because the "medium" is susceptible of such form of "expression"? 15 ????The City Solicitor (Counsel for the Respondent) points out, and the Court agrees, that By-law No. 3270 (as amended) in no manner whatsoever purports to deal with: (1)? What can be advertised - its content; (2)? How it is to be disseminated throughout the community - except that it cannot be placed or affixed to public property; (3)? When such advertising can take place; (4)? Whether such advertising is appropriate or in the public interest; (5)? The language, graphic, content, symbolism, colour, size, etc. of advertising; (6)? It [simply] limits where such bills, posters can be placed by excluding them from public property. In its "pith and substance", therefore, the By-law purports to deal not at all with censorship of expression ("commercial" or otherwise), but merely imposes a total prohibition upon the use of property for certain purposes, in the perceived public interests of safety, avoidance of "visual blight", and economy of "housekeeping costs" (such as removal and garbage collection). In this (for the reasons given) the Court finds no inconsistency as between the provisions of the By-law, and the "fundamental freedom of expression" guaranteed by para. 2(b) of the Canadian Charter of rights and freedoms. In this Court's opinion, the learned Justice of the Peace (at trial) did not err in such regard. Further, since no such conflict is seen to exist, no question arises whether the By-law, although in conflict with para. 2(b) of the Charter, is nevertheless "saved" from unconstitutionality by s. 1. 16 ????Before finally disposing of the appeal against the two convictions. I shall proceed to deal (as I feel myself obligated) with the four case-authorities cited. The learned Justice of the Peace was correct in thinking that none of them was directly binding upon him within the factual context of the case at bar, but they are all of high persuasive authority (with respect to the legal principles for which they properly stand), and were well-deserving of the thoughtful consideration which His Worship gave them. This Court feels itself obligated to do the same. 17 ????The first authority cited by Appellant is Committee For the Commonwealth of Canada et al. v. The Queen In Right of Canada (1986), 25 D.L.R. (4th) 460 (Fed. Ct., T.D.), in which Dube J. was petitioned to declare (and, in the result, did so) that the areas open to the public at Montreal International Airport (Dorval) constitute a public forum where fundamental freedoms can be exercised. The activity in question was "pamphleteering", that is, circulation of persons in and about the open area on the first floor of the passenger terminal (the often-busy concourse open to the public for purchasing tickets and awaiting flight departures), carrying placards and pamphlets expounding a "socio-political philosophy", and encountering individual members of the public there present to discuss the aims and objectives of the "group". The Airport Authority took the position that such activity was forbidden by s. 6 of the Government Airport Concession Operations Regulations, C.R.C. 1978, c. 1565, which purported to prohibit anyone, without written authorization from the Minister of Transport, from "advertis[ing] or solicit[ing] anything at an airport on his own behalf or on behalf of ally other person". In holding (in effect) that this Regulation, when applied to the activity in question, infringed or denied the "fundamental freedom of expression" guaranteed by para. 2(b) of the Charter, and was not demonstrated to be saved by s. 1, Dube J. said (at p. 466 D.L.R.): ?????"It seems plain and obvious to me that the public terminal concourses in our Canadian airports, as well as in American airports, have become contemporary extensions of the streets and public places of yesterday. They are indeed 'modern crossroads' for the intercourse of the travelling public. In principle, freedom of expression and communication ought not to be abridged in those public forums. The absolute prohibition imposed by the Dorval authorities upon the rather benign and innocuous activities of the plaintiffs flies in the face of the Canadian Charter of Rights and Freedoms. ?????"Of course, freedom of expression in a public forum is not unlimited. It may be circumscribed within reasonable limits for the general comfort and convenience of the travelling public. The proper authorities may draw regulations so as to safeguard the well-being and security of the passengers as well as the efficiency of the transportation functions of an airport. But the airport authorities may not impose a categorical interdiction so as to smother the fundamental freedom of persons to peacefully disseminate their political, religious, or other beliefs in a public place." Although Dube J. did not render it explicit, I note that he appears to have been following (in effect) the "two-step" approach advocated by the Ontario Court of Appeal in Rauca (supra). In the first paragraph of the above quotation, His Lordship was addressing the primary question whether Plaintiffs' asserted activities came within the ambit of the "fundamental freedom of thought, belief, opinion and expression" constitutionally guaranteed by para. 2(b) of the Charter; His Lordship concluded that they did. In the second paragraph quoted, he turned to consider the secondary question whether the abrogation of such "freedom" (in question in the case at bar) was nevertheless "saved from unconstitutionality" by s. 1 of the Charter; His lordship concluded that it was not. 18 ????I would find this case apposite, and highly persuasive if, present Appellant's favour, if I thought it were possible and logically appropriate to equate the types of "expressive" activity in question in the two cases: i.e.- if Appellant herein were (e.g.) asserting a "freedom" to wander at" out the public thoroughfares, parks and concourses of the City of Peterborough, possibly even carrying a placard and wearing an "expressive sandwich-board", perhaps even singing his songs or playing his musical instrument, and expressing himself orally and/or disseminating advertising handbills to persons encountered. If, in his mariner of doing so, he thereby created no "public nuisance" or "breach of the peace", I can think of no provision of the criminal law of which he would thereby run afoul, and he could fairly be considered to be exercising a traditional and constitutionally-protected "freedom of expression", akin to the activities of the minstrels of yesteryear. Of course, in the labyrinth of modern-day regulative law, there could exist some by-law purporting to forbid such activity (and such by-law might or might not be held "unconstitutional"), but that is not the question before the Court in this appeal. By-law No. 3270 (as amended) does not (upon any reasonable construction) forbid such mode of "expression". However, that is a very different kind of "expressive" activity from the posting of printed "commercial" advertising notices upon objects on public property, and, in my opinion, the "Dorval Airport" case is clearly distinguishable from the case now under appeal, as to the nature of the type of "expressive" activity under consideration. The learned Justice of the Peace was, in this Court's opinion, quite correct in deciding not to apply that case-authority herein. 19 ????The second case-authority cited by Appellant's Agent was Re Canadian Newspaper Co. Ltd. & Dir. of Public Road and Traffic Services of the City of Quebec, et al. (1986), 36 D.L.R. (4th) 641 (Que. Sup. Ct.). Brief reference has previously been made here in to this authority. Petitioner for mandamus was publisher of a "national" newspaper (the Globe and Mail), seeking to distribute said newspaper in the City of Quebec by means of newspaper vending-boxes to be situate on City sidewalks. The Municipal Council had in place a by-law regulating the placement of newspaper vending-boxes on public property at the time when Petitioner made application under it (in prescribed manner) for placement of its boxes. The application apparently (and for whatever reason) met with considerable resistence on the part of the Municipal officials, and, during protracted negotiations, the Municipal Council enacted a new by-law, purporting to totally forbid the placement of newspaper vending-boxes upon public property in the City. In the case before him, Bernier J held that the "new" By-law had been enacted in "bad faith", and was therefore "inoperative", and that Petitioner's rights were to be determined by the provisions of the original By-law. Nevertheless, in granting mandamus for the issuance of the "permits" applied for, His Lordship went on (secondarily) to consider whether the new By-law was also "unconstitutional", as denying "freedom of the press" guaranteed by para. 2(b) of the Charter". In this regard, His Lordship said (in part, at pp. 656--662 D.L.R.): ?????"The fundamental issue in this case is whether the right to install newspaper' vending machines constitutes a right protected by the freedom of the press or expression. "Both parties agree that the term 'freedom of expression'...include[s] the 'freedom of the press'... .. The words 'freedom of expression' must be understood in a wide sense so that they encompass 'expression' in its widest context arid hence also include 'freedom of the press' which is but one form of 'expression'. "Moreover, 'freedom of the press,' is only one facet of the 'freedom of expression'...... I interject to note that His lordship' s comments, above, stand strongly against one ground of Appellant's appeal from the convictions here in, whereby he complains that the learned Justice of the Peace at trial collapsed "freedom of...other media of communication" (within para. 2(b) of the Charter) into the broader concept of "freedom of expression" (therein). Under the wording of para. 2(b), "freedom of... other media of communication" appears to stand upon (at its arguable highest) equivalent footing with "freedom of the press", as "includ[ed]" within the comprehensive concept of "freedom of thought, belief, opinion and expression". His Lordship continued: ?????"One should not limit this 'freedom of expression' exclusively to that of the people, as counsel for respondents suggests in her written submissions.... "Moreover, this 'freedom of expression', of which 'freedom of the press' is but one facet, was already guaranteed in the Canadian Constitution before the coming into force of the Charter..... "Now it has already been decided that 'freedom of the press' extends not only to the publication but also to the distribution of newspapers.... "Moreover, it was also decided that newspaper vending machines on public ways should also benefit from the constitutional protection of 'freedom of the press' and 'expression'..... "...the City of Quebec...prohibited all newspaper vending boxes. "Moreover, it appears from the evidence...that the City of Quebec simply did not want vending boxes, which explains its refusal and, following the institution of proceedings by the Petitioner, the adoption of the said by-law. Petitioner offered its full operation to the City of Quebec with respect to where to place its vending boxes and even went so far as to offer to paint the boxes in a colour of the City's choice, and build them in a way so as to reach the ground in order that rubbish or dirt would not collect underneath, and even place them on a pedestal or base.... "The Court cannot conceive of why Petitioner and consequently the citizens of the City of Quebec, in a 'free and democratic society' as stipulated in s. 1 of the [Charter], cannot enjoy not only what exists in the United States but also what prevails in other Canadian cities, some of which are comparable, such as, amongst others, North Vancouver and Saint John's, Newfoundland. "The onus was on Respondents to demonstrate that the restriction imposed by this by-law can be 'justified in a free and democratic society'..... "Now, with respect to the case at bar, the respondent...did not restrict in a reasonable manner but simply eliminated petitioner's right to distribute newspapers by means of newspaper vending boxes installed at the requested locations. and thus did not meet the burden of proof which rested on it to justify the by-law, not to mention the bad faith it demonstrated in adopting the by-law, as previously examined. "Therefore, the court concludes that this other recourse [i.e. - mandamus to require the permits applied for under the original By-law to be issued by the Municipality] must also be granted." As I interpret it, this case stands for the following propositions (in factual context relative to the case under appeal herein): (1)? "Freedom of the press" (in para. 2(b) of the Charter) is one medium (among others) by which, in our heritage, effect is given to the "fundamental freedom of thought, belief, opinion and expression" guaranteed thereby; (2)? "Freedom of the press" was, by the framers of the Charter, thought particularly worthy of express, inclusive mention (in connection with the guaranteed freedom of "thought, belief, opinion and expression"), because it is a traditionally established and almost self-evidently important (and, indeed, essential) element of such basic freedom, in our Anglo-Canadian heritage; but it is to be appreciated in context as part (albeit an especially-important part) of the more comprehensive and inclusive "freedom of expression"; (3)? In this context, "freedom of the press" includes not only publication, but also the means of distribution, of newspapers; (4)? Public-sidewalk vending-boxes are a general and traditional means of distributing newspapers in (at least) urban areas in our society, and therefore any law purporting to restrict or prohibit such distribution would, in order not to conflict with para. 2(b) of the Charter, have to be demonstrated by the appropriate Governmental authority to be "saved" by s. 1 thereof; (5)? A complete prohibition upon such means of newspaper distribution could not be "saved from unconstitutionality" by s. 1 of the Charter, given the crucial importance (to our inherited Anglo-Canadian system of a "free and democratic society") of the existence of a "free press" (or more recent technological developments thereof, to wit, the "electronic" news/opinion media), and the means of public distribution thereof). As much as I might be inclined to agree with Bernier J, in his conclusions, I think that this case, as well, is distinguishable from the case at bar. In my opinion, guaranteeing the freedom of expression of information, opinions and beliefs (popular or unpopular) which, in our Anglo-Canadian tradition, has been the free prerogative of the news media (whether "press" or, more recently, "electronic"), or even assuring accessibility to means of public dissemination of "minority" views so "embryonic" or unpopular that they cannot "grab" news media attention, is a very different type of "expression" (qualitatively speaking, and from the viewpoint of society's larger interests) from a desire (in context of our relatively "free enterprise" society) of a private entrepreneur to gain the advantage of a "cost-free" medium of commercial advertising" by having the "freedom" to affix printed "commercial advertising material" to objects situate upon public property, and which may be physically-susceptible of such affixation. To compare the two "assertions of right", in my respectful opinion, as coming within the ambit of the constitutionally-guaranteed "fundamental freedom of thought, belief, opinion and expression", is to compare "apples" with "orange-seeds", in terms of the relative importance of the two "assertions of freedom" to the concepts Canadians hold dear (in our tradition) to the continued existence of a "free and democratic society", and which were thus enshrined in our Constitution of 1982. "Democracy" may or may not be an absolute, but "personal freedom" must (by its nature) be a relative concept, in any society. Interpersonal relations in society are such that each individual person's "freedoms" must be delimited to avoid unwarranted infringement upon his neighbour's "freedoms"; if, many cases (involving "public law"), individual "freedoms" must be rendered subservient to the "public good as a whole" (as perceived by our democratically-elected legislative bodies). That is the nature of our "free and democratic society", and the overall result of it is that "fundamental freedoms" must (if defined in general terms in a written Constitution, is since 1982 in Canada, and since much earlier in the U.S.A.) be defined by the Courts, in the context of individual disputes arising, as to the precise delimitation of such "freedoms". The judgment of this Court (for reasons previously given, within context of the dispute at hand), is that the "freedom of the press and other media of communication" guaranteed by para. 2(b) of the Charter (including the means of distribution of newspapers via vending-boxes situate on public property) is qualitativelydistinguishable (in terms of constitutionally-protected "freedoms" crucial to the continued existence of our "free and democratic society", from an asserted "freedom" of a private entrepreneur to secure "cost-free advertising" (to his economic advantage) by affixing his "commercial notices" to objects on public property, which latter-mentioned mode of "expression" is not within the ambit of such constitutionalprotection of "fundamental freedoms". The former-mentioned "freedom" is one central to, and traditionally-recognized in, our "free and democratic society"; the latter-mentioned is not. In my judgment, again, the case-authority cited by Appellant is distinguishable from the case at bar. 20 ????The third and final case-authority cited by Appellant was Irwin Toy Ltd. v. A.-G. (Que.), Moreau & A.G. (Can.) (1986), 32 D.L.R. (4th) 641 (Que. C.A.). That case has previously been mentioned, as well, in connection with the issue whether "freedom of expression" [in para. 2(b) of the Charter] includes "commercial expression" (i.e., advertising), and upon that aspect of the matter, I understand that the decision cited is still the subject of leave to appeal, granted by the Supreme Court of Canada. Even begging that question, I think the decision of the Quebec Court of Appeal is distinguishable from the case at bar, and thus not eventually helpful to Appellant's position. In that case, provisions of the provincial Consumer Protection Act purported to prohibit commercial advertising directed at persons under 13 years of age. Appellant had been charged with contravention of that provision, and argued that the statutory provisions (under which it had been charged) were "of no force and effect" as conflicting with the "fundamental freedom of expression" guaranteed by para. 2(b) of the Charter. The Quebec Court of Appeal upheld Appellant's position. However, it is noteworthy (in my opinion) that this case involved a true issue of censorship (the "evil" against which I think para. 2(b) of the Charter is essentially directed, as I have previously sought to express). The legislation in question did not purport to deny civilian access to all reasonablyavailable media of "commercial expression"; it merely dealt with the content of "commercial advertising" (published or otherwise promulgated by media within the Province) - i.e., such "content" could not be directed (as its substantive objective) to children (persons under 13 years of age). I tender no opinion whether the judgment of the majority of the Quebec Court of Appeal was right or wrong (since it is under further appeal to the Supreme Court of Canada), but note that the majority ruled that such a censorship enactment (relating to content of "commercial expression") prima facie was in conflict with para. 2(b) of the Charter, and would have to be saved from unconstitutionality" (if at all) by an application of s. 1; the Quebec Court of Appeal ruled that the particular enactment was not so "saved". From my views previously expressed herein, I think that the distinction of this cited case-authority, from the case at bar, must be obvious. The case cited deals with censorship of the content of "information" permitted to be disseminated; the case at bar deals (as argued by Appellant) with denial of access to an available medium of "expression". 21 ????The fourth and final case-authority cited was City Council of Los Angeles et al. v. Taxpayers for Vincent et al. (1984) 466 U.S. 789 (Sup. Ct. of U.S.A.). The learned Justice of the Peace (at trial) considered it and found it not binding but highly persuasive and directly on point (in the absence of binding or more persuasive Canadian authority), and so does this Court so consider it. Due allowance must be made for the factor that the "freedom of speech" expressly and originally guaranteed by the First Amendment to the Constitution of the United States of America may (in terms) be narrower than the "freedom of thought, belief, opinion and expression" guaranteed by para. 2(b) of our Charter; but, the U.S. Constitution being a "living document" (like our much more recent Charter), a consideration of the American jurisprudence seems to make clear that the American Courts have interpreted "speech" in historically involving context (since the 18th Century), so that speech" is now considered to embrace all manner and modern and technologically-emerging modes of "communication" by which ideas, ideologies, opinions, etc. may be expounded or promulgated; thus (in my opinion), recent cases under the American First Amendment may (in the absence of binding Canadian authority) fairly be considered in pari materia (and persuasive) in relation to para. 2(b) of our Charter. 22 ????I have read the Judgment in its entirety, but find the majority opinion (6:3, delivered by Stevens J.) to be adequately summarized by the headnote (which I quote, for brevity, in relevant parts): ?????"[The Municipal Ordinance] prohibits the posting of signs on public property. Appellee.... a group of supporters of a candidate for election.... entered into a contract with (another Appellee] to fabricate and post signs with the candidate's name on them. [The latter-mentioned Appellee] produced cardboard signs and attached them to utility pole crosswires [in the City of Los Angeles] at various locations. Acting under [the Municipal Ordinance], City employees routinely removed all posters (including [these] signs) attached to utility poles and similar objects covered by the Ordinance. Appellees then filed suit...against appellants, the City and various City officials, alleging that [the municipal Ordinance] abridged Appellees' 'freedom of speech' within the meaning of the First Amendment.... "Held (6:3]:... "[The Municipal Ordinance] is not unconstitutional as applied to Appellees' expressive activity. (a) The general principle that the First Amendment forbids the Government to regulate speech in ways that favor some viewpoints or ideas at the expense of others is not applicable here. [The Municipal Ordinance's] text is neutral - indeed it is silent - concerning any speaker's point of view, and the District Court's findings indicate that it has been applied to Appellees and others in an evenhanded manner. It is within the City's constitutional power to attempt to approve its appearance, and this interest is basically unrelated to the suppression of ideas - c.f.- U.S. v. O'Brien, 391 U.S. 367, 377... (b) Municipalities have a weighty, essentially esthetic interest in proscribing intrusive and unpleasant formats for express ion. The problem addressed by [the Municipal Ordinance] - the visual assault on the citizens of Los Angeles presented by an accumulation of signs posted on public property - constitutes a significant substantive evil within the City's power to prohibit. Metromedia, Inc. v. San Diego, 453 U.S. 490...; (c) [The Municipal Ordinance] curtails no more free speech than is necessary to accomplish its purpose of eliminating visual clutter. By banning posted signs the City did no more than eliminate the exact source of the evil it sought to remedy. The rationale of Schneider v. State, 308 U.S. 147 [c.f.- the Canadian "Dorval Airport" case, supra], which held that ordinances that absolutely prohibited 'handbilling' on public streets and sidewalks were invalid, is inapposite in the context of the instant case...; (d) The validity of the City's esthetic interest in the elimination of signs on public property is not compromised by failing to extend the ban to private property. The private citizen's interest in controlling the use of his own property justifies the disparate treatment, and there is no predicate in the District Court's findings for the conclusion that the prohibition against the posting of Appellees' signs fails to advance the City's esthetic interest...; (e) While a restriction on expressive activity may be invalid if the remaining modes of communication are inadequate, [the Municipal Ordinance] does not affect any individual's freedom to exercise the right to speak and to distribute literature in the same place where the posting of signs on public property is prohibited. The District Court's findings indicate that there are ample alternative modes of communication in Los Angeles...; (f) There is no merit in Appellees' suggestion that the property covered by [the Municipal Ordinance] either is itself a 'public forum' subject to First Amendment protection, or at least should be treated in the same respect as the 'public forum' in which the property is located. The mere fact that Government property can be used as a vehicle for communication - such as the use of lampposts as signposts -- does not mean that the Constitution requires such use to be permitted. Public property which is not by tradition or designation a forum for public communication may be reserved by the Government for its intended purposes, communicative or otherwise, if the regulation on speech (as here) is reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view...; (g) Although plausible policy arguments might well be made in support of Appellees' suggestion that the City could have written an Ordinance that would have had a less severe effect on expressive activity like theirs - such a by providing an exception for political campaign signs - it does not follow that such an exception is constitutionally mandated, nor is it clear that some of the suggested exceptions would even be constitutionally permissible. To create an exception for Appellees' political speech and not other types of protected speech might create a risk of engaging in constitutionally forbidden content discrimination [c.f. - our Canadian Charter, s. 15]. The City may properly decide that the esthetic interest in "voiding visual clutter justifies a removal of all signs creating or increasing that clutter..." In my respect opinion, given the substantive near-equivalency between the First Amendment to the Constitution of the United States of America (as jurisprudentially-evolved and para. 2(b) of our Charter, and given the factual parallel as between the City of Los Angeles case and the case at bar, and in the absence of binding Canadian authority to the contrary, I find no reason to disagree with any of the dicta expressed by the Supreme Court of the U.S.A. in that case. In the case under appeal at present, the learned Justice of the Peace found that case-authority most apposite and persuasive, and followed it, and I agree with him in that regard. In point of fact, the City of Los Angeles case was an even stronger one than the case as bar in terms o the argued assertion of a "fundamental freedom of expression" (vis-a-vis) its constitutional "guarantee"), for it involved assertion of a right to express political opinion (self-evidently basic to a "free and democratic society"), rather than a mere "commercial expression" of self-serving economic interest to the expressor. 23 ????For the reasons I have sought to express, the Court finds that the learned Justice of the Peace at trial did not err in holding that By-law No. 3270 of the Corporation of the City of Peterborough (as amended by By-law No. 1982-147) is not "of no force and effect", being in conflict with the "fundamental freedom of thought, belief, opinion and expression" guaranteed by para. 2(b) of the Canadian Charter of Rights and Freedoms; and that, upon the facts found at trial, His Worship properly convicted Appellant upon each of the two counts. 24 ????Therefore, the appeal against conviction upon the two counts is dismissed, and the convictions are affirmed. 25 ????With respect to the appeal against sentence (limited to the higher fine [$100.00] imposed by the learned Justice of the Peace with respect to the second occurrence - the infraction of May 11th, 1988), I indicated orally upon the hearing of the appeal that I found no merit in this aspect of it, and would give further reasons eventually. With respect to the first "infraction" (that of March 28th, 1988), the learned Justice of the Peace imposed a fine of $25.00 (1/80 of the maximum penalty permitted under the By-law, and properly to be viewed as a merely "nominal" penalty for an infraction, in recognition of the factor that Appellant was then asserting a self-perceived [and arguable] "constitutional freedom" in defence), but, then, knowing he was charged with respect to that occurrence (and would have his "day in Court" to assert his self-perceived "constitutional freedom" in defence), Appellant chose to "flaunt" the By-law again, during the pendancy of Court proceedings apt to test its constitutional validity. In such circumstances, I find no "error in principle" in the Justice of the Peace's having levied an increased fine for the second occurrence, in the interests of specific and general deterrence, and the amount so levied was well within the range available to him, and relatively modest with respect to the maximum fine provided (1/20). Citizens have a perfect right to challenge the "constitutionality" of prima facie duly-enacted and valid legislation purporting to prohibit activities in which they might wish to engage, but once charged thereunder (and "the [constitutional-test] game afoot", as it were), they should await the Court's adjudication upon their asserted "constitutional rights" or expect an increased penalty (fairly, and within the permitted range) if they persist in the conduct to the point of a further infraction, and are not eventually vindicated by the "due process of law" with respect to the "freedom" asserted. 26 ????Therefore, this Court dismisses, as well, the appeal against sentence herein, and affirms the fine of $100.00 imposed by the learned Justice of the Peace at trial with respect to the second offence of May 11th, 1988. 27 ????In the result, the appeal against the two convictions, and the appeal against sentence, are both dismissed. MEGGINSON PROV. CT. J. |
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