Municipal Powers over Activities on Sidewalks and in Public Places

Presented at the 2nd Advanced Creating and Enforcing Muncipal By-laws Course | APRIL 12, 2011

Introduction

The Legislature of the Province of Ontario has now conferred upon municipalities expanded and comprehensive powers of legislative self-government. One cannot imagine a much wider power than the power to pass by-laws respecting the economic, social and environmental well-being of the municipality, and the health, safety and well-being of persons.1

As between upper and lower-tier municipalities, the Act allocates legislative powers on the basis of "spheres of jurisdiction", but even those are expressed in permissive and broad terms, relating mainly to the governance of municipal property and the provision of services, with respect to which municipalities also have "natural person powers", but also providing legislative powers to address the use of, for instance, "highways" including parking and traffic on highways, public utilities and parks.2

These broad powers are further supplemented by specific provisions of the Act, such as those contained in Part III, sub-part 1, Highways (including jurisdiction over municipal sidewalks and the prohibition and regulation of signs on highways); sub-part 5, Culture, Parks, Recreation and Heritage; sub-part 7, Structures (including fences and signs), in respect of which all by-laws are, of course, subject to the provisions of the Canadian Charter of Rights and Freedoms, including freedom of expression, and sub-part 11, Health, Safety and Nuisance. In respect of the latter area of jurisdiction, section 128(1) of the Act specifically authorizes local municipal councils to pass by-laws to "prohibit and regulate with respect to public nuisances, including matters that, in the opinion of Council, are or could become or cause public nuisances".

This paper will address some issues involving municipal jurisdiction over certain types of activities engaged in by individuals on municipal sidewalks, and in other public places under municipal authority or ownership, namely: begging, squeegeeing, religious proselytizing, and soliciting for prostitution.

It is intended to discuss these issues not so much in terms of types of municipal by-laws which have been enacted to address these activities, but in the context of recent court decisions addressing issues and principles arising from specific attempts by municipal councils to protect the public interest in maintaining the freedom of individuals to walk and drive in public places without being subjected to what may be considered the nuisance of being interfered with through the acts of other individuals pursuing their own interests.

Panhandling

A very useful history of legislation at various levels addressing issues of "panhandling" is contained in the decision of the British Columbia Supreme Court in Federated Anti-Poverty Groups of B.C. v. Vancouver (City) (2002), 28 MPLR (3d) 165.

That case concerned the constitutional validity of City of Vancouver By-law No. 8309, which contains the following provisions:

LOITERING

70. No person shall stand or loiter on any street in such a manner as to obstruct or impede or interfere with traffic thereon.

OBSTRUCTIVE SOLICITATION

70. A (1) For the purpose of this section 70A,

"cause and obstruction" means

(a) to sit or lie on a street in a manner which obstructs or impedes the convenient passage of any pedestrian traffic in the street, in the course of solicitation,

(b) to continue to solicit from or otherwise harass a pedestrian after that person has made a negative initial response to the solicitation or has otherwise indicated a refusal,

(c) to physically approach and solicit from a pedestrian as a member of a group of three or more persons,

(d) to solicit on a street within ten metres of:

     (i) an entrance to a bank, credit union or trust company, or

     (ii) an automated teller machine, or

(e) to solicit from an occupant of a motor vehicle in a manner which obstructs or impedes the convenient passage of any vehicular traffic in the street.

"solicit" means to, without consideration, ask for money, donations, goods or other things of value whether by spoken, written or printed word or bodily gesture, for one's self or for any other person, and solicitation has a corresponding meaning, but does not include soliciting for charity by the holder of a licence for soliciting for charity under the provisions of the licence by-law;

(2) No person shall solicit in a manner which causes an obstruction.

The Court commenced by reviewing the tensions which had developed in the City of Vancouver as a consequence of acts of panhandling, and referred to affidavit evidence suggesting that certain acts of panhandling were perceived as intimidating, and describing as well "a plethora of aggressive, obnoxious and intimidating conduct of some panhandlers and their effect on businesses, customers and members of the public, including tourists and Vancouver residents". The Court also noted that "not all panhandlers behave in an offensive manner. The material provided by counsel shows that the vast majority of those who panhandle do so in a passive manner".

Police evidence submitted in the case categorized panhandlers into a number of defined groups:

1.  Street Kid Wannabees
2.  Real Street Youth
3.  Transients
4.  Substance Abusers
5.  Welfare Refusals
6.  Frauds
7.  Mentally Ill
8.  Outstanding Warrants

The petitioners challenging the validity of the by-law submitted the affidavit of a university professor, stating his opinion that panhandling goes beyond a mere commercial transaction where the panhandler seeks the means to deal with his or her poverty. He stated that it is a form of speech by which the panhandler seeks to express him or herself in terms of his or her position in life and is a broader expression of a need for help. He was quoted as seeing, "a value in permitting panhandling in public spaces because this message is seen and heard by the public and it ensures a ‘social diversity that is a pre-requisite for public life'. Thus, panhandlers need to be able to publicly broadcast their message in public places, which are the only effective venues where the poor can effectively deliver their message given their lack of resources."

The Court then addressed the issue of the authority of the City to enact the by-law. The Court noted that while the term "panhandle" is not included in the current by-law, although it had been in the one which it replaced, the definition of "solicit" embodied a similar definition as "panhandle", found in the previous by-law. The Court concluded that the activity being regulated, like the multitude of other non-pedestrian street activities, "falls squarely under the express authority granted to Vancouver by its Charter and in particular … [the power to make] by-laws … for regulating pedestrian, vehicular and other traffic … upon any street or part thereof …" It also flowed from the absolute title to the City's streets, and the power to enact a regulatory by-law necessarily or fairly implied from express powers set forth in the Charter.

The Court then addressed constitutional issues and the question of whether or not the regulation of panhandling might fall under Federal jurisdiction. This discussion was preceded by a reference to history of statutes governing panhandling, including previous Criminal Code provisions dealing with begging and vagrancy, including the prohibition of causing a disturbance in or near a public place by impeding or molesting other persons or obstructing persons who were there. Having reviewed all aspects of the by-law, including its history of development and fines imposed for its breach, the Court held that the municipality had recognized both its paramount duty to provide for the safe and efficient movement of pedestrians and the need for other forms of activity to be conducted on its streets. The Court held that the by-law could not be said to be criminal in its nature, but rather its dominate purpose was the regulation of movement, permitting panhandling as it does other activities, provided the paramount obligation to pedestrian movement could be attained.

The Court quoted with approval the City report which stated as follows:

"The regulation of panhandling as a street activity constitutes a pressing and substantial concern. However, such regulation must balance the competing rights of all people who use the streets including pedestrians, panhandlers, and those who derive their business from the street such as merchants and shop owners."

With respect to the Canadian Charter of Rights and Freedoms, the Court accepted that the activity of panhandling, even obstructive panhandling, constitutes expression. Here, the issue involved expression on public property. The Court quoted from the decision of the Supreme Court of Canada in Ramsden v. Peterborough (City), [1993] 2 SCR 1084, as follows:

"… [I]t must be understood since the government administers its properties for the benefit of citizens of the whole, that it is the citizens above all who have an interest in seeing that the properties are administered and operated in a manner consistent with their intended purpose … The Charter cannot be interpreted so as to consider only the interests of persons wishing to communicate … The Charter does not protect ‘expression' itself but freedom of expression. In my opinion, the ‘freedom' which an individual may have to communicate in a place owned by the government must necessarily be circumscribed by the interests of the latter and of the citizens as a whole. The individual will only be free to communicate in a place owned by the state if the form of expression he uses is compatible with the principal function or intended purpose of that place … In my view, if the expression takes a form that contravenes or is inconsistent with the function of the place where the attempt to communicate is made, such a form of expression must be considered to fall outside the sphere of 2(b)."

The Court held that "the act of panhandling which constitutes obstruction as defined [in the by-law] is not within the scope of the protected freedom of expression in section 2(b) of the Charter". In any event, the by-law did not prohibit panhandling as an act of solicitation other than in a narrowly-defined set of circumstances. Neither the purpose nor the effect of the impugned by-law was to restrict the freedom of expression.

The Court also held that "obstructive panhandling, as defined under the by-law" cannot be said to promote underlying values of freedom of expression, the pursuit of truth, the participation in political and social issues, and individual self-fulfilment and human flourishing.

The Court further concluded, in addressing section 7 of the Charter, "the right to life, liberty and security of the person", that such rights are not absolute, and that the by-law does not infringe upon a panhandler's right to life, liberty and security of the person, but simply proscribes particular conduct that affects the use of the streets by others.

The Court held that the concept of overbreadth entails a balancing of the state's interest against that of the individual, and affording a greater deference to the enacting authority, where there are competing rights on the subject-matter of the legislation (here, the use of the streets), than where it is simply a contest between the state and the individual (i.e. criminal law).

Finally, the Court held that the by-law did not violate section 15(1) of the Canadian Charter of Rights and Freedoms by discriminating on the basis of poverty, social conditions and the personal characteristic of poverty. The Court held that the by-law did not differentiate between other street users and panhandlers, given that all are proscribed from being obstructive when carrying out their otherwise legitimate activity. This by-law seeks only to address forms of conduct that are unique to panhandling, just as other enactments govern such things as the location of an activity.

The Court concluded that the by-law did not offend the provisions of section 15 of the Canadian Charter of Rights and Freedoms, in that "there is nothing to suggest that panhandling in an obstructive manner as defined in the by-law results in any differentiation between panhandlers and other street users – especially not the least of whom are pedestrians."

"To suggest that the right to panhandle should be permitted to occur in a manner that is unlimited, and in some instances as defined in [the by-law] is obstructive would be to raise the concept of the human dignity of such panhandlers to a questionable level. It would also cheapen the currency of the concept itself. Panhandling, in the form that constitutes a request for money or assistance, is a passive act, such an act, as I have observed early in these reasons, is a form of expression in which the panhandler tells another of his or her plight. By-law 8309 does not prohibit such an act."

The Court held, in conclusion, that the City of Vancouver had the authority to enact the by-law. The by-law was not a criminal matter, but fell within section 92(16) of the Constitution Act, 1867 (generally all matters of a merely local or private nature in the Province), and did not infringe section 2(b), 7 or 15 of the Canadian Charter of Rights and Freedoms.

Squeegeeing

In a more recent decision, the Supreme Court of Canada dismissed an application for leave to appeal from a decision of the Court of Appeal for Ontario, upholding impugned provisions of the Ontario Highway Traffic Act, involving "squeegeeing" on various roads in the City of Toronto.3

The act of "squeegeeing" was described by the Court of Appeal as follows: "They approached vehicles stopped in traffic on the roadway at red lights, washed the windshields of the vehicles, and extended their hands, soliciting money from the drivers." Some of the appellants simply approached vehicles and asked the drivers for money, by words or gestures, without offering to perform any service. These individuals were charged with soliciting a person in a vehicle on a roadway, contrary to section 3(2)(f) of the Safe Streets Act, 1999.

The Court restricted its discussion to the constitutionality of the specific provisions under which the appellants were charged, refusing to address issues involving other provisions of the Safe Streets Act, such as those involving "aggressive panhandling" and "captive audience" provisions.

While this case did not deal with the provisions of a municipal by-law, the support which it provided to the legislative principles in question would also support the jurisdiction of municipal councils to address similar issues where authorized to do so by their enabling legislation.

The Court held that the legislation was not in substance criminal law, and in any event, overlapping federal and provincial laws may both be constitutionally valid if enacted under an enumerated head in section 91 or section 92 of the Constitution Act, 1867. The subject of the legislation may have one aspect that falls within federal competence and another aspect that falls under provincial competence.

The Court held that the act of begging is communication and is evidently expression.

The Court referred to the decision of the Supreme Court of Canada in Montreal (City) v. 2952-1366 Quebec Inc., [2005] 2 SCR 141, in which that Court set out the three questions pertinent to a determination as to whether a law infringes freedom of expression:

1. Did the noise have expressive content, thereby bringing it within section 2(b) protection?

2. If so, does the method or location of this expression remove that protection?

3. If the expression is protected by section 2(b), does the by-law infringe that protection, either in purpose or effect?

The answer to all questions must be affirmative in order for there to be infringement of section 2(b). Here, the Court noted the pivotal fact in this case was that the appellants, "whether they cleaned windshields or simply begged, is that they did the act which led to their conviction while standing on the part of the street ordinarily used for vehicular traffic".

The Court quoted the majority of the Court in the Montreal decision as follows:

"The basic question with respect to expression on government-owned property is whether the place is a public place where one would expect constitutional protection for free expression on the basis that expression in that place does not conflict with the purposes which s. 2(b) is intended to serve, namely (1) democratic discourse, (2) truth-finding and (3) self-fulfilment. To answer this question, the following factors should be considered:

(a) the historical or actual function of the place; and

(b) whether other aspects of the place suggest that expression within it would undermine the values underlying free expression."

In the Banks decision, the Court concluded that the impugned provisions infringed the protection of section 2(b). The provisions in question were intended to control the expressive activity of soliciting while on a roadway. In achieving the overall objective of the legislation, the regulation of the interaction of pedestrians and vehicles on the roadways and the interests of public safety, efficient circulation and public enjoyment of public thoroughfares, its incidental purpose was also to restrict soliciting, which is an expressive activity, and therefore infringes section 2(b) of the Charter.

The Court also held, however, that:

"I would conclude the impugned provisions are justified under s. 1 of the Charter.

First, the objective of regulating the interaction of pedestrians and vehicles on roadways is important enough to warrant overriding the right guaranteed by s. 2(b). In a free and democratic society the government may attempt to reduce dangers on roadways and provide for efficient traffic circulation.

Second, prohibiting persons from soliciting or approaching a vehicle while ‘on a roadway' is rationally connected to the legislative objective. Reducing the presence of pedestrians in traffic lanes may rationally be expected to lessen traffic dangers and increase the efficiency of vehicular circulation.

Third, the provisions impair the appellants' right of expression as little as possible. While the legislation does effectively ban squeegeeing on roadways, it does not prohibit the appellants from expressing their message that they are in need of help. I appreciate that the provisions of the Act not in issue in this appeal place other restrictions on where and how the appellants may solicit. Still, they are left with many alternatives. They can convey their message on the sidewalk. They cannot squeegee car windows, but to the extent that they may wish to provide a service in exchange for donations, there are other alternatives available.

Fourth, the deleterious effects do not outweigh the benefits of the limits of the legislation. The limits achieve the objective of promoting public safety, efficient circulation, and public enjoyment of public thoroughfares. The impairment of the appellants' rights is minimal. They cannot proceed onto the traffic lanes of roadways. A possible criticism of the legislation is not that it is too broad, but that it is too narrow. The appellants submit that it does not prohibit political pamphleteering. Assuming such an activity would not be ‘soliciting' under the Act, the fact that the legislation is under-inclusive is not a basis for finding that it is unconstitutional. A prohibition of any and all physical presence of a pedestrian on a roadway would have been too broad. Many persons are required by their work duties to be on foot in traffic lanes. It is understandable and constitutionally permissible for the legislature to attempt to tailor restrictions to the actual problem that it has identified and has sought to remedy. In this case, there is no evidence of political pamphleteering in traffic lanes being a problem warranting legislative action or even that it occurs."

The provisions of the Act were therefore held to infringe the appellants' freedom of expression but such was justified under section 1 of the Charter.

Religious and Political Activity in Public Places, Streets and Transit Facilities

The most interesting and useful pre-Charter court decision involving political street activities is that of the Alberta Court of Appeal in R. v. Engler (1978), 7 MPLR 249, dealing with a by-law of the City of Calgary prohibiting joining in a procession on a street without obtaining a permit. The activity in question involved a demonstration and march by the Canada-Chile Solidarity Group, Calgary Branch, in September, 1997, marking the third anniversary of the military coup in Chile. Although the Group did apply for a permit, it was rejected, following objections by the Downtown Business Association, and a statement of policy by the City Board of Commissioners of not authorizing political groups or parties to carry out demonstrations on the 8th Avenue Mall, where the Group proposed to assemble. The applicant appealed to the Mayor, who fully endorsed the position taken by the Board.

Although the Charter of Rights and Freedoms had not yet been enacted, the Alberta Bill of Rights provided for rights to freedom of speech and freedom of assembly and association.

The judge at first instance held that the by-law was not directed to the freedoms of speech, assembly or association, nor to any interference therewith. "If it incidentally affects any of these freedoms, then this legislation is within Provincial competence and is not rendered invalid because it consequentially or incidentally affects such freedoms."

The Court of Appeal in its decision commenced with reference to the three landmark judgments of the Supreme Court of Canada: Saumur v. City of Quebec, [1953] 2 SCR 299; Dupond v. City of Montreal (1978) 19 NR 478; and the Alberta Press Act case, [1938] SCR 100.

Among the judgments referred to was that of Locke J. in Saumur that:

"The language of the by-law is perfectly general and if this contention of the intervenants be right, the Chief of Police might forbid the distribution in the streets of circulars or pamphlets published by one political party while allowing such distribution by that party which he personally favoured. It is well, in my opinion, that it be made clear that this right is involved in the decision of this case. Once a right of censorship of the contents of religious publications is established, the dissemination of the political views of writers by circulars or pamphlets delivered on the streets may equally be prohibited or restrained." (quoted in R. v. Engler, para. 31)

In the Saumur case, it was held that the by-law dealt with religion and with freedom of speech, and that the defendant had been unlawfully convicted.

The Court referred to Switzman v. Elbling, [1957] SCR 285, which struck down a Quebec "padlock law" which made it illegal for a person occupying a house to propagate communism by any means whatsoever. Although the majority of the Court held that the legislation was with respect to criminal law and ultra vires the Province, Abbott J., held that the law related to freedom of speech and came under Federal jurisdiction on that basis, stating that:

"The right of free expression of opinion and of criticism, upon matters of public policy and public administration, and the right to discuss and debate such matters, whether they be social, economic or political, are essential to the working of a parliamentary democracy such as ours." (quoted in R. v. Engler, para. 39)

The Court of Appeal then referred to Robertson and Rosetanni v. The Queen, [1963] SCR 651, dealing with the Lord's Day Act, in which it was said:

"It is to be remembered that the human rights and fundamental freedoms recognized by the courts of Canada before the enactment of the Canadian Bill of Rights and guaranteed by that statute, were the rights and freedoms of men living together in an organized society, subject to a rational, developed and civilized system of law which imposed limitations on the absolute liberty of the individual." (quoted in R. v. Engler, para. 45)

The Court then turned to the decision of the Supreme Court of Canada in Dupond v. City of Montreal, (1978) 19 NR 478, which dealt with a by-law of the City of Montreal relating to the use of streets and public places for assemblies, parades and other gatherings. The majority of the Court held that the regulations were in the nature of police or municipal regulations of a merely local character, passed for reasons peculiar to Montreal at the relevant time. The measures were not punitive but were essentially preventive. Accordingly, the prohibitory form of the by-laws could be said to be in substance regulatory of the use of the public domain, and therefore valid.

Bettz J., delivering the judgment of the majority, stated:

"I cannot see anything in the ordinance which interferes with freedom of religion, of the press or of speech, or which imposes religious observances, in such ways to bring the matter within the criminal law power of Parliament. The ordinance prohibits the holding of all assemblies, parades or gatherings for a time period of 30 days, irrespective of religion, ideology or political views … The discretionary power to pass an ordinance under section 5 of the by-law is not an uncontrollable discretion given to a municipal officer, as was the case in Saumur: it is vested in the Executive Committee of the City; it cannot be exercised except on report of the directors of the police department and of the law department of the City. This report must give reasons why an ordinance should be passed. These reasons must be up to the standard contemplated in the preamble of the by-law and in section 5, that is, an exceptional emergency situation must have arisen which warrants the enactment of preventative measures; finally, the prohibition must be limited in time to the period determined by the Executive Committee; it must be temporary for by their very nature exceptional emergency measures cannot be permanent." (quoted in R. v. Engler, para. 65)

Ultimately, the Court held that the by-law could not be characterized as having for its purpose the censorship of political or religious views, but dealt with a matter of a local or private nature directed to the use of streets in the City of Calgary, and not to restricting the dissemination of political views.

It is emphasized that the Engler decision was a pre-Charter case, and is referred to herein as summarizing the law at that time, in which the principal decision to be made by the Court was with respect to the constitutional jurisdiction, although implicitly it appears to have dealt with the issues raised under the Alberta Bill of Rights, referred to at the outset of the decision.

By contrast, I now refer to two post-Charter decisions in which the opposite result was reached.

In Churchill v. Greater Vancouver Transportation Authority (2001), 88 BCLR (3d) 364, the British Columbia Supreme Court dealt with the safety rules of the Greater Vancouver Transportation Authority, which prohibited anyone from selling or offering printed matter or merchandise upon transit vehicles or properties unless authorized by a transit employee. The Authority also had an internal policy prohibiting electioneering activities in fare-paid zones and transit vehicles but permitting such activities outside transit stations and in ticket vending machine areas, provided that there was no interference with the movement of passengers.

The campaign manager for a candidate in a Federal election brought a petition to the Court for declaration that the safety rules violated the Canadian Charter of Rights and Freedoms.

The Court held that although the safety rules themselves were not aimed at restricting free speech, the way in which they were implemented breached the Charter right to freedom of expression. Although the policy was directed at the pressing and substantial objective of the safety and convenience of transit passengers, and was rationally connected to that objective, the implementation of the policy did not minimally impair rights. The petitioner's right to freedom of expression was significantly impaired when he was asked to leave a transit station property. Although the safety rules were not declared void, the Court read into them the general policy about electioneering activities, and the petitioner was granted a declaration that he was entitled to distribute political literature pursuant to the amended version of the rules.

The petitioner in that case relied primarily upon freedom of expression, as guaranteed by section 2(b) of the Charter.

The Court held that despite the fact that the respondent's policy was aimed only to control the physical consequences of particular conduct, there was a violation of the petitioner's rights under section 2(b) of the Charter.

In another recent decision, Vancouver (City) v. Zhang (2010), 74 MPLR (4th) 1, the British Columbia Court of Appeal addressed a City of Vancouver by-law which prohibited structures from being constructed on City streets. Section 71 of the by-law precluded the use of a structure for any political expression on City streets, and left to City Council an unbounded discretion to make exceptions.

In this case, the practitioners of Falun Gong or Falun Dafa, a spiritual practice emerging from ancient China, set up banners and a makeshift meditation hut in front of the Chinese Consulate on Granville Street and began a 300-hour hunger strike. The sit-in evolved into a vigil by one person 24 hours a day, 7 days a week, in the hut, located on a grassy portion of the City street. The meditation hut was accompanied by an 8 x 100 foot billboard covered with photos of human rights abuses, posters and painted messages.

The Court concluded that the City's effective ban on the use of a structure for political expression did not meet the minimal impairment requirement explained in R. v. Oakes, [1986] 1 SCR 103, and was consequently of no force and effect as being inconsistent with freedom of expression under the Charter.

The Court below had upheld the by-law, stating its purpose as follows:

"Section 71 of the by-law is concerned with the orderly administration of public space for the benefit of the public at large and with balancing competing interests existing on that space. Streets provide the means for people to travel, but are also the primary means for delivery of municipal services and utilities. Streets are the preferred location for a variety of commercial and non-commercial activities, and are a traditional meeting place where individuals interact with each other for commercial or personal reasons. These users compete and require constant and effective regulation. Such regulation is one of the primary functions of a municipality. As well, the City has a valid and important role in preserving the aesthetic appearance of streets through regulation of permanent encroachments." (Zhang, para. 9)

The Court of Appeal noted that, as in many regulatory schemes, section 1 of the by-law imposed an absolute prohibition on certain activities and then provided for exemptions or exceptions. Encroachment on the street, if not otherwise permitted by by-law, would be subject to conditions as determined by the Council, or in the absence of that, require written permission of the City Engineer.

The Court held that in effect the by-law precluded the use of a structure for any political expression on City streets, while leaving with Council an unbounded discretion to make exceptions, a power apparently never exercised since the introduction of the by-law 60 years ago.

In its analysis of the issue of Charter infringement, the Court adopted the approach referred to above, applied in Montreal (City) v. 2952-1366 Quebec Inc., [2005] 3 SCR 141, paras. 56-57:

"First, did the noise have expressive content, thereby bringing it within section 2(b) protection? Second, if so, does the method or location of this expression remove that protection? Third, if the expression is protected by section 2(b), does the by-law infringe that protection, either in purpose or effect? (Reference to Irwin Toy Limited v. Quebec (Attorney General), [1989] 1 SCR 927)

The first two questions relate to whether the expression at issue in this case falls within the protective sphere of section 2(b). They are premised on the distinction made in Irwin Toy between content (which is always protected) and ‘form' (which may not be protected). While this distinction may sometimes be blurred … it is useful in cases such as this where method and location are central to determining whether the prohibited expression is protected by the guarantee of free expression."

With respect to whether or not the structures have expressive content, the Court held that "the billboard and meditation hut were ‘part and parcel of the manner' in which the Falun Gong participants chose to express themselves and is deserving of protection".

With respect to whether or not the method or location of the structures removed section 2(b) protection, the Court held that "the question is not whether the form of the expression is compatible with the function of the street, but whether free expression in the chosen form would undermine the values the guarantee is designed to promote".

The Court noted that the function of public streets is compatible with open public expression. The structures at issue support the values of democratic discourse and self-fulfillment. Public streets are, and have been historically, spaces in which political expression takes place, and where structures are maintained. A multiplicity of freestanding objects exists on City streets, suggesting that the presence of a structure on a street does not undermine the values of section 2(b).

The Court accepted that all three purposes of section 2(b) were served by the appellants' expressive activity and that neither the method or location of the expression should require removing the protections of section 2(b).

The Court accepted that streets are a finite public resource, whose use must be regulated, and that in this context the appropriate manager is the municipal government. "It is self-evident that the right and the freedom to use public streets cannot be absolute and that they have a multitude of competing uses. This is a case, then, where it has become necessary to limit rights and freedoms because their exercise ‘would be inimical to the realization of collective goals of fundamental importance'."

The Court noted that the parties to the proceedings agreed that to the extent the prohibition in section 71 is designed to keep streets free from obstruction and encroachments, it is rationally connected to the City's objective. "They divide on whether the measure is ‘prescribed by law' and whether the City has met the other components of the test … whether the objective of section 71 is pressing and substantial, whether it limits freedom of expression in a reasonably minimal way, and whether the deleterious effect on the right is reasonably proportionate to the benefit."

The Court accepted that the by-law was "prescribed by law", not being so vague as not to constitute a limit prescribed by law, nor too overbroad. The law was capable of interpretation and left no doubt as to what conduct was prohibited.

The Court also found a rational connection between the by-law and the City's goal of regulating the placement of structures on public streets. This left the fundamental question of whether the limit minimally impaired the right to political expression, i.e. "whether the limit on the right is reasonably tailored to the pressing and substantial goal put forward to justify the limited. Another way of putting this question is to ask whether they are less harmful ways of achieving the legislative goal." In this analysis, the Court accords the Legislature a measure of deference, "particularly on complex social issues where the Legislatures may be better positioned than the courts to choose among a range of alternatives."

The Court concluded that the City, by maintaining a complete ban, and effectively, relying on prosecutorial discretion and the Council's lack of power to direct the use of that discretion, rendered section 71 unconstitutional and of no force and effect. "They reached beyond that which is permitted to them when political speech is the right sought to be exercised. It cannot be said there is not a more reasonably tailored regulatory scheme."

Finally, the Court held:

"I am persuaded ‘the inconvenience' the practitioners incur from not being able to use a structure to aid their expressive activity outweighs the little benefit to the City the trial judge found flowed from what she considered the ‘regulation' of political expression, of which I am persuaded is an effective prohibition on the use of a structure for political expression."

The Court declared section 71 of no force and effect, but suspended the effect of the declaration to enable the City to prevent the unregulated and haphazard proliferation of structures of a political nature on City streets.

A recent decision of the Albert Court of Queen's Bench, R. v. Pawlowski, [2011] AJ No. 189, dealt with two by-laws of the City of Calgary:

1. the Parks and Pathways By-law, which prohibited persons in a park from operating an amplification system; and

2. the Streets By-law, which prohibited the placement, direction or disposing of material on any portion of a street without a permit from the traffic engineer.

The Court held that the Parks and Pathways By-law was valid, having as a scheme and intent the prohibition of the use of a sound amplification system that interfered with the public's peaceful enjoyment of a park. Reasonable parties would have sufficient notice that the use of such a system in a park without a permit could result in an infraction. The law was not vague or overly broad. Assuming the respondent's subjective belief that there was a nexus between the activity of using an amplification system to broadcast his religiously-based message and his religious beliefs, the prohibition against the use of an amplification system was a trivial or insubstantial burden upon him. It did not threaten his religious beliefs, nor did it impair his right to conduct his practice of preaching to the homeless.

The Parks and Pathways By-law also did not violate section 2(a) of the Charter. While it violated the respondent's section 2(b) right of freedom of expression, it was saved by section 1, its purpose was to ensure City's parks and pathways remained safe and accessible for the enjoyment of all Calgarians, and this was pressing and substantial. Controlling noise and having peaceful use of the City's parks was rationally connected to the objective. The impairment was minimal as it did not curtail public discourse, but only limited its volume. The beneficial effects of the by-law outweighed its prejudicial effects, and the City had not abused its powers.

With respect to the Streets By-law, the prohibition of the placement of any object or article on the street was overbroad, as it included easily-imaginable circumstances which commonly arise in day-to-day life.

Use of Municipal Streets for Soliciting for Prostitution

In 1981, the City Council of the City of Calgary amended its Street By-law to add the following provisions:

1. no person shall be or remain on a street for the purpose of prostitution;

2. no person shall approach another person on a street for the purpose of prostitution.

Although upheld by the Alberta Court of Appeal, the by-law was held by the Supreme Court of Canada to be constitutionally invalid as invading the exclusive Federal power in relation to the criminal law. (R. v. Westendorp, [1983] 1 SCR 43)

The Alberta Court of Appeal based its decision by reading down the by-law to apply only to public nuisance.

In reversing that decision, the Supreme Court made its decision entirely on the constitutional grounds, refusing to apply section 7 of the Charter of Rights and Freedoms, in the following words:

"It appeared in the course of argument that counsel for the appellant not only sought to infuse a substantive content into section 7 beyond any procedural limitation of its terms, but also to rely on section 7 to challenge the validity of the by-law provision without accepting as a necessary basis for the section 7 submission that it could only apply if the by-law was to be taken as valid under the distribution of powers between the legislating authorities. In the result, counsel for the appellant abandoned the challenge under the Canadian Charter of Rights and Freedoms."

That was the only provision of the Charter addressed by the Court.

The Court held that the by-law was simply an attempt by the City to use its nuisance jurisdiction in an attempt to control or punish prostitution, beyond the power of provincial legislation. Here, the legislation could also not be supported as being in relation to the control and enjoyment of property.

The Court noted that the by-law was aimed at "the evil of prostitution", a matter of public morality, the pith and substance of which would be beyond the competence of the Legislature of the Province.

Current Affairs

Recently, a judge of the Ontario Superior Court of Justice struck down the common bawdy house provisions of the Criminal Code as they applied to prostitution, and the offences of living on the avails of adult prostitution and communication for the purpose of prostitution, on the basis that such provisions are contrary to section 2(b) and 7 of the Charter and were not saved under section 1. (Bedford v. Canada (Attorney General) (2010), 102 OR (3d) 321)

This decision is now under appeal to the Ontario Court of Appeal. The above judgment has been stayed until the earlier of April 29, 2011, or until the appeal is argued. ([2010] O.J. No. 5155)

Since it appears to be within the jurisdiction of municipalities to regulate and govern the sale of services on their roads, as well as to license and govern vendors, it may be, if the judgment in the Bedford case is upheld, that municipalities could be in a position of being able to address the sale of sexual services in the same way as they license, for instance, body rub parlours and adult entertainment parlours.

Recently, a City councillor of the City of Toronto suggested that the City establish a red-light district on Toronto Island, thus also raising the issue of possible land use and other municipal measures to address such issues.

Such a scenario, of course, may be beyond the scope of municipal jurisdiction at this time, but is a space which should be watched.



1  Municipal Act, 2001, S.O. 2001, c. 25, s. 10(2) 5, 6, 11(2) 5, 6.

2  Ibid., s. 11(3) 1, 4, 5.

3  R. v. Banks, [2007] SCCA No. 139, dismissing an application for leave
   to appeal from the decision of the Ontario Court of Appeal, which had
   dismissed a judgment at first instance finding the applicants guilty of
   offence of soliciting business contrary to section 177(2) of the Act;
   (2007), 84 OR (3d) 1(C.A.).