Ramsden v. Peterborough (City) [1993] 2 S.C.R. 1084: Postering -- Municipal by-law banning posters on public property -- Whether postering a form of expression -- If so, whether protected by s. 2(b) -- If infringement of s. 2(b), whether justified under s. 1

Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO

Constitutional law -- Charter of Rights -- Freedom of expression -- Postering -- Municipal by-law banning posters on public property -- Whether postering a form of expression -- If so, whether protected by s. 2(b) -- If infringement of s. 2(b), whether justified under s. 1 -- Canadian Charter of Rights and Freedoms, ss. 1, 2(b).

This appeal concerned the constitutional validity of a municipal by-law prohibiting all postering on public property. The issue was whether the absolute ban on such postering infringed the Charter guarantee of freedom of expression, and if so whether that infringement was justified under s. 1 of the Charter.

The accused advertised upcoming performances of his band on two occasions by affixing posters to hydro poles contrary to a city by-law banning posters on public property. On both occasions, he was charged under the by-law. The accused, while not denying the offences, took the position that the by-law was unconstitutional because it was inconsistent with the guarantee of freedom of expression in s. 2(b) of the Canadian Charter of Rights and Freedoms.

A Justice of the Peace found that the by-law did not violate the Charter and convicted the accused. The appeal to Provincial Court, which was dismissed, was based on the agreed facts that postering on utility poles can constitute a safety hazard to workers climbing them, a traffic hazard if placed facing traffic, and visual and aesthetic blight contributing to litter if left too long. A majority of the members of the Court of Appeal found that the by-law infringed the accused's freedom of expression and was not justifiable under s. 1 of the Charter. The constitutional questions in this Court queried if the by-law limited the right guaranteed by s. 2(b) of the Charter, and if so, whether such limits were demonstrably justified under s. 1.

Held: The appeal should be dismissed.

In determining whether postering falls within the scope of s. 2(b), it must first be decided that it constitutes expression, and if so, whether postering on public property is protected by s. 2(b). The second step requires a determination of whether the purpose or effect of the by-law is to restrict freedom of expression.

Postering conveys or attempts to convey a meaning, regardless of whether it constitutes advertising, political speech or art. The first part of the s. 2(b) test is satisfied.

Postering on public property, including utility poles, clearly fosters political and social decision-making and thereby furthers at least one of the values underlying s. 2(b). No persuasive distinction existed between using public space for leaflet distribution and using public property for the display of posters. The question was not whether or how the speaker used the forum, but whether that use of the forum either furthered the values underlying the constitutional protection of freedom of expression or was compatible with the primary function of the property.

The by-law was aimed at the consequences of the particular conduct in question and was not tied to content. On its face, it was content-neutral and prohibited all messages from being conveyed in a certain manner and at certain places. The purpose of the by-law -- avoiding the consequences associated with postering -- was "meritorious". The absolute prohibition of postering on public property, however, prevented the communication of political, cultural and artistic messages and therefore, infringed s. 2(b).

The objective of the by-law was pressing and substantial and the total ban was rationally connected to these objectives. By prohibiting posters entirely, litter, aesthetic blight and associated hazards were avoided. The complete ban on postering, however, did not restrict expression as little as is reasonably possible. The by-law extended to trees, all types of poles, and all other public property. Worker safety was only affected when posters were attached to wooden utility poles and traffic safety was affected only where posters were displayed facing roadways. Many alternatives to a complete ban exist. Proportionality between the effects and the objective was not achieved because the benefits of the by-law were limited while the abrogation of the freedom was total. While the legislative goals were important, they did not warrant the complete denial of access to a historically and politically significant form of expression.

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