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Nanaimo (City) v. Northridge Fitness Centre Ltd.

Between
City of Nanaimo, and
Northridge Fitness Centre Ltd.

[2006] B.C.J. No. 441
2006 BCPC 67

Nanaimo Registry No. 57412-1
British Columbia Provincial Court
(Criminal Division)
Nanaimo, British Columbia

Saunders Prov. Ct. J.

Heard: November 1, 14 and 28, 2005.
Judgment: January 20, 2006.

Constitutional law — Canadian Charter of Rights and Freedoms — Fundamental freedoms — Freedom of expression — Reasonable limits — Oakes test — Motion to declare that a bylaw of the City of Nanaimo restricting large portable advertising boards to new businesses violated the Charter right to freedom of expression dismissed — City's objective to control proliferation of portable signs to address problem of visual pollution and balance public interests with commercial interests was pressing and substantive — Bylaw rationally connected to objective, as evidence indicated that number of signs dropped since bylaw — Bylaw minimally impaired right to freedom of expression, as smaller portable signs and other advertising means were available for businesses — Means used by city to address objective and its effects were proportional.

Motion to declare that a bylaw of the City of Nanaimo restricting large portable advertising boards to new businesses violated the Charter right to freedom of expression — In order to curb proliferation of portable advertising signs, City of Nanaimo passed bylaw restricting use of portable boards 32 square feet in dimension to new businesses — Northridge Fitness Centre was a business located away from the highway that used a 32 square feet portable sign to advertise — Northridge was charged with violating the City's sign bylaw — Northridge claimed bylaw was unconstitutional — HELD: Motion dismissed — Restriction on use of portable sign was reasonable limit that was demonstrably justified in free and democratic society — City's objective to control proliferation of portable signs to address problem of visual pollution and balance public interests with commercial interests was pressing and substantive — Bylaw rationally connected to objective — Evidence indicated that number of portable signs dropped after bylaw was introduced — Bylaw minimally impaired right to freedom of expression, as smaller portable signs and other advertising means were available for businesses — No evidence of improper purpose or unreasonableness on part of the City — City held public consultations, did Charter review and considered various options to deal with problem — Means used by city to address objective and its effects were proportional.

Statutes, Regulations and Rules Cited:
Canadian Charter of Rights and Freedoms, 1982, s. 1, s. 2(b)
City of Nanaimo Sign Bylaw No. 2850, s. 7(1)
Local Government Act, s. 8, s. 65
Counsel:
Counsel for the City of Nanaimo: Troy DeSouza
Counsel for Northridge Fitness Centre Ltd.: Brian Harvey
SAUNDERS PROV. CT. J.:—
THE INFORMATION
1 Northridge Fitness Centre Ltd. (hereafter "Northridge") is charged, on two counts, with violating section 7(1) of the City of Nanaimo Sign Bylaw 1987, No. 2850.
2 On count 1, Northridge is charged that on the 13th of April, 2004, at or near Turner Road, Nanaimo, being the owner of a sign advertising for a "Spring Makeover", did carry out the erection, construction, placing, structural alteration or relocation of the sign without obtaining and holding a valid sign permit.
3 On count 2, Northridge is charged that on the 16th of July, 2004, at Turner Road, Nanaimo, being the owner of a temporary, portable 4 x 8 sign did carry out the erection, construction, placing, structural alteration or relocation of the sign, without obtaining and holding a valid sign permit.
4 Northridge filed a Notice of Constitutional Questions Act motion on May 17, 2005, for a declaration that the bylaw as it relates to portable signs infringes the right to freedom of expression guaranteed by section 2(b) of the Canadian Charter of Rights and Freedoms and that the infringement is not a reasonable limit as can be demonstrably justified in a free and democratic society pursuant to section 1 of the Charter.
THE FACTS
5 In an Agreed Statement of Facts (exhibit 1), it was agreed that the City of Nanaimo is a municipal corporation pursuant to the Community Charter and is incorporated by Letters Patent and has the authority to regulate signage pursuant to sections 8 and 65 of the Community Charter and the Local Government Act.
6 On count 1, Northridge agreed that it carried out the erection, construction and placing of a sign advertising a "Spring Makeover" at 5800 Turner Road, Nanaimo, without first obtaining and holding a valid sign permit.
7 On count 2, Northridge agreed that it carried out the erection, construction and placing of a temporary, portable 4 x 8 sign at 5800 Turner Road, Nanaimo, without obtaining and holding a valid sign permit.
8 It was further agreed that 4 x 8 signs can be erected by new businesses but Northridge was not a new business as defined by the bylaw at the time.
9 Northridge admitted committing both offences contrary to section 7(1) of the Sign Bylaw.
THE ISSUE
10 It was agreed by counsel that the limitation of 4 x 8 signs to new businesses only amounts to a limitation on expression protected by section 2(b) of the Charter, as it relates to count 2. The issue is whether the limit is justified under section 1 of the Charter.
11 It was conceded by both counsel, in final submissions, that count 1 deals with a sign which is not a portable sign and that the evidence has made out the offence to which Northridge has no defence.
12 The issue, therefore, relates only to count 2 and is confined to section 1 of the Charter.
THE EVIDENCE ON BEHALF OF THE CITY OF NANAIMO
13 Mayor Gary Korpan, Patrick Murphy and Toby Seward testified regarding the objectives of the bylaw amendment.
14 His Worship, Mayor Gary Korpan, testified that the primary objective of the bylaw amendment was to reduce the dramatic increase of portable signs in the City of Nanaimo between 1999 to 2003, in particular the 4 x 8 signs which proliferated along the highway. He has been mayor since 1993 and has noticed the visual pollution which was clogging the view corridor, giving rise to unfair competition, and blocking traffic, over the years. There were portable signs for which licences were not obtained, or were being left up longer than the licence permitted. There was difficulty in enforcing the bylaw as a result. There were letters, comments and complaints from concerned citizens about the matter so Council set up a committee to review the situation in 2002.

THE EVIDENCE FOR NORTHRIDGE
29 Caroline Hancox is the sole Director and shareholder of Northridge which is a limited company formed in 1996. She deliberately chose the location which faces the ocean so that her customers attending at fitness classes, could enjoy the view. The back of the property faces the road and the location is not visible from the highway so she uses signs on the highway to advertise. She conceded that by choosing the view location, she gave up visibility on the highway so she uses the portable signs to give her business that visibility. She advertises extensively to enrol new customers, using the newspaper, radio, direct mail and signs.

THE LAW AND ITS APPLICATION
31 The restriction on the use of 4 x 8 portable signs to new businesses for a period of ninety days and no more is a limitation on the freedom of expression under section 2(b) of the Charter. The remaining question is whether that limitation is justified under section 1 of the Charter.
32 Section 1 provides that the Charter guarantees the rights and freedoms set out in the Charter subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
33 Commercial expression is protected by the Charter (Irwin Toy Ltd. v. Quebec (Attorney General) [1989] 1 S.C.R. 927; Guignard c. St.-Hyacinthe (Ville) (2002) 27 M.P.L.R. (3d) 1 (S.C.C.)).
34 Commercial expression is at the lower end of the scale when freedom of expression is being considered and the standard to be applied to the actions of the City in determining whether it has meet the criteria of section 1 of the Charter is lower than that applied to political or social expression (Guignard c. St.-Hyacinthe (Ville) (above); Whitehorse (City) v. Wharf on Fourth Inc. (2004) 1 M.P.L.R. (4th) 262 (Y.K.T.C.)).

37 The issue before this court is whether portable 4 x 8 signs which are available only to new businesses for a ninety day period is a reasonable limit which can be demonstrably justified in a free and democratic society.

39 The section 1 inquiry places an onus on the City of Nanaimo to show: a) that the limit of the bylaw amendment is directed at a pressing and substantial objective; b) that the bylaw amendment is rationally connected to that objective; c) that the bylaw amendment minimally impairs the right to freedom of expression; and, d) that there is a proportionality between the effects and the objects of the bylaw amendment (R. v. Oakes, [1986] 1 S.C.R. 103; Vann Niagara Ltd. v. Oakville (Town) (2003) 43 M.P.L.R. (3d) 1 (S.C.C.)).

49 The evidence establishes that the bylaw amendment was introduced to address the pressing and substantial objective of visual pollution along the highway and balancing public interests with commercial interests.

54 The evidence confirms that it is clearly rationally connected to its objective of controlling the proliferation of such signs along the highway and addressing the aesthetic and safety concerns (Stoney Creek (City) v. Advantage Signs Ltd. (1997) 149 D.L.R. (4th) 282 (Ont. C.A.); Vann Niagara Ltd. v. Oakville (Town) (above); Whitehorse (City) v. Wharf on Fourth Inc. (above)).

61 I find on the evidence that the amendment limit on portable signs to 32 square feet (4 x 8 feet) for a ninety day period for new businesses was a reasonable alternative to a total ban. I can find no evidence of an improper purpose or unreasonableness on the part of the City in introducing the amendment.

67 Accordingly, there was a consideration by the City of how to find a reasonable alternative and the least restrictive measure was chosen, short of a total ban of all portable signs.
68 There were also other provisions of the 1987 Bylaw allowing for advertising to established businesses so they could still effectively communicate their message (Langley (Township) v.James (2004) 45 M.P.L.R. (3d) 272 (B.C.S.C.).
69 Ms. Hancox conceded in cross examination that her business fell off in the summer months because people were away on vacation and were not signing up for fitness classes as a result but that the numbers had stayed consistent over the years. Furthermore, she could use free standing signs, sandwich boards, and other forms of advertisement such as newspaper, radio and direct mail. She used the portable signs to advertise discounted programs or changes in programs.
70 The evidence supports a finding that the means used to address the objective and its effects were proportional.
71 I am satisfied that the City has met the onus on all four criteria and has established that the bylaw as amended is demonstrably justified according to section 1 of the Charter.
FINDING
72 The Constitutional Questions Motion is accordingly dismissed.
73 Northridge is convicted on counts 1 and 2 under section 7(1) of the Sign Bylaw.
SAUNDERS PROV. CT. J. cp/i/qw/qlemo/qlbrl Bottom of Form

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