Her Majesty the Queen in Right of Ontario as represented by The Minister of Transportation v. Miracle et al. [Indexed as: Ontario (Minister of Transportation) v. Miracle]
74 O.R. (3d) 161
[2005] O.J. No. 299
Docket: C40235
Court of Appeal for Ontario,
Doherty, Moldaver and Gillese JJ.A.
February 2, 2005
- Application for extension of time was dismissed November 10, 2005 (Major, Fish and Abella).
Charter of Rights and Freedoms -- Freedom of expression -- Reasonable limits -- Public Transportation and Highway Improvement Act prohibiting placement of signs within 400 metres of controlled-access highway except under permit granted by Minister -- Act limiting freedom of expression -- Limit on freedom of expression being "authorized by law" despite Minister's discretion as exercise of that discretion is governed by common law rules -- Limitation being justified under s. 1 of Charter -- Canadian Charter of Rights and Freedoms, ss. 1, 2(b) -- Public Transportation and Highway Improvement Act, R.S.O. 1990, c. P.50.
M owned and operated a shopping plaza near a major highway and also owned land abutting the highway. He affixed a 400- square-foot sign to a tractor-trailer parked on his land a few metres south of the highway advertising his plaza. The Minister of Transportation applied for a warrant authorizing officers to enter onto M's property and remove the sign on the basis that it did not comply with s. 38(2)(e) of the Public Transportation and Highway Improvement Act. Section 38(2)(e) prohibits signs (other than a single sign not more than 60 centimetres by 30 centimetres in size) being placed within 400 metres of controlled-access highways unless authorized by a permit issued by the Minister. M alleged that s. 38(2)(e) infringed his freedom of expression, contrary to s. 2(b) of the Canadian Charter of Rights and Freedoms. The Minister's application was granted. M appealed.
Held, the appeal should be dismissed.
The Minister conceded that s. 38(2)(e) of the Act limits freedom of expression and, therefore, prima facie infringes s. 2(b) of the Charter. The limit on freedom of expression is "prescribed by law" as a result of the combination of the express statutory language in s. 38(2)(e) and the application of the common law rules that govern the exercise of governmental discretion. While the Act does not specify the basis upon which the Minister is to exercise his discretion, any exercise of discretion by the Minister pursuant to s. 38(2) (e) is constrained by the common law principle that discretion may only be exercised in a manner consistent with the purposes and goals of its governing legislation. The legislative objectives of preventing visual pollution and enhancing the safety of the travelling public are pressing and substantial. The measures contained in s. 38(2)(e) are rationally connected to both objectives. M's sign was not prohibited be cause of its content. No matter what the content, a sign is prohibited unless it falls within the dimensions stipulated in s. 38(2)(e) or a permit is obtained. The restriction is not an outright prohibition on all signs. The law represents a rational attempt to strike a balance between the right of businesses to identify themselves and convey messages and the right of the public to maintain standards of aesthetics. The impugned provision minimally impairs freedom of expression. The effect of s. 38(2)(e) is not to prevent all expression; rather, it requires that such expression take place 400 metres from the limit of controlled-access highways, meet certain size restrictions or be approved by the Minister. There is a proportionality [page162] between the effects of the carefully defined and restricted limit in s. 38(2)(e) and the objectives of limiting visual pollution and promoting safety along major highways. The deleterious effects of the measures are clearly outweighed by th e legislative objectives.
APPEAL from the order of Maranger J., reported at [2003] O.J. No. 2239, 44 M.V.R. (4th) 181 (S.C.J.), granting a warrant authorizing entry onto the respondent's property and removal of a sign.
Osborne v. Canada (Treasury Board), 1991 60 (SCC), [1991] 2 S.C.R. 69, [1991] S.C.J. No. 45, 82 D.L.R. (4th) 321, 125 N.R. 241, 4 C.R.R. (2d) 30, 37 C.C.E.L. 135, 91 C.L.L.C. 14,026 (sub nom. Osborne v. Canadian Treas. Bd.); R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103, [1986] S.C.J. No. 7, 53 O.R. (2d) 719n, 14 O.A.C. 335, 26 D.L.R. (4th) 200, 65 N.R. 87, 19 C.R.R. 308, 24 C.C.C. (3d) 321, 50 C.R. (3d) 1; R. v. Therens, 1985 29 (SCC), [1985] 1 S.C.R. 613, [1985] S.C.J. No. 30, 38 Alta. L.R. (2d) 99n, 40 Sask. R. 122, 18 D.L.R. (4th) 655, 59 N.R. 122, [1985] 4 W.W.R. 286, 13 C.R.R. 193, 18 C.C.C. (3d) 481, 45 C.R. (3d) 97, 32 M.V.R. 153, apld R. v. Guignard, [2002] 1 S.C.R. 472, [2002] S.C.J. No. 16, 209 D.L.R. (4th) 549, 282 N.R. 365, 92 C.R.R. (2d) 63, 49 C.R. (5th) 95, 27 M.P.L.R. (3d) 1, 2002 SCC 14 (sub nom. Guignard v. St-Hyacinthe (Ville)); Vann Niagara Ltd. v. Oakville (Town), [2003] 3 S.C.R. 158, [2003] S.C.J. No. 71, 234 D.L.R. (4th) 118, 316 N.R. 201, 43 M.P.L.R. (3d) 1, 2003 SCC 65, revg (2002), 2002 44984 (ON CA), 60 O.R. (3d) 1, [2002] O.J. No. 2323, 214 D.L.R. (4th) 307, 94 C.R.R. (2d) 255, 43 M.P.L.R. (3d) 9 (C.A.), distd Other cases referred to Canadian Mobile Sign Assn. v. Burlington (City) (1997), 1997 4453 (ON CA), 34 O.R. (3d) 134, [1997] O.J. No. 2870, 149 D.L.R. (4th) 292, 45 C.R.R. (2d) 229, 46 M.P.L.R. (2d) 14 (C.A.) [Leave to appeal to S.C.C. refused (1998), 50 C.R.R. (2d) 376n, 227 N.R. 199n]; Multi-Malls Inc. v. Ontario (Minister of Transportation and Communications) (1977), 1976 623 (ON CA), 14 O.R. (2d) 49, 73 D.L.R. (3d) 18 (C.A.); Nichol (Township) v. McCarthy Signs Co. Ltd. (1997), 1997 1680 (ON CA), 33 O.R. (3d) 771, [1997] O.J. No. 2053, 43 C.R.R. (2d) 309, 39 M.P.L.R. (2d) 96 (C.A.); R. v. Sharpe, [2001] 1 S.C.R. 45, [2001] S.C.J. No. 3, 88 B.C.L.R. (3d) 1, 194 D.L.R. (4th) 1, [2001] 6 W.W.R. 1, 86 C.R.R. (2d) 1, 150 C.C.C. (3d) 321, 39 C.R. (5th) 72, 2001 SCC 2; Roncarelli v. Duplessis, 1959 50 (SCC), [1959] S.C.R. 121, 16 D.L.R. (2d) 689; Stoney Creek (City) v. Ad Vantage Signs Ltd. (1997), 1997 561 (ON CA), 34 O.R. (3d) 65, [1997] O.J. No. 2869, 149 D.L.R. (4th) 282, 45 C.R.R. (2d) 220, 117 C.C.C. (3d) 409, 47 M.P.L.R. (2d) 145 (C.A.) Statutes referred to Canadian Charter of Rights and Freedoms, ss. 1, 2(b) Public Transportation and Highway Improvement Act, R.S.O. 1990, c. P.50, s. 38(2)(e)
Robert J. Reynolds, for appellant. Daniel Guttman, for respondent.
The judgment of the court was delivered by
[1] GILLESE J.A.: -- Provincial legislation limits the right of property owners to place signs close to major Ontario highways. [page163] Is that legislation constitutionally valid or an unjustifiable limit on freedom of expression? This appeal decides that question.
Background
[2] The appellant, Clifford Andrew Miracle, owns and operates the Mohawk Plaza, a shopping plaza that consists of a gas bar, a restaurant, and several retail stores. The Mohawk Plaza is located about three kilometres south of Highway 401 to the west of Napanee, Ontario.
[3] Mr. Miracle also owns land that lies north of the Mohawk Plaza and abuts the south side of Highway 401.
[4] Between February 1999 and May 2000, the appellant used the province's Logo Sign system to advertise the Mohawk Plaza. The Logo Sign system is offered through the Ministry of Transportation. It enables businesses to place their logos on sign structures along designated routes with the result that generic motorist icons are replaced with brand-specific corporate symbols for fuel, food and accommodation. Through the Logo Sign system, businesses can give visual business identification and directional information to those travelling on major Ontario highways. Mr. Miracle's Mohawk Gas logo was displayed on each of the eastbound and westbound travel lane signs for interchange 566 and on each of the eastbound and westbound exit ramp signs.
[5] In 2000, Mr. Miracle affixed a billboard to a tractor- trailer parked on his land a few metres south of Highway 401. The sign was approximately 400 square feet and advertised the Mohawk Nation and the Mohawk Plaza.
[6] The respondent, the Ministry of Transportation, ordered Mr. Miracle to remove the sign on the basis that it was prohibited under s. 38(2)(e) of the Public Transportation and Highway Improvement Act, R.S.O. 1990, c. P.50 (the "Act"). In general terms, s. 38(2)(e) prohibits signs (other than a single sign which meets the requirements of the section) from being placed within 400 metres of controlled-access highways, such as the 401, unless authorized by a permit issued by the Minister.
[7] Mr. Miracle refused to comply with the Minister's order.
[8] The Minister applied for a warrant authorizing officers to enter onto Mr. Miracle's property and remove the sign. Mr. Miracle opposed the application, alleging that s. 38(2)(e) of the Act infringed his right to freedom of expression as guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms [See Note 1 at the end of the document]. At [page164] trial, the Minister conceded that the impugned provision constituted a prima facie infringement of s. 2(b) of the Charter but argued that it was saved by s. 1 of the Charter.
[9] Justice Maranger found in favour of the Minister. He rejected the appellant's preliminary argument that because the provision gave the Minister an unfettered discretion to grant permits, it was not prescribed by law. He found that the goals of the impugned provision were to prevent aesthetic blight and promote traffic safety by reducing driver distraction. He held that both goals were rationally connected to s. 38(2)(e) and that s. 38(2)(e) attempted to strike a balance between these goals and the interests of commercial advertisers. Having concluded that the benefits of s. 38(2)(e) outweighed its detrimental effects, he held that the infringement of Mr. Miracle's s. 2(b) rights was reasonably and demonstrably justified under s. 1 of the Charter.
[10] For the reasons that follow, I agree with the application judge and would, therefore, dismiss the appeal.
The Issues
[11] The Ministry concedes on appeal, as it did below, that s. 38(2)(e) of the Act is a limit on freedom of expression and, therefore, a prima facie infringement of s. 2(b) [See Note 2 at the end of the document] of the Charter.
[12] Section 1 of the Charter guarantees freedom of expression, among other things"subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society".
[13] Thus, in order to determine whether s. 38(2)(e) is constitutionally valid, the following two issues must be decided:
(1) whether the limit on freedom of expression imposed by s. 38(2)(e) is prescribed by law; and
(2) if so, whether it is justified under s. 1 of the Charter. [page165]
Analysis
Issue #1: Is s. 38(2)(e) a limit prescribed by law?
[14] Section 38(2)(e) reads as follows:
38(2) Despite any general or special Act, regulation, by- law or other authority, no person shall, except under a permit therefor from the Minister,
(e) display any sign, notice or advertising device, whether it contains words or not, other than one sign not more than sixty centimetres by thirty centimetres in size displaying the name or the name and occupation of the owner of the premises to which it is affixed or the name of such premises within 400 metres of any limit of a controlled- access highway. . . .
[15] Mr. Miracle contends that the prohibition in s. 38(2)(e) coupled with the Minister's discretion to grant permits is not prescribed by law because the statute fails to provide any direction for the exercise of the Minister's discretion. He argues that the Minister's discretion is not subject to an "intelligible standard" and thus amounts to a "plenary discretion to do whatever seems best in a wide set of circumstances".
[16] I disagree.
[17] The Supreme Court of Canada has offered clear guidance on the meaning of "prescribed by law" for the purposes of a s. 1 analysis. In R. v. Therens, 1985 29 (SCC), [1985] 1 S.C.R. 613, [1985] S.C.J. No. 30, at para. 56, the court states:
The requirement that the limit be prescribed by law is chiefly concerned with the distinction between a limit imposed by law and one that is arbitrary. The limit will be prescribed by law within the meaning of s. 1 if it is expressly provided for by statute or regulation, or results by necessary implication from the terms of the statute or regulation or from its operation requirements. The limit may also result from the application of a common law rule.
(Emphasis added)
[18] The primary restriction on the appellant's freedom of expression arises from the express terms of s. 38(2)(e) which prohibit a person from displaying a sign that is larger than 60 centimetres by 30 centimetres in size within 400 metres of Highway 401. To that extent, the limit on Mr. Miracle's freedom of expression is expressly provided for by statute and therefore prescribed by law.
[19] The Minister has a discretion to relieve against the strictness of the limit established in s. 38(2)(e) by granting a permit. When considering this discretion in the context of the requirement that a limit must be prescribed by law, the words of the Supreme Court of Canada in [page166] Osborne v. Canada (Treasury Board), 1991 60 (SCC), [1991] 2 S.C.R. 69, [1991] S.C.J. No. 45, must be kept in mind. At paras. 51 and 52, Sopinka J., on behalf of a majority of the court, writes:
Vagueness can have constitutional significance in at least two ways in a s. 1 analysis. A law may be so uncertain as to be incapable of being interpreted so as to constitute any restraint on governmental power. The uncertainty may arise either from the generality of the discretion conferred on the donee of the power or from the use of language that is so obscure as to be incapable of interpretation with any degree of precision using the ordinary tools.
This Court has shown a reluctance to disentitle a law to s. 1 scrutiny on the basis of vagueness which results in the granting of wide discretionary powers. Much of the activity of government is carried out under the aegis of laws which of necessity leave a broad discretion to government officials. See R. v. Jones, 1986 32 (SCC), [1986] 2 S.C.R. 284, United States of America v. Cotroni, 1989 106 (SCC), [1989] 1 S.C.R. 1469, and R. v. Beare, 1988 126 (SCC), [1988] 2 S.C.R. 387. Since it may very well be reasonable in the circumstances to confer a wide discretion, it is preferable in the vast majority of cases to deal with vagueness in the context of a s. 1 analysis rather than disqualifying the law in limine. In this regard, I adopt the language of McLachlin J. in Canada (Human Rights Commission) v. Taylor, 1990 26 (SCC), [1990] 3 S.C.R. 892, at p. 956:
That is not to say that the alleged vagueness of the standard set by the provision is irrelevant to the s. 1 analysis. For reasons discussed below, I am of the opinion that the difficulty in ascribing a constant and universal meaning to the terms used is a factor to be taken into account in assessing whether the law is "demonstrably justified in a free and democratic society". But I would be reluctant to circumvent the entire balancing analysis of the s. 1 test by finding that the words used were so vague as not to constitute a "limit prescribed by law", unless the provision could truly be described as failing to offer an intelligible standard. This is not the case here.
(Emphasis added)
[20] While it is correct to say that the Act does not specify the basis upon which the Minister is to exercise his discretion, it is not correct to say that the Minister's discretion is unfettered. Any exercise of discretion by the Minister pursuant to s. 38(2)(e) is constrained by the common law principle that discretion may only be exercised in a manner consistent with the purposes and goals of its governing legislation. This limit on the exercise of governmental discretion has a long history in Canada beginning with Roncarelli v. Duplessis, 1959 50 (SCC), [1959] S.C.R. 121, 16 D.L.R. (2d) 689. At p. 140 S.C.R., p. 705 D.L.R., Rand J. expressed the common law principle in these terms:
In public regulation of this sort there is no such thing as absolute and untrammeled "discretion", that is that action can be taken on any ground or for any reason that can be suggested to the mind of the administrator; no legislative Act can, without express language, be taken to contemplate an [page167] unlimited arbitrary power, exercisable for any purpose, however capricious or irrelevant, regardless of the nature or purpose of the statute. Fraud and corruption in the Commission may not be mentioned in such statutes but they are always implied as exceptions. "Discretion" necessarily implies good faith in discharging public duty; there is always a perspective within which a statute is intended to operate; and any clear departure from its lines or objects is just as objectionable as fraud or corruption. Could an applicant be refused a permit because he had been born in another Province, or because of the colour of his hair? The ordinary language of the Legislature cannot be so distorted.
[21] In light of this common law principle, the exercise of discretion is subject to an intelligible standard -- an exercise of discretion other than in accordance with common law principles can and will be struck down.
[22] Thus, any exercise of discretion by the Minister pursuant to s. 38(2)(e) must be made in compliance with the twin objectives of promoting the safety of the travelling public and limiting aesthetic blight, objectives confirmed by this court in Re Multi-Malls Inc. v. Ontario (Minister of Transportation and Communications) (1977), 1976 623 (ON CA), 14 O.R. (2d) 49, 73 D.L.R. (3d) 18 (C.A.).
[23] The quote from Therens set out above begins by focusing attention on the reason behind the requirement that a limit be prescribed by law, namely, to distinguish between limits imposed by law and those that are arbitrary. Given the clarity of the prohibition in s. 38(2)(e) and the common law constraints on the exercise of discretion, in my view it cannot be said that the limit imposed by s. 38(2)(e) is arbitrary.
[24] Applying the principles in Therens and Osborne to s. 38(2)(e), I conclude that the limit on Mr. Miracle's freedom of expression is prescribed by law as a result of the combination of the express statutory language in s. 38(2)(e) and the application of the common law rules that govern the exercise of governmental discretion.
Issue #2: Is the limit justified under [s. 1](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)?
[25] The test for determining whether an infringement is justified under s. 1 of the Charter was enunciated by the Supreme Court of Canada in R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103, [1986] S.C.J. No. 7. As the party invoking s. 1, the government must satisfy two requirements. It must:
(1) demonstrate that the objective of the impugned legislative provision is pressing and substantial; and
(2) satisfy the proportionality test -- that is, show that the measures employed in the provision are reasonable and demonstrably justified. [page168]
[26] There are three components to the proportionality test. They are:
(i) the measures must be rationally connected to the legislative objective;
(ii) the measures must minimally impair the affected Charter right; and
(iii) there must be a proportionality between the effects of the limiting measure and the objectives.
[27] Before considering these requirements, it is useful to deal with Mr. Miracle's argument that no such consideration is necessary. Relying on the Supreme Court of Canada decision in R. v. Guignard, 2002 SCC 14, [2002] 1 S.C.R. 472, [2002] S.C.J. No. 16, 209 D.L.R. (4th) 549 and this court's decision in Vann Niagara Ltd. v. Oakville (Town) (2002), 2002 44984 (ON CA), 60 O.R. (3d) 1, [2002] O.J. No. 2323 214 D.L.R. (4th) 307 (C.A.), revd in part 2003 SCC 65, [2003] 3 S.C.R. 158, [2003] S.C.J. No. 71, the appellant contends that it is clear law that a legislative measure prohibiting a property owner from erecting signs that refer to a business located elsewhere is not capable of meeting the proportionality test. As a consequence of these "unequivocal" decisions, he says, s. 38(2)(e) cannot be justified under s. 1 of the Charter.
Guignard and Vann considered
[28] Guignard concerned a municipal by-law that prohibited the placement of "advertising signs" except in industrial zones. "Advertising signs" were defined as signs referring to a business, by name, located elsewhere than the property upon which the sign was located. All other signs were permissible.
[29] The plaintiff in Guignard had erected a sign on his own property. His property fell within an area in which advertising signs were prohibited. The sign contravened the by-law because it referred to a business located elsewhere. The content of the sign was a complaint about the conduct of that other business.
[30] The Supreme Court of Canada acknowledged in Guignard that preventing visual pollution and limiting driver distraction are pressing and substantial objectives. However, the court held that because the by-law prohibited only signs that expressly indicated the trade name of a commercial enterprise and permitted all others, the rational connection between the prohibition and the objective of preventing visual pollution had not been established. In addition, as the court noted, the prohibition was arbitrary in [page169] that it barred signs that contained the name of a business but permitted the same sign so long as no name was on the sign. Thus, had Mr. Guignard's sign merely stated "Don't trust insurance companies", the sign would have been permissible.
[31] In Vann, this court considered a municipal by-law that prohibited billboard signs of a certain size and all third- party signs on private land. Borins J.A., writing for the majority, held that the by-law was not rationally connected to the objectives of promoting road safety and preserving the town's unique small town character since the by-law prevented the erection of signs even in unremarkable industrial zones and there was no evidence to show that the prohibition promoted road safety.
[32] MacPherson J.A. agreed that the prohibition on third- party signs could not be justified under s. 1. However, he dissented in relation to the prohibition on billboards. He held that the billboard ban was justifiable under s. 1. In his view, a prohibition on certain types of signs was "entirely rationally connected" to the by-laws stated purposes. He referred to a number of cases of the Supreme Court of Canada and this court in which the municipal regulation of the display of signs, including size restrictions, has been upheld and held that the billboard prohibition part of the by-law was valid.
[33] An appeal to the Supreme Court of Canada was taken only in respect of that part of the by-law limiting the size of billboards. The court agreed with MacPherson J.A. and reversed the decision of the majority, saying that although the by-law limiting the size of signs infringed s. 2(b) of the Charter, it was saved under s. 1 as it minimally impaired freedom of expression.
[34] In my view, Guignard and Vann are both readily distinguishable from the case at bar with the consequence that neither dictates the outcome of this appeal.
[35] The by-law in Guignard was a blanket prohibition of the display of advertising signs anywhere in the municipality except industrial zones. The definition of advertising signs encompassed more than commercial signs -- indeed, the sign in issue in Guignard was an expression of opinion rather than commercial speech. But, as all other signs were permissible, the prohibition was not rationally connected to the objective of limiting visual pollution. The by-law was also found to be arbitrary as Mr. Guignard could have erected a sign with the same information on it save and except for the name of the insurance company.
[36] In contrast, s. 38(2)(e) is not arbitrary. All signs that exceed the specified dimensions are prohibited unless a permit from the Minister has been obtained. The prohibition is based not on the sign's content but on its location and the measures are [page170] rationally connected to the objectives of limiting visual pollution and controlling driver distraction.
[37] Moreover, s. 38(2)(e) is not a blanket prohibition. A sign may be erected anywhere outside of the zone of control, within the zone of control if authorized by permit or within the zone of control so long as it complies with the stipulated dimensions. As well, there are alternative means available to convey commercial messages to the travelling public on Highway 401. The appellant could use the province's Logo Sign system within the Highway 401 right-of-way, as he has done previously. The appellant's native crafts shop and jewellery shop may be eligible for Tourism-Oriented Directional Signs ("TODS") signing within the Highway 401 right-of-way and TODS trailblazing signs to the site of the shop. TODS are placed on Ontario's provincial highways and freeways. Eligible operators can apply for a sign bearing their operation's name, a generic symbol (or a corporate logo) and directional information.
[38] Finally, in Guignard, the breadth of the prohibition caught expression of opinion. That is not this case where the sign in issue is a business advertisement, not an expression of opinion.
[39] The by-law in Vann is also very different than s. 38(2) (e). In Vann, the prohibition on third party signs on private lands was absolute. Section 38(2)(e) is not an absolute prohibition. Signs of a certain size can be posted as can other signs under a Minister's permit. And, s. 38(2)(e) circumscribes the area in which signs can be posted -- it does not prohibit their erection on all third party lands.
[40] In my view, s. 38(2)(e) is more akin to that part of the Vann decision in which size limits on billboards were held to be an acceptable limit of freedom of expression.
[41] Having concluded that neither Guignard nor Vann dictates the outcome of this appeal, I return to the Oakes test.
1. Pressing and substantial objective
[42] Mr. Miracle concedes that the legislative objectives of preventing visual pollution and enhancing the safety of the travelling public are pressing and substantial.
2. The proportionality test
(i) Rational connection
[43] As explained in para. 70 of the Oakes decision, this component of the proportionality test is meant to ensure that the measures imposed are fair and not arbitrary; the measures must be carefully designed to achieve the objectives in question and must be rationally connected to those objectives. [page171]
[44] The application judge found that the measures contained in s. 38(2)(e) are rationally connected to both objectives.
[45] In relation to safety of the travelling public, the application judge held:
I can conclude on the evidence of Dr. Smiley . . . that commercial signs adjacent to highways are a safety concern and that the legislation in question acts to limit the location and number of signs and thus, limits the potential danger.
[46] He found that s. 38(2)(e) satisfied the rational connection test in respect of the objective of preventing aesthetic blight saying"the legislative measure operates to limit the proliferation of signs along the province's major highways."
[47] The appellant argues that it was an error to find that the measures in s. 38(2)(e) satisfy the rational connection requirement. He contends that the provision "operates in an arbitrary, irrational and unfair manner" and "has the effect of prohibiting signs such as Mr. Miracle's because of what they say, while permitting in the same place signs having equal or greater effect on the stated legislative objectives merely because they differ in content". In that way, the appellant argues, the provision operates just as the by-law did in Guignard.
[48] I do not accept the contention that the appellant's sign is prohibited because of its content. No matter what the content, the sign is prohibited unless it falls within the dimensions stipulated in s. 38(2)(e) or a permit is obtained. Also, unlike Guignard and as the application judge found, the measures in s. 38(2)(e) are rationally connected to both the objective of promoting the safety of the travelling public and limiting aesthetic blight. Indeed, it is hard to see how one could contend to the contrary. Prohibiting the unauthorized erection of signs and advertising devices within 400 metres of a controlled-access highway will necessarily prevent a proliferation of such signs and devices within the zone of control. And requiring individual property owners to seek a ministerial permit before displaying signs in the zone of control enables the Minister to regulate the proliferation of such signs.
[49] In my view, the jurisprudence makes it clear that there is a rational connection between the measures adopted in s. 38(2)(e) and both of its objectives. In a number of previous cases, as MacPherson J.A. points out in Vann, the Supreme Court of Canada and this court have found a rational connection between size restrictions on signs and the objectives of limiting visual distractions and promoting traffic safety. See Vann, supra, in respect of the billboard ban. See also [page172] Nichol (Township) v. McCarthy Signs Co. (1997), 1997 1680 (ON CA), 33 O.R. (3d) 771, [1997] O.J. No. 2053 (C.A.); Stoney Creek (City) v. Ad Vantage Signs Ltd. (1997), 1997 561 (ON CA), 34 O.R. (3d) 65, [1997] O.J. No. 2869 (C.A.); and Canadian Mobile Sign Assn. v. Burlington (City) (1997), 1997 4453 (ON CA), 34 O.R. (3d) 134, [1997] O.J. No. 2870 (C.A.).
(ii) Minimal impairment
[50] The application judge held that the impugned provision was analogous to the by-laws considered by this court in Nichol and Burlington in that it allows the Minister to regulate the manner and place of display of signs and advertising devices on private lands immediately adjacent to controlled-access highways.
[51] At paras. 34 and 35 of the reasons, the application judge reasoned as follows:
The restriction in this case is not an outright prohibition on all signs, there are exceptions i.e. logo signs, and certain signs of a specified size are permitted, furthermore, a billboard sign is allowed outside the 400 meter radius, and can be allowed within this zone with a permit from the Minister.
The factual background to the development of the sign policy and the degree of consultation involved in formulating the restrictions and the exceptions thereto, are similar to what the Court of Appeal found to exist in The Canadian Mobile Sign Association v. Burlington (City), supra, decision. I find that the province's law represents a rational attempt to strike a balance between the right of businesses to identify themselves and convey messages and the right of the public to maintain standards of aesthetics. In my opinion the Government in this particular type of case did all that could logically be expected to minimise the impairment of the particular freedom and have thus satisfied this element of the Oakes analysis.
[52] I agree and for the reasons given by the application judge.
[53] The appellant argues that the government put forward no evidence to show that there were no less intrusive means of achieving its stated objectives. He says that the only evidence before the application judge was that tendered by the appellant's own witnesses to the effect that the stated legislative objectives could readily be achieved through regulation rather than prohibition.
[54] On the evidence before him, it cannot be said that the application judge was palpably in error in making the factual findings that he did, regardless of whether that evidence came from the witnesses tendered by the appellant. In any event, there was evidence relating to the Minister's Commercial Signing Policy, a policy developed by the Minister to guide the exercise of his discretion and to promote fairness and consistency in decision-making. It was adopted only after three years of extensive consultation with the outdoor sign industry. It is designed to [page173] strike a balance between the commercial interests of businesses and the public interest in safety and limiting aesthetic blight. It was evidence that the application judge was entitled to consider when deciding whether the adopted measures minimally impaired freedom of expression. Also, as stated in Nichol, the Minister's discretion to grant a permit makes the prohibition "less impairing".
[55] And, with respect, the appellant's argument on this issue is based on a misapprehension of the government's burden.
[56] The Supreme Court of Canada has held that to show that an infringing measure is minimally impairing, it is not necessary to show that the legislature has adopted the least restrictive means of achieving the end. Rather, the impugned legislation will be justified if the means adopted fall within a range of reasonable solutions to the problems confronted. As was stated in R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, [2001] S.C.J. No. 3, at para. 96:
The law must be reasonably tailored to its objectives; it must impair the right no more than reasonably necessary, having regard to the practical difficulties and conflicting tensions that must be taken into account.
(Emphasis in original)
[57] In Vann, released after the decision of the application judge, the Supreme Court of Canada explicitly agreed with the reasoning of MacPherson J.A. In his analysis of minimal impairment, at paras. 57, 58 and 61, MacPherson J.A. states:
In several cases, the Supreme Court of Canada and this court have explicitly stated that municipal regulation of the display of signs and posters including, importantly, provisions relating to their size, is permitted and is consistent with the minimal impairment component of the Oakes analysis . . .
Moreover, once it is accepted that size restrictions on billboards are appropriate, it strikes me that that courts should be deferential about the actual line chosen by a municipality. Absent evidence of an improper purpose or of a thoroughly unreasonable or impractical line, courts should respect the municipality's choice.
I can state my conclusion on the minimal impairment issue in succinct fashion. The case authorities clearly establish that municipal regulation of the display of signs, including size restrictions, usually does not offend the minimal impairment component of the Oakes test.
[58] In my view and based on the findings of the application judge, the adopted measures are reasonable and within the range of measures that the province could rationally adopt. Like MacPherson J.A., I am of the view that in such circumstances, the court should afford the "line" chosen by the provincial government a large degree of deference. [page174]
(iii) Proportionality
[59] The application judge found that the benefits of limiting visual pollution and enhancing driver safety were sufficient to justify the limitations placed on Mr. Miracle's s. 2(b) freedom of expression. In my view, he was correct in that conclusion.
[60] The effect of s. 38(2)(e) is not to prevent all expression; rather, it requires that such expression take place 400 metres from the limit of controlled-access highways, meet certain size restrictions or be approved by the Minister. There is a proportionality between the effects of the carefully defined and restricted limit in s. 38(2)(e) and the objectives of limiting visual pollution and promoting safety along this province's major highways.
[61] In my view, the deleterious effects of the measures are clearly outweighed by the legislative objectives of limiting aesthetic blight and promoting traffic safety.
Disposition
[62] Accordingly, I would dismiss the appeal. I would make no order as to costs as, at the oral hearing of the appeal, the respondent abandoned its request for costs noting that the appeal deals with a matter of public interest.
Appeal dismissed.
Notes
Note 1: Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
Note 2: Section 2(b) provides:
Everyone has the following fundamental freedoms:
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;