Vann Media Group Inc. v. The Corporation of the Town of Oakville et al.

Vann Media Group Inc. v. The Corporation of the Town of Oakville et al. [Indexed as: Vann Media Group Inc. v. Oakville (Town)]

95 O.R. (3d) 252

Court of Appeal for Ontario,

R.P. Armstrong, Juriansz and Rouleau JJ.A.

November 10, 2008 *

• This judgment was recently brought to the attention of the editors.

Charter of Rights and Freedoms -- Freedom of expression -- Reasonable limits -- Applicant challenging constitutionality of municipal by-law restricting location of third-party advertising signs -- Application judge erring in quashing by- law in its entirety -- By-law infringing s. 2(b) of Charter but prohibition on third-party advertising signs in or near residential zones and provision requiring signs to have same setback from road allowances that apply to other buildings and structures justified under s. 1 of Charter -- Remaining restrictions eliminating all or most commercially viable locations for third-party signs outside of residential areas -- Those provisions not minimally impairing freedom of expression and not saved under s. 1 of Charter -- Application judge also erring in granting applicant remedy under s. 24(1) of Charter in form of order requiring respondent to grant permits for billboards applicant had applied to erect -- Individual remedy under s. 24(1) of Charter generally not appropriate in combination with declaration of constitutional invalidity and not justified in circumstances of this case -- Canadian Charter of Rights and Freedoms, ss. 1, 2(b).

The applicant challenged the constitutionality of a municipal by-law which placed restrictions on the location of third-party advertising signs. The application judge held that the by-law constituted a prima facie violation of s. 2(b) of the Canadian Charter of Rights and Freedoms and that it could not be saved under s. 1 of the Charter. He quashed the by-law in its entirety, subject to a six-month suspension, and ordered the respondent to grant permits to the applicant for certain billboards it had applied to erect in the respondent's heavy industrial zones. The respondent appealed.

Held, the appeal should be allowed in part.

The restrictions on the location of third-party signs in s. 39 of the by-law infringe s. 2(b) of the Charter.

While third-party advertising may be somewhat removed from the core of the s. 2(b) right, limitations on advertising signs can in some cases amount to a serious and unjustified infringement of a form of expression that has been commonly used for a long time and is closely connected to the values underlying the protection of freedom of expression. The primary justification for the impugned provisions is the preservation of the municipality's distinct visual and aesthetic character and the prevention of sign clutter. The measures in s. 39 of the by-law are rationally connected to the municipality's pressing and substantial objectives. The prohibition on signs within 200 metres of residential zones (s. 39(5)(a) of the by- law) and the provision requiring signs to have the same setback from road allowances that apply to other buildings and structures (s. 39(6) of the by-law) achieve an appropriate balance between the respondent's objectives of preserving [page253] the aesthetic character of the municipality and preventing clutter, and constitute a minimal intrusion on freedom of expression.

However, the respondent failed to show that the remaining parts of s. 39 minimally impair the s. 2(b) right. The combined effect of ss. 39(1), (3), (4) and (5)(b) is to eliminate most, if not all, commercially viable locations for third-party signs outside of the residential areas of the municipality. It was not established that restrictions which rule out virtually all commercially viable sign locations across a diverse range of areas and land uses are reasonably necessary to preserve the aesthetic character of the municipality. The availability of other forms of advertising, and in particular, third-party advertising in bus shelters, does not provide an adequate outlet for commercial expression so as to justify the impugned restrictions in the by-law. The respondent led no evidence to indicate that this type of advertising provides an equivalent outlet for commercial expression. The salutary effects of ss. 39(5)(a) and (6) outweigh the deleterious effects on freedom of expression and pass the requirement of proportionality. Sections 39(1), (3), (4) and (5)(b) should be quashed, subject to a six-month suspension.

The application judge erred in granting the applicant a remedy under s. 24(1) of the Charter in the form of an order requiring the respondent to erect billboards for which it had outstanding applications and that were located in E2 zones. In the absence of a finding of bad faith, abuse of power or clearly wrong conduct on the part of the government actor, it is generally not appropriate to combine a declaration of invalidity under s. 52(1) of the Constitution Act, 1982 with an individual remedy under s. 24(1) of the Charter. The order in this case was not warranted by the respondent's conduct and would unnecessarily complicate the respondent's task of drafting new restrictions that appropriately balance its concerns with the freedom of expression rights of members of the billboard sign industry.

APPEAL by the municipality from the order of Gray J. (2008), 2008 4268 (ON SC), 89 O.R. (3d) 385, [2008] O.J. No. 457 (S.C.J.) quashing the by- law and granting individual remedy under s. 24(1) of the Charter.

Cases referred to R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103, [1986] S.C.J. No. 7, 26 D.L.R. (4th) 200, 65 N.R. 87, 14 O.A.C. 335, 24 C.C.C. (3d) 321, 50 C.R. (3d) 1, 19 C.R.R. 308, 16 W.C.B. 73, apld Other cases referred to 114957 Canada Ltée (Spraytech, Société d'arrosage) v. Hudson (Town), [2001] 2 S.C.R. 241, [2001] S.C.J. No. 42, 2001 SCC 40, 200 D.L.R. (4th) 419, 271 N.R. 201, J.E. 2001-1306, 40 C.E.L.R. (N.S.) 1, 19 M.P.L.R. (3d) 1, 106 A.C.W.S. (3d) 270; Canada (Attorney General) v. Hislop, [2007] 1 S.C.R. 429, [2007] S.C.J. No. 10, 2007 SCC 10, 278 D.L.R. (4th) 385, 358 N.R. 197, J.E. 2007-477, 222 O.A.C. 324, 153 C.R.R. (2d) 173, 37 R.F.L. (6th) 1, 154 A.C.W.S. (3d) 362, EYB 2007-115536; Dagenais v. Canadian Broadcasting Corp., 1994 39 (SCC), [1994] 3 S.C.R. 835, [1994] S.C.J. No. 104, 120 D.L.R. (4th) 12, 175 N.R. 1, J.E. 95-30, 76 O.A.C. 81, 94 C.C.C. (3d) 289, 34 C.R. (4th) 269, 25 C.R.R. (2d) 1, 51 A.C.W.S. (3d) 1045, 25 W.C.B. (2d) 304; Nanaimo (City) v. Rascal Trucking Ltd., [2000] 1 S.C.R. 342, [2000] S.C.J. No. 14, 2000 SCC 13, 183 D.L.R. (4th) 1, 251 N.R. 42, [2000] 6 W.W.R. 403, J.E. 2000-522, 132 B.C.A.C. 298, 76 B.C.L.R. (3d) 201, 20 Admin. L.R. (3d) 1, 9 M.P.L.R. (3d) 1, 95 A.C.W.S. (3d) 372; R. v. Big M Drug Mart Ltd., 1985 69 (SCC), [1985] 1 S.C.R. 295, [1985] S.C.J. No. 17, 18 D.L.R. (4th) 321, 58 N.R. 81, [1985] 3 W.W.R. 481, 37 Alta. L.R. (2d) 97, 60 A.R. 161, 18 C.C.C. (3d) 385, 85 CLLC Â14,023 at 12108, 13 C.R.R. 64, 14 W.C.B. 157; R. v. Guignard, [2002] 1 S.C.R. 472, [2002] S.C.J. No. 16, 2002 SCC 14, 209 D.L.R. (4th) 549, 282 N.R. 365, J.E. 2002-417, 49 C.R. (5th) 95, 92 C.R.R. (2d) 63, 27 M.P.L.R. (3d) 1, 111 A.C.W.S. (3d) 720; R. v. Sharpe, [2001] 1 S.C.R. 45, [2001] S.C.J. No. 3, 2001 SCC 2, 194 D.L.R. (4th) 1, 264 N.R. 201, [2001] 6 W.W.R. 1, J.E. 2001-294, 146 B.C.A.C. 161, 88 B.C.L.R. (3d) 1, 150 C.C.C. (3d) 321, 39 C.R. (5th) 72, 86 C.R.R. (2d) 1, 48 W.C.B. (2d) 287; [page254] RJR-MacDonald Inc. v. Canada (Attorney General), 1995 64 (SCC), [1995] 3 S.C.R. 199, [1995] S.C.J. No. 68, 127 D.L.R. (4th) 1, 187 N.R. 1, J.E. 95-1766, 100 C.C.C. (3d) 449, 62 C.P.R. (3d) 417, 31 C.R.R. (2d) 189, 57 A.C.W.S. (3d) 578, 28 W.C.B. (2d) 216; Thomson Newspapers Co. (c.o.b. Globe and Mail) v. Canada (Attorney General) (1998), 1998 829 (SCC), 38 O.R. (3d) 735, [1998] 1 S.C.R. 877, [1998] S.C.J. No. 44, 159 D.L.R. (4th) 385, 226 N.R. 1, J.E. 98-1224, 109 O.A.C. 201, 51 C.R.R. (2d) 189, 79 A.C.W.S. (3d) 921; Vann Niagara Ltd. v. Oakville (Town), [2003] 3 S.C.R. 158, [2003] S.C.J. No. 71, 2003 SCC 65, 234 D.L.R. (4th) 118, 316 N.R. 201, J.E. 2004-782, 184 O.A.C. 279, 43 M.P.L.R. (3d) 1, 128 A.C.W.S. (3d) 271, revg (2002), 2002 44984 (ON CA), 60 O.R. (3d) 1, [2002] O.J. No. 2323, 214 D.L.R. (4th) 307, 161 O.A.C. 183, 94 C.R.R. (2d) 255, 43 M.P.L.R. (3d) 9, 115 A.C.W.S. (3d) 604 (C.A.) Statutes referred to Canadian Charter of Rights and Freedoms, ss. 1, 2(b), 24(1)

Barnet H. Kussner and Kim Mullin, for appellants. John A. Crossingham, for respondent.

The judgment of the court was delivered by

ROULEAU J.A.: --

Overview

[1] In 2002, this court quashed a by-law enacted by the Town of Oakville prohibiting the erection of third-party signs (signs that direct attention to products, goods or services not located on the same premises as the signs) on the basis that the prohibition violated s. 2(b) of the Canadian Charter of Rights and Freedoms and could not be saved under s. 1. While recognizing the Town's legitimate objectives for enacting the by-law, the court found that Oakville had several "unremarkable industrial zones" such that a total prohibition on third-party signs could not be reasonably and demonstrably justified under s. 1 of the Charter.

[2] The Town subsequently adopted a new by-law that allowed third-party billboards but imposed restrictions as to where billboard signs could be erected. The respondent successfully challenged the constitutionality of this new by-law in the court below. The application judge found that the restrictions imposed by the by-law amounted to an effective prohibition on billboards which could not be justified under s. 1. He quashed the by-law in its entirety, subject to a suspension of the quashing for six months. In addition, he ordered the Town to grant permits to the [page255] respondent for certain billboards it had applied to erect in the Town's heavy industrial zones. The order permitted the billboards to be erected without having to comply with the provisions of the by- law.

[3] The Town appeals both the finding that the by-law cannot be saved under s. 1 of the Charter as well as the remedy granted by the application judge. For the reasons that follow, I would allow the appeal as to remedy and on the s. 1 issue in part. I would substitute the judgment below with an order quashing s. 39(1), (3), (4) and (5)(b) of By-law 2006-005, subject to a suspension of that order for a period of six months.

Procedural Background

[4] In 1994, the Town of Oakville enacted a sign by-law that prohibited all billboard signs larger than 80 square feet as well as the erection of third-party signs.

[5] In the year 2000, Vann Niagara Ltd., a predecessor corporation of the respondent, filed applications with respect to 52 locations (86 signs) for the erection of billboards. These were denied.

[6] The respondent challenged the constitutionality of the by-law. In 2002, a majority of this court declared that both the size restriction provision and the third-party sign provision violated the right to freedom of expression under s. 2(b) of the Charter and could not be saved under s. 1: Vann Niagara Ltd. v. Oakville (Town) (2002), 2002 44984 (ON CA), 60 O.R. (3d) 1, [2002] O.J. No. 2323 (C.A.) ("Vann No. 1").

[7] Borins J.A., with whom Feldman J.A. concurred, held that the entire by-law could not be saved under s. 1. The Town failed to demonstrate that the prohibitions on signs over 80 square feet as well as third-party signs were rationally connected to the Town's stated objectives. In particular, there were several "unremarkable industrial zones" in Oakville and the prohibition on third-party signs was not rationally connected to the legitimate objective of preserving the aesthetic character of the Town. Moreover, he held that the by- law, as a total prohibition on a form of expression, did not minimally impair the s. 2(b) right.

[8] MacPherson J.A. dissented, but only with respect to the size restriction provision. In his view, although this provision violated s. 2(b) of the Charter, it was reasonably and demonstrably justified pursuant to s. 1. Based on his interpretation of the by-law, the size restriction and third- party ban provisions were separate and unrelated. In his view, once it was accepted that some form of size restriction was appropriate, courts should be deferential about the actual line chosen by municipalities. [page256]

[9] The Town sought leave to appeal to the Supreme Court of Canada on the size restriction issue only. The Supreme Court of Canada allowed the appeal and adopted the reasons of MacPherson J.A.: Vann Niagara Ltd. v. Oakville (Town), 2003 SCC 65, [2003] 3 S.C.R. 158, [2003] S.C.J. No. 71.

Facts

[10] Following the Supreme Court of Canada's decision, the Town of Oakville undertook a review process in order to prepare a new sign by-law. The Town organized a working group to study the matter and make recommendations to Town Council.

[11] One of the key issues for the working group was determining the appropriate locations for third-party signs. One of the group's guiding principles was to limit additional structures in the streetscape. At the time of the review process, only one third-party sign existed in Oakville. It was protected by a grandfathering provision. The virtual absence of third-party signs was considered to be important to the Town as it contributed to the distinct visual character and aesthetic of Oakville.

[12] The Town engaged in a public consultation process and invited submissions from the sign industry. As part of the consultation process, a consultation paper was prepared. The paper presented various objectives to guide the location of signs having regard to the Town's existing character. These objectives included the following: (a) additional structures in the streetscape should be minimized; (b) advertising signs should not be located in residential areas and should be located at a sufficient distance away from residential areas so that they are not visible from residential areas or do not impact on their character; and (c) advertising signs should not be located at the major entry points to the Town or within areas that act as gateways to the Town.

[13] The Town clerk wrote to the respondent directly to ensure that it had notice of public meetings being held by the working group and a copy of the consultation paper. The respondent did not participate in the meetings. Its president wrote back to the Town, saying, in effect, that it should be allowed to erect signs in the 52 "non-descript" locations for which it had made applications back in 2000.

[14] After the consultation process, the working group's final report and a draft by-law were submitted to Town Council. The [page257] report recommended that advertising signs should be specifically defined and should be permitted only on vacant lots with no other signs on the lot; only in E2 employment zones south of Dundas Street; and subject to a number of specific setback restrictions and other regulatory requirements.

[15] By-law 2005-036 implementing these recommendations was passed by the Town Council on March 8, 2005. This by-law was replaced by the current sign by-law, By-law 2006-005, A by-law to prohibit and regulate signs and other advertising services within the Town of Oakville, which is the same in all relevant aspects. Section 1 of the by-law defines an "advertising sign" as a "sign which is owned and maintained by a person engaged in the rental or leasing of the sign face area for advertising goods services or facilities". Section 39 places restrictions on the location of advertising signs:

39. No person shall erect, locate or display an advertising sign: (1) if any other sign is also erected, located, or displayed on the property, other than a temporary real estate sign with a sign area of no greater than 4.65 m2 (50 sq. ft.) and a maximum height of 3.6 metres (11.8 ft) or an election sign; (2) on any property North of Dundas Street; (3) on property other than property within an E2 Zone under the Zoning By-law; (4) if there is any building on the property, or a building permit has been issued for a building on the property; (5) within 200 metres of any of the following: (a) any property within a residential zone or legally used for residential purposes; (b) the road allowance of any of the following streets: Burloak Drive, Bronte Road (Regional Road 25), Third Line, Fourth Line, Nottinghill Gate, Dorval Drive, Kerr Street, Trafalgar Road, Ford Drive, and Winston Churchill Boulevard; or (c) the QEW and Highway 403 corridors; and (6) any closer to the edge of the road allowance than the set back required for buildings and structures other than signs on the property under the provisions of the Zoning By-law.

[16] The respondent's challenge to the by-law relates to the 52 locations for which it sought permits back in 2000. The locations are in what the respondent calls the "employment lands" zones of Oakville, which include a mixture of commercial and industrial land uses. While some of the 52 locations are within the E2 zone, where the by-law permits the placement of such signs, none of the applications meet the other conditions in s. 39. [page258]

The Decision of the Application Judge

[17] The respondent's challenge to the new by-law focused on s. 39(1), (3), (4), (5)(a), (5)(b) and (6). No issue was taken with s. 39(2) or (5)(c). The respondent argued that in all of Oakville, there existed only nine locations where signs could be erected in compliance with the by-law and none of these was a site on which the respondent had proposed to erect a sign. Further, of the nine available locations, only one or two at most had sufficient visibility and traffic to be commercially viable.

[18] The application judge held that the by-law constituted a prima facie violation of s. 2(b). He then moved on to consider whether the by-law could be saved under s. 1 of the Charter.

[19] The application judge held that whether or not it was the Town's intent, the result of the by-law was to effectively ban billboard advertising in Oakville. While the application judge referred to a general ban on all billboard advertising, given the definition of an "advertising sign" above, he may be taken to have been referring to third-party signs.

[20] In the view of the application judge, as a result of the by-law, billboards were restricted to pockets within the municipality that were tiny in comparison to the total area within its borders. Almost all of the commercial and industrial areas within the municipality were eliminated from consideration.

[21] The application judge held that the fact that the Town had engaged in a consultation process could not assist it in light of the fact that this court had already held that a ban on billboard advertising in Oakville was constitutionally impermissible in Vann No. 1.

[22] The application judge noted that in Vann No. 1, although this court did not undertake an analysis of the different zones in Oakville, it did describe the various industrial areas in the Town as "unremarkable". The application judge noted at the outset of his reasons that the Town in this case had offered no particular rationale for confining billboards to the E2 Zones, as opposed to any of the other unremarkable areas in Oakville.

[23] In the end, the application judge found that the Town had failed to show that the means chosen to achieve the admittedly valid objectives of the sign by-law were rationally connected to the Town's objectives or that they minimally impaired the right to freedom of expression.

[24] The application judge quashed the sign by-law in its entirety, subject to a suspension of the quashing for six months. Notwithstanding that suspension, the application judge also ordered the Town to grant permits to the respondent to erect [page259] billboards of 80 square feet or less at each of the locations for which it had made an application within the E2 zone. The application judge understood that there were 11 such locations. Subsequent to the decision, the parties determined that there were 21.

Issues

[25] On this appeal, the Town acknowledges that the by-law constitutes an infringement on the right to freedom of expression under s. 2(b) of the Charter. Accordingly, the principal issues are: (1) whether the infringement constitutes a reasonable limit that can be demonstrably justified pursuant to s. 1 of the Charter; and (2) whether the application judge erred in quashing the by-law in its entirety or in ordering the Town to grant permits to the respondent for the billboards it applied to erect in the E2 zones.

Section 1 Analysis

[26] In order to establish that a violation of a Charter right is reasonably and demonstrably justified under s. 1, the governmental authority must satisfy the court: first, that the objective of the impugned provisions addresses pressing and substantial concerns; and second, that the provisions are proportional to the objective: R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103, [1986] S.C.J. No. 7.

[27] While the Town alluded to various objectives, including driver safety, in support of the by-law, it is clear that the primary justification for the impugned provisions is the preservation of Oakville's distinct visual and aesthetic character and the prevention of sign clutter. These are the objectives which motivated the working group's recommendations and the bases upon which the Town seeks to justify the prima facie infringement of s. 2(b). As the respondent does not dispute that these objectives are pressing and substantial, it is only the second criterion in Oakes that is in issue on this appeal.

[28] As the Supreme Court established in Oakes, the proportionality test has three components: (1) the measures adopted must be rationally connected to the objectives; (2) the measures chosen must constitute a minimal impairment on the right; [and] (3) there must be proportionality between the effects and the objectives.

[29] Before analyzing whether the by-law meets these branches of the Oakes test, it is useful to review the Town's [page260] submissions on the need for a contextual approach to the s. 1 analysis. The Town relies on the comments of Bastarache J. in Thomson Newspapers Co. (c.o.b. Globe and Mail) v. Canada (Attorney General) (1998), 1998 829 (SCC), 38 O.R. (3d) 735, [1998] 1 S.C.R. 877, [1998] S.C.J. No. 44, at p. 939 S.C.R.:

The analysis under s. 1 of the Charter must be undertaken with a close attention to context. . . . [T]he proportionality of the means used to fulfill the pressing and substantial objective can only be evaluated through a close attention to detail and factual setting. In essence, context is the indispensable handmaiden to the proper characterization of the objective of the impugned provision, to determining whether that objective is justified, and to weighing whether the means used are sufficiently closely related to the valid objective so as to justify an infringement of a Charter right.

[30] The Town submits that the application judge failed to take into account two contextual factors which militate in favour of a deferential approach to the s. 1 analysis. First, it argues that deference is owed in this case since the messages sought to be conveyed by the respondent are commercial and fall outside the core of protected expression and the values underlying s. 2(b). The Town further contends that the importance of third-party billboard advertising as a form of commercial expression is attenuated by the availability of other forms of advertising, including third-party advertising in various bus shelters erected throughout Oakville.

[31] Second, the Town relies on 11497 Canada Ltée (Spraytech, Société d'arrosage) v. Hudson (Town), 2001 SCC 40, [2001] 2 S.C.R. 241, [2001] S.C.J. No. 42, at para. 23, for the proposition that courts ought to pay deference to the decisions of elected municipal representatives. The Town argues that the sign by-law falls squarely within its policy discretion and that this court should not second-guess its determination that the restrictions on the locations of billboard signs contained in s. 39 are reasonably necessary and appropriate means of achieving its objectives.

(i) Core of expression

[32] I recognize that third-party billboard advertising is somewhat removed from the core of the s. 2(b) right. Third- party billboards, by definition, do not involve the property owner's own right of expression. Other than the limited instances where the respondent is using the billboard to advertise its own services, the respondent in this case is acting as an intermediary between the owner of the property where the sign is erected and the entity purchasing the advertising space.

[33] Contrary to the submissions made by the appellant, however, I view third-party billboards as allowing for more than [page261] purely commercial speech. Billboards are, in a limited sense, similar to books, newspapers and radio or television in that they provide a medium through which messages are conveyed. Although the dominant use of billboards is to convey commercial messages, they are, on occasion, used to convey political, personal, charitable and many other types of messages.

[34] In Vann No. 1, Borins J.A. stated, at para. 18, in reference to the reasons of LeBel J. in R. v. Guignard, 2002 SCC 14, [2002] 1 S.C.R. 472, [2002] S.C.J. No. 16:

LeBel J. also observed that the right to freedom of expression protects even expression that is challenging and disturbing, and acknowledged at para. 23 that "the ubiquitous presence of advertising is a defining characteristic of western societies" that we accept "sometimes with mixed feelings". He went on to say at para. 25:

[s]igns, which have been used for centuries to communicate political, artistic or economic information, sometimes convey forceful messages. Signs, in various forms, are thus a public, accessible and effective form of expressive activity for anyone who cannot undertake media campaigns.

Vann argues that its clientele are not likely to advertise using media such as television and radio because of the cost and targeted and limited audience exposure. Consequently, they fall squarely within the group identified by LeBel J.

[35] In short, while third-party advertising may not lie as close to the core of s. 2(b) as, say, political speech, it is clear that limitations on advertising signs can in some cases amount to a "serious and unjustified infringement of a form of expression that has been commonly used for a long time and is closely connected to the values underlying the protection of freedom of expression" (emphasis added): Guignard, at para. 31. Though the court in Guignard was dealing with a sign erected by the owner of his own property, these comments are relevant to third-party billboard advertising as well.

(ii) Deference to Town Council

[36] I recognize that in the appropriate context, courts should pay deference to the decisions of elected representatives such as municipal councils. As the Supreme Court held in Nanaimo (City) v. Rascal Trucking Ltd., 2000 SCC 13, [2000] 1 S.C.R. 342, [2000] S.C.J. No. 14, at para. 35:

Municipal councillors are elected by the constituents they represent and as such are more conversant with the exigencies of their community than are the courts. . . . The reality that municipalities often balance complex and divergent interests in arriving at decisions in the public interest is of similar importance. [page262]

[37] On the other hand, it is important to note that according a level of deference appropriate to the context does not relieve governmental bodies of their burden of demonstrating, "through evidence supplemented by common sense and inferential reasoning, that the law meets the test set out in R. v. Oakes . . . , and refined in Dagenais v. Canadian Broadcasting Corp., 1994 39 (SCC), [1994] 3 S.C.R. 835, and Thomson Newspapers Co. v. Canada (Attorney General), 1998 829 (SCC), [1998] 1 S.C.R. 877": R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, [2001] S.C.J. No. 3, at para. 78.

[38] McLachlin J.'s comments on the approach to s. 1 justification in RJR-MacDonald Inc. v. Canada (Attorney General), 1995 64 (SCC), [1995] 3 S.C.R. 199, [1995] S.C.J. No. 68, at para. 129, are apposite:

The bottom line is this. While remaining sensitive to the social and political context of the impugned law and allowing for difficulties of proof inherent in that context, the courts must nevertheless insist that before the state can override constitutional rights, there be a reasoned demonstration of the good which the law may achieve in relation to the seriousness of the infringement. It is the task of the courts to maintain this bottom line if the rights conferred by our constitution are to have force and meaning.... No matter how important [the] goal may seem, if the state has not demonstrated that the means by which it seeks to achieve its goal are reasonable and proportionate to the infringement of rights, then the law must perforce fail.

[39] With this background in mind, I now turn to the Oakes test.

(1) Rational connection

[40] The Town submits that the provisions restricting the location of signs bear a rational connection to the objectives of the sign by-law. It argues that visibility, proximity and compatibility with land uses are among the key indicia for the visual impacts associated with signage, including aesthetics and the avoidance of visual clutter. Further, it contends that limitations such as setback requirements, vacant lot requirements and restrictions to particular zones are rational and practical means of achieving these objectives.

[41] I accept the Town's submission on this point and agree that the measures in s. 39 of the by-law are rationally connected to the pressing and substantial objectives of the Town.

(2) Minimal impairment

[42] In order to establish that legislative action minimally impairs a Charter right, it is not necessary to show that the "least restrictive means" have been enacted. It is sufficient if the "means adopted fall within a range of reasonable solutions to the problem confronted". The law must be "reasonably tailored to its [page263] objectives" or "impair the right no more than reasonably necessary". The minimal impairment inquiry should be "nuanced" and take "into account the difficulty of drafting laws that accomplish [the legislator's] goals, achieve certainty and only minimally intrude on rights". The requirement of minimal impairment is a crucial stage in the overall s. 1 analysis, which "[a]t its heart . . . is a matter of balancing": Sharpe, at paras. 96-97.

[43] Some of the impugned sections of the by-law clearly achieve an appropriate balance between the Town's objectives of preserving the aesthetic character of Oakville and preventing visual clutter and constitute a minimal intrusion on the right to freedom of expression. In that category, I would place the prohibition on signs within 200 metres of residential zones (s. 39(5)(a)) and the provision requiring signs to have the same setback from road allowances that apply to other buildings and structures (s. 39(6)). The interest in preserving the aesthetic of the Town is particularly compelling in respect of residential areas and the setback requirement allows the Town to achieve a uniform streetscape. On this record, I am not satisfied that these provisions could have been more narrowly tailored to achieve the Town's objectives.

[44] In my view, however, the Town has failed to show that the remaining provisions challenged by the respondent minimally impair the s. 2(b) right. While the Town argues that all of the impugned provisions of the by-law reflect an appropriate balance between its pressing and substantial objectives and the right to freedom of expression, the record does not reflect an informed attempt by the Town to strike such a balance. The Town does not appear to have recognized the cumulative impact of the remaining provisions and the extent of the resulting intrusion on the right to freedom of expression. Nor, as discussed below, does it appear to have considered tailoring the restrictions to reduce the intrusion in a manner that would still accomplish its goals. In these circumstances, little deference can be given to the balance struck by the Town.

[45] Section 39(1) prohibits signs on properties containing any other sign and carves out some limited exceptions. Section 39(4) limits third-party signs to vacant properties. As the respondent points out, these provisions severely limit the ability to erect third-party signs in a relatively urban community such as Oakville. Section 39(3) prohibits signs in areas other than heavy industrial E2 zones. While the E2 zones cover a fairly large area within the Town, it is not disputed that there are other industrial areas in Oakville outside of the E2 zones. Section 39(5)(b) prohibits signs within 200 metres of the road allowance for all of [page264] the major north-south streets in the Town and thereby imposes additional limits on prospective signs, even in unremarkable industrial areas.

[46] It is evident from a cursory review of the map and the respondent's evidence that the combined effect of ss. 39(1), (3), (4) and (5)(b) is to eliminate most, if not all, commercially viable locations for third-party signs outside of the residential areas in Oakville. Indeed, the evidence established that, in the whole of the Town of Oakville, only nine locations complied with the array of limits set out in the by-law. The respondent's expert testified that only one, or at most two, of these sites were commercially viable. From a cursory review of the map where the nine locations are shown, it is apparent, even to a lay observer, why a number of the sites are not commercially viable. To be useful, signs need to be seen. Several allowed locations are in relatively isolated parts of industrial areas of the Town where one would expect very little traffic.

[47] The Town does not dispute the fact that the by-law's provisions limit the number of commercially viable locations. Rather, it essentially advances two arguments. First, the Town argues that the reason the respondent's proposed locations are not commercially viable is because of the constitutionally valid provision restricting the size of billboard signs to 80 square feet. Thus, in the Town's view, the imposition of the size restriction, which was held by the Supreme Court to be constitutionally valid on appeal from Vann No. 1, should not then force it to overcompensate in other respects so as to ensure that the industry standards of commercially viable visibility be met.

[48] I would not give effect to this submission. The Town has led no evidence to demonstrate that this is the case. Even if one were to accept that one or two additional locations would become viable if larger signs were permitted, this would not, in my view, sufficiently alter the impact of the above restrictions in s. 39 on the right to freedom of expression.

[49] Second, the Town argues that s. 2(b) of the Charter does not require it to allow some minimum number of commercially viable third-party signs in Oakville. To the contrary, this court's decision in Vann No. 1 left it to the Town, as a matter of legislative policy, to enact a set of restrictions governing the locations for third-party signs. While this is true as far as it goes, s. 2(b) does require the Town to show that the restrictions, as enacted, minimally impair the right.

[50] It may be that, on a more fulsome record, the Town could have demonstrated that s. 39(1), (3), (4) and (5)(b) adequately balance the Town's aesthetic objectives with the right to freedom [page265] of expression. In my view, however, the Town has failed to demonstrate that this is the case. Simply put, it is not clear why restrictions which rule out virtually all commercially viable sign locations across a diverse range of areas and land uses are reasonably necessary to preserve the aesthetic character of the Town. Many of the locations eliminated by the aforementioned provisions are in industrial areas where the aesthetic objective is not compelling.

[51] As the application judge found, it is especially significant that the areas described by this court in Vann No. 1 as "unremarkable industrial zones" are not limited to the E2 zones. The Town has offered no evidence justifying the limitation in s. 39(3) to these areas as opposed to other unremarkable areas in Oakville. Moreover, while the Town argued in submissions that it should be permitted to prohibit signs in "prestige industrial" areas, it failed to point to evidence demonstrating that all of the industrial zones outside of the E2 zones are prestige industrial areas.

[52] Moreover, I would not give effect to the Town's suggestion that the availability of other forms of advertising, and in particular, third-party advertising in bus shelters, has provided an adequate outlet for commercial expression so as to justify the aforementioned restrictions in the by-law. The Town has led no evidence to indicate that this type of advertising provides an equivalent outlet for commercial expression. Nor has it shown that by allowing bus shelter advertising and enacting restrictions that effectively prohibit viable third- party sign locations in areas described by this court as "unremarkable industrial zones", it minimally intruded on the s. 2(b) right.

[53] While it is not this court's function to re-legislate the Town's by-laws, a consideration of conceivably less intrusive means to achieve the Town's objectives serves two functions. It both illustrates the Town's failure to demonstrate that the aforementioned provisions, as enacted, minimally impair the s. 2(b) right and provides some limited guidance to the Town for drafting future by-laws. By way of example, it may be that -- section 39(1) could be adjusted to allow for more than one sign per property where the property has a very large frontage; -- section 39(3) could be adjusted to allow third-party signs in "non-prestige" industrial zones located outside of the E2 zones; -- section 39(4) could be adjusted to allow third-party signs on very large properties where there is a large portion consisting of open space; [and] [page266] -- section 39(5)(b) could be adjusted to allow for signs near some of the listed north-south roads or portions of the listed roads.

[54] I need not make any finding in this regard. Nor should these observations be taken to mean that the by-law, as a whole, must allow a minimum number of third-party signs. It is sufficient to say that on this record, the Town has failed to show that, taken together, s. 39(1), (3), (4) and (5)(b) minimally impair the s. 2(b) right.

[55] In reaching this conclusion, I do not wish to be taken to have ignored the significance of the Town's public consultation process. In my view, the fact that the Town engaged in this process and the respondent refused to participate in it is significant. Consultative processes provide guidance to municipal bodies on how to craft by-laws that balance the wishes of the various interests in the community. It is this balancing function that entitles choices made by legislative bodies such as the Town Council to considerable deference. It may well be that, had the respondent participated in the consultation, it could have ensured that the Town was made aware of its concerns respecting the effect the by-law would have on commercially viable third-party sign locations. The respondent may also have been able to suggest ways to minimize these effects without compromising the Town's objectives. Given the severity of the impact of s. 39(1), (3), (4) and (5)(b) and the Town's failure to justify its choice of means, however, I do not think that the respondent's failure to participate, regrettable as it is, should disentitle it to Charter relief.

(3) Proportionality

[56] In my view, the salutary effects of s. 39(5)(a) and (6) outweigh the deleterious effects on freedom of expression and these provisions pass the requirement of proportionality: Dagenais v. Canadian Broadcasting Corp., 1994 39 (SCC), [1994] 3 S.C.R. 835, [1994] S.C.J. No. 104. With respect to s. 39(5)(a), there are other outlets for commercial expression in Oakville outside of residential zones and the aesthetic benefit to the Town of prohibiting third-party signs in residential areas is clear. Similarly, in my view, s. 39(6) does not significantly curtail the ability to erect third-party signs and the benefit of preserving a uniform streetscape to the Town is obvious.

[57] In light of my conclusion that s. 39(1), (3), (4) and (5)(b) do not minimally impair the s. 2(b) right, it is not necessary to determine whether these provisions meet the third stage of the Oakes test. [page267]

Remedy

(1) Quashing entire by-law

[58] The application judge struck the whole by-law because he found that he did not "think the court should be asked to edit a by-law that it had found to be constitutionally defective". The Town submits, however, that the respondent's challenge to the by-law was directed only to some of the restrictions set out in s. 39. No issue was taken with any of the other provisions of the by-law which regulate a wide variety of signs in the Town and establish a permit regime for signs.

[59] In my view, the relief should not be any broader than necessary to ensure that the respondent's s. 2(b) rights are protected. Only a few sections of the by-law were challenged and only those that were found to infringe the right should be struck. I would therefore quash s. 39(1), (3), (4) and (5)(b) subject to a suspension order for a period of six months.

(2) Section 24(1)

[60] The application judge granted a remedy pursuant to s. 24(1) of the Charter. He ordered the Town to permit the respondent to erect billboards for which it had outstanding applications and that were located in the E2 zones. These permits were to be issued regardless of whether the other restrictions in the by-law were met. The application judge justified granting this additional relief on the ground that this was the respondent's second successful challenge to the Town's sign by-law and that the respondent was entitled to meaningful relief rather than having to wait, once again, for the Town to craft a new sign by-law. In my view, this approach was in error.

[61] The general rule is that where legislation is inconsistent with the Charter, the court will make a declaration of invalidity pursuant to s. 52(1) and, where appropriate, will suspend the coming into effect of the order for a given period. The court will not normally grant an additional remedy in favour of an individual litigant pursuant to s. 24(1): R. v. Big M Drug Mart Ltd., 1985 69 (SCC), [1985] 1 S.C.R. 295, [1985] S.C.J. No. 17.

[62] In Canada (Attorney General) v. Hislop, 2007 SCC 10, [2007] 1 S.C.R. 429, [2007] S.C.J. No. 10 the Supreme Court of Canada held that where there is no finding of bad faith, abuse of power or clearly wrong conduct on the part of the legislature, it is generally not appropriate to combine a s. 52(1) remedy with a s. 24(1) remedy. At para. 92, the court explained that [page268]

[t]he purpose of a suspended declaration of invalidity can be to facilitate the legislature's function in crafting a prospective remedy. The temporal delay in striking down the law also has the effect of extending the life of an unconstitutional law. In such cases, to allow the claimants to recover concurrent retroactive relief would be at cross- purposes with the Court's decision to grant a suspended declaration of invalidity. . . .

[63] As noted by the application judge, the present case is unusual in that this is the respondent's second successful challenge to the Town's sign by-law. The prior by-law, however, was somewhat different than the by-law currently in place. Notwithstanding the finding that s. 39(1), (3), (4) and (5)(b) do not minimally impair the s. 2(b) right, it was the Town's first attempt to produce a by-law aimed at restricting, rather than explicitly prohibiting, third-party signs.

[64] Moreover, in the present case, the by-law had the effect of restricting all companies from erecting billboards. The s. 24(1) remedy would benefit only the respondent. More significantly, there was no evidence before the court regarding the impact of allowing the respondent's signs on the legitimate concerns of the Town.

[65] Finally, it is noteworthy that the application judge clearly underestimated the extent of the relief he granted. When he rendered his decision, the application judge believed that his order would allow the erection of signs in 11 different locations. As it turns out, the decision would allow the erection of signs in 21 different locations.

[66] In my view, therefore, the application judge erred in allowing the respondent to erect 21 signs without regard to the Town's legitimate concerns "other than being restricted to E2 zones". In the circumstances, such an order is not warranted by the Town's conduct and would unnecessarily complicate the Town's task of drafting new restrictions that appropriately balance its concerns with the freedom of expression rights of members of the billboard sign industry.

Conclusion

[67] As a result, I would allow the appeal in part by striking those portions of the judgment that quashed the by-law in its entirety and that ordered the Town to grant permits to the respondent. I would replace these portions of the judgment with an order quashing s. 39(1), (3), (4) and (5)(b) of By-law 2006-005, subject to a suspension of that order for a period of six months from the date of this decision. Given the divided success, I would make no order as to costs.

Appeal allowed in part.