R. v. Guignard, [2002] 1 S.C.R. 472, 2002 SCC 14

Roger Guignard Appellant

v.

City of Saint-Hyacinthe Respondent

Indexed as: R. v. Guignard

Neutral citation: 2002 SCC 14.

File No.: 27704.

2001: October 3; 2002: February 21.

Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.

on appeal from the court of appeal for quebec

Constitutional law – Charter of Rights – Freedom of expression – Signs – Sign erected by individual on one of his buildings expressing dissatisfaction with services of insurance company – Individual convicted of contravening municipal by-law prohibiting erection of advertising signs outside industrial zone – Whether by-law infringes freedom of expression – If so, whether infringement justifiable – Canadian Charter of Rights and Freedoms, ss. 1, 2(b) – City of Saint-Hyacinthe planning by-law No. 1200, ss. 2.2.4 “enseigne” (sign), “enseigne publicitaire” (advertising sign), 14.1.5(p).

Municipal law – By-law – Validity – Signs – Sign erected by individual on one of his buildings expressing dissatisfaction with services of insurance company – Individual convicted of contravening municipal by-law prohibiting erection of advertising signs outside industrial zone – Whether by-law infringes freedom of expression – If so, whether infringement justifiable – Canadian Charter of Rights and Freedoms, ss. 1, 2(b) – City of Saint-Hyacinthe planning by-law No. 1200, ss. 2.2.4 “enseigne” (sign), “enseigne publicitaire” (advertising sign), 14.1.5(p).

G erected a sign on one of his buildings expressing his dissatisfaction with the services of an insurance company. When he refused to take the sign down, the respondent City charged him with contravening s. 14.1.5(p) of City of Saint-Hyacinthe planning by-law No. 1200, which prohibited the erection of advertising signs outside an industrial zone. The Municipal Court convicted G, finding that the by-law prohibited the type of sign erected by G and that, although this prohibition infringed freedom of expression as guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms, it was justified by s. 1 of the Charter. The Superior Court and the Court of appeal upheld the constitutionality of the by-law.

Held: The appeal should be allowed. Section 14.1.5(p) and the definition of the words “enseigne” (sign) and “enseigne publicitaire” (advertising sign) in s. 2.2.4 of the by-law are declared invalid. The declaration of invalidity is suspended for a period of six months.

Freedom of expression is fundamental to the life of every individual and plays a critical role in the development of our society. Because commercial expression is protected by s. 2(b) of the Charter, commercial enterprises have the constitutional right to engage in activities to inform and promote, by advertising. On the other hand, consumers also have freedom of expression, which sometimes takes the form of “counter-advertising” to criticize a product or make negative comments about the services supplied. In this respect, simple means of expression, such as posting signs, are the optimum means of communication for these consumers. Given the tremendous importance of economic activity in our society, a consumer’s “counter-advertising” assists in circulating information and protecting the interests of society just as much as does advertising or certain forms of political expression. This type of communication may be of considerable social importance, even beyond the purely commercial sphere. By restricting the right to use this optimum means of expression to certain designated places, the impugned by-law directly infringes freedom of expression. This infringement impacts especially on the freedom of expression of a person who does not have access to substantial financial resources. Although the impugned provisions of the by-law were certainly not designed with a view to preventing a member of the public from engaging in “counter-advertising”, if the by-law is applied literally, its effect is to make it impossible for any individual to post signs criticizing the practices, products or services of a business.

The impugned by-law is not justifiable under s. 1 of the Charter. While the prevention of visual pollution is a reasonable objective, an examination of the practical effects of the by-law shows that the City did not meet any of the tests involved in the justification process. The rational connection between the by-law and its objective was not established. As it stands, the by-law prohibits only those signs that expressly indicate the trade name of a commercial enterprise in residential areas. All other types of signs of a more generic nature, although they are just as polluting from a visual point of view, are exempt from the by-law. On the question of minimal impairment, the by-law is not a reasonable solution as among the solutions normally available to a government within the latitude it has to make these judgments. The by‑law severely curtails G’s freedom to express his dissatisfaction with the practices of his insurance company publicly. Finally, the impact of the by-law on G’s freedom of expression is disproportionate to any benefit that it secures for the municipality.

Cases Cited

Referred to: Groupe Commerce, cie d’assurances v. Guignard, [1998] Q.J. No. 695 (QL); Nanaimo (City) v. Rascal Trucking Ltd., [2000] 1 S.C.R. 342, 2000 SCC 13; Montréal (City of) v. Arcade Amusements Inc., 1985 CanLII 97 (SCC), [1985] 1 S.C.R. 368; Shell Canada Products Ltd. v. Vancouver (City), 1994 CanLII 115 (SCC), [1994] 1 S.C.R. 231; 114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town), [2001] 2 S.C.R. 241, 2001 SCC 40; R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2; Irwin Toy Ltd. v. Quebec (Attorney General), 1989 CanLII 87 (SCC), [1989] 1 S.C.R. 927; Thomson Newspapers Co. v. Canada (Attorney General), 1998 CanLII 829 (SCC), [1998] 1 S.C.R. 877; Ford v. Quebec (Attorney General), 1988 CanLII 19 (SCC), [1988] 2 S.C.R. 712; Rocket v. Royal College of Dental Surgeons of Ontario, 1990 CanLII 121 (SCC), [1990] 2 S.C.R. 232; RJR-MacDonald Inc. v. Canada (Attorney General), 1995 CanLII 64 (SCC), [1995] 3 S.C.R. 199; Ramsden v. Peterborough (City), 1993 CanLII 60 (SCC), [1993] 2 S.C.R. 1084; Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139; R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103; Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 1, 2(b).

Charter of Human Rights and Freedoms, R.S.Q., c. C-12, s. 3.

Code of Penal Procedure, R.S.Q., c. C-25.1.

Règlement d’urbanisme n^o 1200 de la Ville de Saint-Hyacinthe, ss. 2.2.4 “enseigne” (sign), “enseigne publicitaire” (advertising sign), 14.1.5(p).

Authors Cited

Brun, Henri, et Guy Tremblay. Droit constitutionnel, 3^e éd. Cowansville, Qué.: Yvon Blais, 1997.

Hogg, Peter W. Constitutional Law of Canada, vol. 2, loose-leaf ed. Scarborough, Ont.: Carswell, 1997 (updated 2000, release 1).

Rothstein, M. “Section 1: Justifying Breaches of Charter Rights and Freedoms” (1999-2000), 27 Man. L.J. 171.

APPEAL from a judgment of the Quebec Court of Appeal rendered November 17, 1999, dismissing the appellant’s appeal from a judgment of the Superior Court (Criminal Division), [1997] Q.J. No. 3213 (QL), dismissing the appellant’s appeal from a judgment of the Municipal Court of Saint-Hyacinthe, [1997] Q.J. No. 5016 (QL). Appeal allowed.

Daniel Payette, for the appellant.

Stéphane Forest, for the respondent.

English version of the judgment of the Court delivered by

LeBel J. –

I. Introduction

[1] The issue in this appeal is whether the provisions of the by-laws of the City of Saint-Hyacinthe governing the posting of signs violate s. 2(b) of the Canadian Charter of Rights and Freedoms. The appellant, Roger Guignard, was convicted in the Municipal Court of erecting a sign on one of his buildings expressing his dissatisfaction with the services of an insurance company.

[2] The courts below found that the municipal by-laws prohibited the type of sign erected by Mr. Guignard and that, although this prohibition infringed freedom of expression, it was justified by s. 1 of the Charter. For the following reasons, I would allow the appeal, quash Mr. Guignard’s conviction and enter an acquittal with respect to the offences with which he was charged.

II. Origin of the Case

[3] In 1996, Guignard owned a property within the City of Saint-Hyacinthe. An insurance policy issued by a major company, the Commerce Group, covered the risks relating to this property. A loss occurred in May 1996 and the appellant claimed an indemnity from his insurer. Payment was delayed and Mr. Guignard eventually became impatient. He placed a sign on another of his buildings that eloquently expressed his dissatisfaction. On August 8, 1996, in response to a complaint, a municipal inspector ordered the appellant to remove the sign within 24 hours. According to the inspector, the sign contravened the zoning by-law of the City, which prohibited the erection of advertising signs outside an industrial area (Règlement d’urbanisme n^o 1200 de la Ville de Saint‑Hyacinthe, s. 14.1.5(p)). The sign read as follows:

[translation]

DATE OF INCIDENT 10-05-96

DATE OF REPAIRS 10-13

DATE OF CLAIM 10-05-96

WHEN A CLAIM IS MADE,

ONE FINDS OUT ABOUT

POOR QUALITY INSURANCE

COMMERCE GROUP

THE INCOMPETENT

INSURANCE COMPANY

HAS STILL NOT INDEMNIFIED ME

[4] When he refused to comply, the municipality charged Guignard with contravening the by-law. This complaint was governed by the Code of Penal Procedure of Quebec, R.S.Q., c. C‑25.1. The charge was worded as follows:

[translation] On or about September 25, 1996, did erect an advertising sign in a zone where this kind of sign is prohibited, contrary to s. 14.1.5(p) of the zoning by-law of the City of Saint-Hyacinthe.

[5] At the same time, Mr. Guignard’s insurer applied to the civil courts for an interlocutory injunction order requiring the appellant to remove his sign. The Superior Court granted the application and ordered the sign removed. That judgment was set aside on March 10, 1998, by the Quebec Court of Appeal, which found that the sign was not defamatory in nature and that Mr. Guignard’s freedom of expression must take precedence (Groupe Commerce, cie d’assurances v. Guignard, [1998] Q.J. No. 695 (QL)). During that period, the penal case was proceeding, since Guignard was still contesting the conviction entered by the Municipal Court.

III. Judicial Background

A. Municipal Court, [1997] Q.J. No. 5016 (QL)

[6] In the Municipal Court, Guignard raised a number of defences. First, he maintained that the proceedings that had been instituted constituted an abuse of process. Second, he argued that the by-law did not apply to this type of advertising. Third, he contended that the by-law, as interpreted by the municipality, was an unjustified infringement of his freedom of expression, which is protected by s. 2(b) of the Charter.

[7] Judge Lalande rejected all of these defences. First, he found that the existence of civil proceedings between Guignard and his insurer did not justify a stay of the penal proceedings even though they were based on the same facts, since the civil consequences of a fact situation must be distinguished from its penal aspects.

[8] Second, Judge Lalande found that the sign was a “billboard” or an “advertising sign” within the meaning of the zoning by-law since the by-law did not distinguish between positive advertising and negative advertising. The unlawful nature of the sign having been established, Judge Lalande then considered the argument based on freedom of expression. He acknowledged that the sign was a form of expression that was protected by s. 2(b), but found that the infringement was justified under s. 1 of the Charter (at paras. 24‑26):

[translation] In this case, it is clear to the court that the first test has been met. In fact, there is no doubt, when we read the provisions of the complainant’s zoning by-law relating to signs, that they were passed in order to achieve the objective of maintaining a pleasant environment for the public by protecting it against visual pollution.

It also appears to the court that the second test, on the issue of minimal impairment, has been met. The by-law does not prohibit all forms of signs within the entire municipality. Rather, it limits signs to those locations where they are necessary, that is those places where an activity that may benefit from the sign is carried on. Moreover, it even permits signs in industrial zones relating to a business that is carried on in another zone.

Since the by-law both permits signs in locations where the business is carried on and, at least in one zone, permits signs off the site which is being advertised, the court concludes that there is reasonable proportionality between the measures used to limit freedom of expression and the objective sought to be achieved, namely preventing visual pollution.

The Municipal Court therefore rejected all the appellant’s defences and convicted him of the offence with which he had been charged.

B. Superior Court (Criminal Division), [1997] Q.J. No. 3213 (QL)

[9] The appellant appealed unsuccessfully to the Superior Court under the Code of Penal Procedure of Quebec. After reviewing the by-law, Downs J. found that the Municipal Court had correctly interpreted the provisions in question and that they did not constitute an unjustified infringement of the constitutional guarantee of freedom of expression.

C. Court of Appeal

[10] On November 12, 1997, Forget J.A. granted Guignard leave to appeal from the judgment of Downs J. On November 17, 1999, ruling on the merits, the Court of Appeal dismissed the appeal, stating simply that the earlier judgments were correct. Guignard was subsequently granted leave to appeal to this Court, [2000] 2 S.C.R. ix.

IV. Constitutional Questions

[11] On January 19, 2001, the Chief Justice stated the following constitutional questions:

1. Do s. 14.1.5(p) and the definition of the expressions “enseigne” (sign) and “enseigne publicitaire” (advertising sign) in the Règlement d’urbanisme de la Ville de Saint-Hyacinthe limit the right guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms?

2. If the answer to Question 1 is “yes”, can these limits be justified under s. 1 of the Charter?

V. Statutory Provisions

[12] Canadian Charter of Rights and Freedoms

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

2. Everyone has the following fundamental freedoms:

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

Règlement d’urbanisme n^o 1200 de la Ville de Saint‑Hyacinthe

[translation]

2.2.4 Definitions

Sign:

Any writing (letters, words, numbers), any pictorial representation (drawing, engraving, photograph, illustration, image), any emblem (slogan, symbol, trade mark), any flag (banner, pennant, standard, streamer), any advertising billboard or any other similar object or similar means that:

is attached to, is part of or is placed on or outside a building or on land;

is used to notify, inform, announce, advertise or for other similar purposes.

Advertising sign:

Sign indicating at least the name of a company and drawing attention to a business, a product, a service or an entertainment carried on, sold or offered other than the property on which it is placed.

14.1.5 Prohibited Signs

The following signs are prohibited:

(p) advertising signs and advertising billboards, except those located in industrial zones.

VI. Analysis

A. Issues

[13] In this Court, the parties argued only the constitutional issue. In the Municipal Court, Guignard had proposed an alternative to that argument by suggesting a restrictive interpretation of the municipal by-law. As a rule, the courts must ensure that the impugned provisions of an Act or regulation can be interpreted in a manner that is consistent with the constitutional guarantees before submitting it to constitutional scrutiny. That is, they must avoid applying the provisions of the Charter prematurely, by first ascertaining whether an adequate alternative solution could be found by applying the relevant principles. For instance, in proceedings challenging the constitutional validity of a municipal by-law, the courts will first determine whether it complies with its enabling legislation (see Nanaimo (City) v. Rascal Trucking Ltd., [2000] 1 S.C.R. 342, 2000 SCC 13; Montréal (City of) v. Arcade Amusements Inc., 1985 CanLII 97 (SCC), [1985] 1 S.C.R. 368). They will then ascertain whether these municipal powers have been exercised in a manner that complies with the general principles governing municipal by-laws. Ultimately, they must consider the meaning of the impugned provision of the by-laws and decide whether it can be interpreted in a manner that is consistent with the constitutional guarantee at issue.

[14] In this case, there is no doubt that municipal legislation in Quebec authorizes the respondent’s zoning by-law. The efforts made to find a more restrictive meaning that would make it consistent with freedom of expression were unsuccessful in the Municipal Court and were not repeated. Such an attempt would in any event have failed again, given the plain words of the by-law. In fact, the expression “advertising sign” in s. 2.2.4 of the Règlement d’urbanisme n^o 1200 de la Ville de Saint‑Hyacinthe refers to any sign that includes a trade name and attracts attention, either favourable or negative, to a business, product or service. The appellant’s sign is indisputably covered by this definition. The constitutional issue cannot therefore be avoided.

B. Arguments of the Parties

[15] The appellant argues that the municipal by-law violates s. 2(b) of the Charter and is not justified by s. 1. He contends, more specifically, that the effect of s. 14.1.5 and the definitions of “sign” and “advertising sign” in s. 2.2.4 of the by‑law is, for all practical purposes, to prohibit the posting of a consumer’s unfavourable opinion of a business, product or service. He argues that the means adopted by the respondent to prevent visual pollution in the municipality are disproportionate, and needlessly infringe freedom of expression. In his statement of the relief sought, however, Guignard seems to be seeking to have the by-law read down, or perhaps to be excluded or exempted from the application of the by-law, while at the same time challenging its validity.

[16] The respondent denies that its by-law violates the guarantee of freedom of expression. It recognizes that the appellant’s sign conveys a meaning but contends that neither the purpose nor the effect of the by-law is to limit freedom of expression. It maintains that the aim of the impugned provisions is to prevent visual pollution and driver distraction. Finally, the respondent submits that the by-law does not violate the appellant’s freedom of expression since publicizing a private dispute does not promote any of the three values underlying freedom of expression. The respondent identifies those values as the search for truth, participation in social or political decision-making and diversity in forms of individual self-fulfilment and human flourishing. This argument suggests that the appellant has failed even to establish any infringement of freedom of expression, which would mean that justification under s. 1 of the Charter is unnecessary. However, if this Court finds that the by-law limits freedom of expression, the respondent contends that the restriction is justified under s. 1 of the Charter, and that this exercise of municipal powers is accordingly valid and the judgments of the Quebec courts should be upheld.

C. Importance of Municipal Governments

[17] This Court has often reiterated the social and political importance of local governments. It has stressed that their powers must be given a generous interpretation because their closeness to the members of the public who live or work on their territory make them more sensitive to the problems experienced by those individuals. (See Shell Canada Products Ltd. v. Vancouver (City), 1994 CanLII 115 (SCC), [1994] 1 S.C.R. 231; Nanaimo (City) v. Rascal Trucking Ltd., supra; 114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town), [2001] 2 S.C.R. 241, 2001 SCC 40.) Apart from the legislative framework and the general principles of administrative law that apply to them, municipal powers must be exercised in accordance with the principles of the Charter, as must all government powers.

[18] Since we are dealing with a subject matter that falls within the legislative jurisdiction of the National Assembly of Quebec, it should be noted that Guignard could just as well have challenged the provisions in question on the basis of s. 3 of the Charter of Human Rights and Freedoms, R.S.Q., c. C-12, which expressly protects freedom of opinion and expression. Because of the positions adopted by the parties, however, the analysis of the case will be confined to a consideration of the relevant provisions of the Canadian Charter of Rights and Freedoms. I shall begin by determining whether there is a limitation on freedom of expression and then examine the problem of justification.

D. Freedom of Expression

[19] This Court attaches great weight to freedom of expression. Since the Charter came into force, it has on many occasions stressed the societal importance of freedom of expression and the special place it occupies in Canadian constitutional law. Very recently, in the highly sensitive context of an examination of the provisions of the Criminal Code relating to child pornography, McLachlin C.J. recalled the fundamental importance of freedom of expression to the life of every individual as well as to Canadian democracy. It protects not only accepted opinions but also those that are challenging and sometimes disturbing (R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2, at para. 21).

[20] This freedom plays a critical role in the development of our society. It makes it possible for all individuals to express their views on any subject relating to life in society (see Sharpe, supra, at para. 23). The content of that freedom, which is very broad, includes forms of expression the importance and quality of which may vary. Some forms of expression, such as political speech, lie at the very heart of freedom of expression. (See Sharpe, at para. 23; Irwin Toy Ltd. v. Quebec (Attorney General), 1989 CanLII 87 (SCC), [1989] 1 S.C.R. 927, at p. 976; Thomson Newspapers Co. v. Canada (Attorney General), 1998 CanLII 829 (SCC), [1998] 1 S.C.R. 877.)

[21] In applying s. 2(b) of the Charter, this Court has recognized the substantial value of freedom of commercial expression. The need for such expression derives from the very nature of our economic system, which is based on the existence of a free market. The orderly operation of that market depends on businesses and consumers having access to abundant and diverse information. Thus, in Ford v. Quebec (Attorney General), 1988 CanLII 19 (SCC), [1988] 2 S.C.R. 712, at pp. 766‑67, this Court rejected the argument that commercial speech was not subject to the constitutional guarantee

[g]iven the earlier pronouncements of this Court to the effect that the rights and freedoms guaranteed in the Canadian Charter should be given a large and liberal interpretation, there is no sound basis on which commercial expression can be excluded from the protection of s. 2(b) of the Charter.

[22] Similarly, in Rocket v. Royal College of Dental Surgeons of Ontario, 1990 CanLII 121 (SCC), [1990] 2 S.C.R. 232, which dealt with the constitutionality of a by-law limiting the right of dentists to advertise, this Court reiterated at p. 241 that advertising was a form of expression protected by s. 2(b) since it fostered informed economic choices:

The first question is whether the protection conferred by s. 2(b) applies to commercial speech, such as advertising. The argument against applying s. 2(b) to commercial speech rests on the proposition that the Charter was not intended to protect economic interests. This argument has been rejected by this Court on the ground that advertising involves more than economics. In Ford . . ., the Court noted advertising’s intrinsic value as expression, the protection afforded to the recipients of advertising as well as the advertisers, and the importance of fostering informed economic choices to individual fulfillment and autonomy.

See also RJR-MacDonald Inc. v. Canada (Attorney General), 1995 CanLII 64 (SCC), [1995] 3 S.C.R. 199.

[23] The decisions of this Court accordingly recognize that commercial enterprises have a constitutional right to engage in activities to inform and promote, by advertising. As we know and can attest, sometimes with mixed feelings, the ubiquitous presence of advertising is a defining characteristic of western societies. Usually, it attempts to convey a positive message to potential consumers. However, it sometimes involves comparisons and may even be negative. On the other hand, consumers also have freedom of expression. This sometimes takes the form of “counter-advertising” to criticize a product or make negative comments about the services supplied. Within limits prescribed by the legal principles relating to defamation, every consumer enjoys this right. Consumers may express their frustration or disappointment with a product or service. Their freedom of expression in this respect is not limited to private communications intended solely for the vendor or supplier of the service. Consumers may share their concerns, worries or even anger with other consumers and try to warn them against the practices of a business. Given the tremendous importance of economic activity in our society, a consumer’s “counter‑advertising” assists in circulating information and protecting the interests of society just as much as does advertising or certain forms of political expression. This type of communication may be of considerable social importance, even beyond the merely commercial sphere.

[24] “Counter-advertising” is not merely a reaction to commercial speech, and is not a form of expression derived from commercial speech. Rather, it is a form of the expression of opinion that has an important effect on the social and economic life of a society. It is a right not only of consumers, but of citizens.

[25] In this respect, simple means of expression such as posting signs or distributing pamphlets or leaflets or, these days, posting messages on the Internet are the optimum means of communication for discontented consumers. The media are still often beyond their reach because of the cost. In Ramsden v. Peterborough (City), 1993 CanLII 60 (SCC), [1993] 2 S.C.R. 1084, this Court stressed the importance of signs as an effective and inexpensive means of communication for individuals and groups that do not have sufficient economic resources. Signs, 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. (See Ramsden, at pp. 1096-97; see also Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139, at p. 198.)

[26] By restricting the right to use this optimum means of expression to certain designated places, the impugned by-law directly infringes freedom of expression. This infringement impacts especially on the freedom of expression of a person who does not have access to substantial financial resources. A limitation of this nature can in fact deprive that person of the only means of expression that are truly accessible to him or her. Even when a legislative or regulatory provision is neutral in appearance, it can have a major impact on the ability of a person or group to engage in expressive activity (see Irwin Toy, at pp. 974-75).

E. Impact of the By-law

[27] I readily concede that the impugned provisions of the zoning by-law were certainly not designed with a view to preventing a consumer or member of the public from engaging in “counter-advertising”. However, the by-law prohibits the posting of advertising except in industrial zones or on the site where the commercial activity is carried on (Règlement d’urbanisme n^o 1200 de la Ville de Saint‑Hyacinthe, s. 14.1.5(p)). The definition of “advertising sign” includes any kind of sign that refers to a particular business by name. The definition is clear in this regard. Section 2.2.4 defines an advertising sign as a [translation] “sign showing at least a trade name and drawing attention to a business, a product, a service or an entertainment carried on, sold or offered on a property other than the property on which it is placed”. If a sign includes a trade name, the by-law prohibits placing it elsewhere than in the location where the commercial activity takes place or in an industrial zone. No distinction is made in this regard between favourable advertising and negative advertising. If the by-law is applied literally, its effect is to make it impossible for any individual to post signs criticising the practices, products or services of a business. The two options available to an individual are to obtain the prior authorization of the business in order to be able to erect the sign on the premises where the commercial activity is carried on and to purchase or lease a site in an industrial zone. While the latter option presupposes the availability of financial resources, the former would obviously call for a miracle. The most accessible and effective form of expression for an individual such as Guignard is, for all practical purposes, prohibited. Guignard has therefore established an infringement of his freedom of expression. It is now up to the municipality to establish that the by-law is reasonable and to show that it is consistent with the values of a free and democratic society, under s. 1 of the Charter.

F. Justification

[28] In Sharpe, supra, McLachlin C.J. summarized the onus imposed on the public authority under s. 1 of the Charter as follows. To justify the intrusion on free expression, a government must demonstrate, through evidence supplemented by common sense and inferential reasoning, that the impugned law meets the tests set out in R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103, and refined in Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835, and Thomson Newspapers Co. v. Canada (Attorney General), supra. The goal of the impugned law must be pressing and substantial. The law must be proportionate to the goal in the sense of furthering the goal, being carefully tailored to avoid excessive impairment of the right, and productive of benefits that outweigh the detriment to freedom of expression. (See Sharpe, at para. 78; P. W. Hogg, Constitutional Law of Canada (loose-leaf ed.), vol. 2, at pp. 35-16 and 35‑17; H. Brun and G. Tremblay, Droit constitutionnel (3rd ed. 1997), at pp. 930-36; M. Rothstein, “Section 1: Justifying Breaches of Charter Rights and Freedoms” (1999‑2000), 27 Man. L.J. 171.)

[29] In this case, in addition to denying that the constitutional guarantee had in any way been violated, the respondent argued, in the alternative, that its by-law was justified under s. 1 of the Charter on the ground that it was designed to prevent visual pollution and driver distraction. The justification process is not limited to the objective defined. The other tests must also be met, including demonstration of a rational connection, minimal impairment and proportionality. An examination of the practical effects of the by-law shows that the respondent did not meet any of the tests involved in the justification process. To be sure, the prevention of visual pollution is a reasonable objective. The creation of zones is an appropriate urban planning exercise that is authorized by the Act and is very common in most municipalities. It is easy to understand the reasons that prompt municipalities not to allow any kind of sign, in any place and at any time. It is a matter of maintaining a pleasant environment for the residents. However, as it stands, the respondent’s by-law prohibits only those signs that expressly indicate the trade name of a commercial enterprise in residential areas. All other types of signs of a more generic nature are exempt from the by-law. Thus, if Guignard had merely stated on his sign “Don’t trust insurance companies” without anything further, or “Don’t trust the insurance company located at this address”, or “Purchase your insurance elsewhere than in Saint-Hyacinthe”, his sign would have complied with the by-law, even though it was just as polluting from a visual point of view as a billboard bearing the trade name “Commerce Group”. These difficulties illustrate the arbitrary nature of the ban and of the distinctions that underlie it.

[30] On the question of minimal impairment, the by-law in question is not a reasonable solution as among the solutions normally available to a government within the latitude it has to make these judgments. The by-law severely curtails Guignard’s freedom to express his dissatisfaction with the practices of his insurance company publicly. It forces him to use advertising methods that presuppose the availability of adequate financial resources. Alternatively, it restricts him to private or virtually private communications such as distributing leaflets in the neighbourhood around his property, which is undoubtedly less effective, to convey to the public his opinion about the quality of his insurer’s services.

[31] Finally, the impact of the by-law on Guignard’s freedom of expression is disproportionate to any benefit that it secures for the municipality. In this respect, we have seen that posting signs is an optimum means of expression for individuals (see Ramsden, at p. 1102). By limiting that means of expression, the by-law amounts 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.

[32] The only appropriate remedy in this case is a declaration that the provisions of the municipal by-law the appellant has challenged are invalid. Because of the considerable overlap between the definitions and the provision imposing the ban, the declaration of nullity must apply to both the definition and the ban itself. That is the relief that follows from the type of challenge that was brought. A solution that applied solely and personally to the appellant would not satisfactorily resolve the legal problem before us. However, given the importance of the zoning by-law in municipal land use planning and the risk of creating acquired rights, during a period in which there was a legal vacuum, which could be set up against a subsequent by-law, that relief must be tempered by suspending the declaration of invalidity for a period of six months, to give the municipality an opportunity to revise its by-law. It will no doubt be in the respondent’s interests to rethink the definition of “advertising sign”, in particular, and more clearly identify the real objectives of the bans imposed. The appellant must therefore be acquitted of the charge against him.

VII. Costs

[33] The appellant is entitled to his costs in this Court. Moreover, for the other proceedings in the case, which are governed by the Code of Penal Procedure of Quebec, it is appropriate to award the appellant costs assessed as a lump sum of $2,000 for all the proceedings in the Court of Appeal, the Superior Court and the Municipal Court as well as the disbursements incurred.

VIII. Conclusion

[34] For these reasons, the appeal is allowed, the definition of “enseigne” (sign) and “enseigne publicitaire” (advertising sign) in s. 2.2.4 of the Règlement d’urbanisme n^o 1200 de la Ville de Saint-Hyacinthe and s. 14.1.5(p) of the Règlement are declared invalid. The declaration of invalidity is suspended for a period of six months. The judgments of the Quebec Court of Appeal, the Superior Court and the Municipal Court are set aside and the appellant is acquitted of the charge against him with costs in this Court and costs limited to a $2,000 fee plus disbursements incurred in the Quebec Court of Appeal, the Superior Court (Criminal Division) and the Municipal Court of Saint-Hyacinthe.

[35] The constitutional questions are answered as follows:

1. Do s. 14.1.5(p) and the definition of the expressions “enseigne” (sign) and “enseigne publicitaire” (advertising sign) in the Règlement d’urbanisme de la Ville de Saint-Hyacinthe limit the right guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms?

Answer: Yes.

2. If the answer to Question 1 is “yes”, can these limits be justified under s. 1 of the Charter?

Answer: No.

Appeal allowed with costs.

Solicitors for the appellant: Boivin Payette, Montréal.

Solicitors for the respondent: Forest Guilmain Arpin, Saint-Hyacinthe.