Preventing visual pollution and valid constitutional limits on freedom of expression

On May 7, 2020, the Supreme Court of Canada dismissed an application by commercial advertisers wishing to appeal a September 25, 2019 ruling by the Quebec Court of Appeal,¹ which upheld the City of Montréal’s (the “City”) principal appeal on the matter of the legality of a ban on billboards in the Plateau Mont-Royal (“PMR”) borough.² Consequently, the commercial advertisers will have to remove and/or demolish the billboards still in place in the borough.

The Superior Court decision 

In a judgment rendered by Justice Marc-André Blanchard on September 22, 2016,³ the Superior Court declared null and unconstitutional article 487.1 of Urban Planning By-law for the Plateau-Mont-Royal Borough 01-277 (the “Urban Planning By-law”) , which prohibits billboards on its territory, barring certain exceptions. This finding followed a two-step analysis, first of the municipal law issues, then of the constitutional ones. 

With respect to the municipal law issues, the Superior Court recognized that even though a municipality cannot ban otherwise legal activities throughout its territory in the absence of legislative authority, partial zoning bans may be valid. In addition, Justice Blanchard found that section 157 of Schedule C of the Charter of the City of Montréal, which “allows the City to prohibit signs or billboards throughout its territory”, justifies the adoption of the Urban Planning By-law. 

However, with respect to the constitutional issues, the Superior Court declared that article 487.1 of the Urban Planning By-law is unconstitutional because it unjustifiably violates the freedom of expression protected under section 2(b) of the Canadian Charter of Rights and Freedoms (the “Canadian Charter”) as well as section 3 of the Quebec Charter of Human Rights and Freedoms. After conducting the analysis required by the section 1 test, Justice Blanchard found that the infringement of freedom of commercial expression caused by the contested by-law provisions was not justified under section 1 of the Canadian Charter since the negative effects of the infringement would exceed its expected benefits.

The Quebec Court of Appeal’s decision

The Quebec Court of Appeal considered a principal appeal by the City of Montréal regarding the declaration of unconstitutionality of section 487.1 of the Urban Planning By-law, as well as an incidental appeal by the commercial advertisers concerning the authority of the PMR borough to adopt the Urban Planning By-law. 

i) The incidental appeal 

Turning first to the municipal law issues, for reasons that were set forth by Justice Simon Ruel and with which Justice François Pelletier concurred, the Court of Appeal found that the trial judge did not err in determining that the contested provisions were intra vires the provisions of the Charter of the City of Montréal.⁴ 

The commercial advertisers argued that the PMR borough council was exercising powers granted to the City under section 157 of Schedule C of the Charter of the City of Montréal. This section allows the borough to regulate or prohibit billboards “by portion of territory”, but not throughout its territory (as the PMR borough had done).⁵ The Court of Appeal rejected this position. Since the City has a territory and this territory is divided into boroughs, the power exercised by the borough is that of the City and is consistent with section 157 of Schedule C of the Charter of the City of Montréal, since it relates to only a portion of its territory.⁶ 

Consequently, the contested by-law provisions are intra vires insofar as their enactment is expressly provided for by the Charter of the City of Montréal. This Charter gives the City (which includes its borough) the power to “stop the use of non-compliant billboards and provide for their demolition”.⁷ For these reasons, the Court of Appeal dismissed the incidental appeal by the commercial advertisers. 

ii) The principal appeal 

The City conceded that the contested by-law provisions violated the freedom of commercial expression protected under section 2(b) of the Canadian Charter. Consequently, the Court of Appeal proceeded with the section 1 test used to determine whether such a violation to the Canadian Charter is justifiable in a free and democratic society. 

Citing R. v. Guignard,⁸ the Court of Appeal recognized the pressing and substantial objective of the contested provisions,⁹ namely to prevent and eliminate visual pollution, “which includes improving the quality of the pedestrian experience, enhancing the urban landscape and redefining certain portions of the territory”.¹⁰ The Court noted in passing that the trial judge erred in law by recognizing the importance of this objective in the first stage of the test, while indirectly negating it and questioning its legitimacy at the proportionality stage of the test.¹¹ 

In the second stage of the test, the parties acknowledged the existence of a rational connection. Based on the fact that billboards are very large, very bright structures, “it can be logically inferred […] that their removal and prohibition will contribute to preventing and eliminating visual pollution”.¹² Justice Ruel noted in passing that there is a distinction to be made between limiting the content of the messages on signs and limiting their very existence, the latter not posing any difficulty on the rational connection test. 

On the minimal impairment question, the Court of Appeal held that the trial judge erred in concluding that the contested by-law provisions constituted a “maximum impairment” on commercial freedom of expression. In fact, the by-law provisions only prohibited billboards on a portion of the City’s territory,¹³ they provided for several exceptions that render the ban partial,¹⁴ and they were neutral with respect to the content of the signs.¹⁵ Interestingly, Justice Ruel noted that the commercial advertisers raised the issue of the freedom of expression of others in support of their conclusions on the constitutional validity of the impugned provisions. This aspect differs from one’s “own freedom of expression” and significantly undermined the advertisers’ arguments regarding the scope of the infringement on freedom of expression and the effects of the ban.¹⁶ 

Finally, in analyzing the proportionality between the effects of the ban and the substantial and pressing objective of the by-law provisions, the Court of Appeal held that, in keeping with Supreme Court guidelines, the fact that the freedom of expression falls almost entirely within the commercial sphere must be considered when analyzing proportionality.¹⁷ The trial judge’s finding of disproportionality was based on a very low percentage of non-commercial messages.¹⁸ Furthermore, there are many modes of commercial expression; the limitation imposed by the PMR borough covers only one of these modes in a limited geographic area with unique cultural, social, architectural and historical characteristics worthy of protection.¹⁹ Therefore, the Court found that the adverse effects of limiting and removing billboards are proportionate to the beneficial effects and the objective from which they arise. 

Based on the above rationale, the Quebec Court of Appeal allowed the principal appeal and ordered the respondents to demolish the signs in the PMR borough within six months of the order.²⁰ 

Conclusion

The Court of Appeal reconfirmed that the prevention of visual pollution is a valid objective that justifies some limits on freedom of expression. 

The Court of Appeal also reiterated that it is not within the jurisdiction of the courts to assess the political expediency of eliminating visual pollution or to determine and assess the ideological basis of municipal initiatives aimed at doing so. In this way, it highlighted the important distinction between the legislator’s role and that of the judiciary. A review of the legality of a legislative or regulatory provision does not allow the political expediency or ideological basis of that provision to be weighed. The Court must only consider the legality of a contested provision.