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Case Summary
Ramsden v Peterborough (City)
Ramsden v Peterborough (City)
[1993] 2 S.C.R. 1084
FACTS
Kenneth Ramsden, on two occasions, advertised upcoming performances of
his band by affixing posters to hydro poles. Both times, he was charged
under By-Law No. 3270 of the city of Perterborough. The by-law prohibited
the placement of bills, posters, signs or any other advertisements on any
public property within the city. Ramsden did not deny that he committed
the offences. However, he argued that the by-law was unconstitutional as
it violated freedom of expression under s. 2(b) of the Canadian Charter of
rights and Freedoms.
LOWER COURTS
Provincial Offences Court
The Provincial Offences Court concluded that there was no violation of
s. 2(b) of the Charter and found Ramsden guilty of the charges. The court
asserted that the by-law was neutral on the issue of the content of
advertising. Furthermore, the objectives of the by-law (aesthetic
considerations, safety of the public and maintenance workers, and garbage
collection) were sufficiently substantial to justify the prohibition.
Finally, the detrimental effect of the prohibition were minimal
considering the availability of alternative means of advertising. Ramsden
appealed the decision to the Provincial Court.
Provincial Court
The Provincial Court dismissed Ramsden’s appeal. The court asserted
that freedom of expression did not include the obligation of property
owners to provide “cost-free advertising” to a commercial interest simply
because their property was commonly used for displaying material.
Furthermore, the court concluded that the by-law did not violate s. 2(b)
of the Charter as it did not censor expression. It simply imposed a total
ban on the use of property for certain purposes, so as to promote safety,
avoid visual blight, and keep down housekeeping costs. Ramsden appealed
the decision to the Court of Appeal for Ontario.
Court of Appeal for Ontario
The Court of Appeal allowed Ramsden’s appeal. The majority of the court
concluded that the advertisement of an artistic performance was expression
protected by s. 2(b) of the Charter. Furthermore, the effect of the by-law
was to restrict this speech and, as such, violated s. 2(b). Finally, the
violation was not justifiable under s. 1 of the Charter as it represented
an absolute prohibition on all public property. As such, it failed to
minimally impair the right and its detrimental effects were not
proportionate to its benefits. The decision was appealed to the Supreme
Court of Canada.
ISSUES
The Supreme Court considered two issues:
- Whether the by-law violated s. 2(b) of the Charter.
- If so, whether the violation was justifiable under s. 1 of the
Charter.
DECISION:
The Supreme Court unanimously dismissed the appeal. Iacobucci wrote for
the Court and concluded the following:
- The by-law violated s. 2(b) of the Charter.
- The violation was not justifiable under s. 1 of the Charter.
DECISION REASONS:
Iacobucci (with Lamer, La Forest, L’Heureux-Dube, Sopinka, Gonthier,
Cory, McLachlin, and Major)Section 2(b) of
the Charter
Analysis under s. 2(b) of the Charter involved a two-part inquiry:
1) Whether the activity in question fell within the scope of s.
2(b).
- Whether the act in question constituted expression.
- If so, whether the expression was protected by s. 2(b).
3) Whether the purpose or effect of the legislation in question
was to restrict freedom of expression.
Application of s. 2(b) of the Charter to this Case
Iacobucci concluded that the by-law violated s. 2(b) of the Charter.
Within the Scope of Section 2(b).
The posting of advertisements for a musical performance fell with the
scope of s. 2(b). First, the postering conveyed social and cultural
information concerning an upcoming performance and, as such, constituted
expression. Second, this expression was protected by s. 2(b). Postering on
some public property (including hydro poles) clearly fostered political
and social decision-making and, as such, furthered at least one of the
values underlying s. 2(b).
Purpose and Effect of the Legislation
The by-law restricted this protected expression. For Iacobucci, the
purpose of the by-law was not to restrict expression. The purpose of the
by-law was orientated towards avoiding the negative consequences of
postering: specifically, the litter, aesthetic blight, traffic hazards and
hazards to persons engaged in repair and maintenance. Furthermore, its
purpose was content neutral as (1) its objective was a particular conduct
not content and (2) it prohibited all postering absolutely. However, the
effect of the by-law was too restrictive. The absolute prohibition of
postering on public property prevented the communication of political,
cultural and artistic messages.
Section 1 of the Charter
Iacobucci concluded that his violation was not justifiable under s. 1
of the Charter. Specifically, it failed the second and third components of
the proportionality test.
Importance of the Objective
Iacobucci concluded that the objective of the by law was sufficiently
important to warrant a Charter violation. The by law sought to avoid
littering, aesthetic blight, and public and worker safety: all important
objectives.
Proportionality Test
However, Iacobucci concluded that the means of the by law failed the
proportionality test. First, the means were rationally connected to
their objective: prohibiting postering would end litter and aesthetic
blight and promote safety. However, the means did not minimally impair
the right to freedom of expression. Specifically, the by-law went too
far by prohibiting all postering on all public property. Worker safety
was only important with respect to power poles, not to trees and other
types of public property. Traffic safety was only important with respect
to posters facing roadways. Litter and aesthetic blight could be
controlled through less restrictive manners. Finally, the detrimental
effects of the by-law were not proportionate to its benefits. While the
objectives of the by-law were important, they did not outweigh the
impact of the violation; the complete denial of an important form of
expression was too extreme a solution.
Outcome
Iaccobucci concluded that the appeal should be dismissed. For him, the
by-law violated s. 2(b) of the Charter. Furthermore, this violation could
not be justified under s. 1 of the Charter as it failed the
proportionality test.
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