Montreal v. 2952-1366 Quebec Inc. edited

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Montreal (City) v. 2952-1366 Québec Inc. , 2005 SCC 62 Chief Justice McLachlin and Deschamps J. (Bastarache, LeBel, Abella and Charron JJ. concurring) 1. Introduction 1. This appeal concerns the power of the city of Montréal (the City ) to prohibit noise produced in the street by a loudspeaker located in the entrance of an establishment. Two arguments are raised, one based on the limits on the power to regulate and the other on the Canadian Charter of Rights and Freedoms (the Canadian Charter ). For the reasons that follow, these arguments must be rejected. 2. In light of its scope, art. 9(1) of the By-law concerning noise , R.B.C.M. 1994, c. B-3 (the By-law ), was validly adopted by the City pursuant to its regulatory powers. Although this provision limits the freedom of expression guaranteed by s. 2( b ) of the Canadian Charter , the limit is reasonable and can be justified within the meaning of s. 1 of the Charter . 2. Origins of the Case 3. The respondent operates a club featuring female dancers in a commercial zone of downtown Montréal, in a building fronting Ste-Catherine Street. To attract customers and compete with a similar establishment located nearby, the respondent set up, in the main entrance to its club, a loudspeaker that amplified the music and commentary accompanying the show under way inside so that passers-by would hear them. Around midnight on May 14, 1996, a police officer on patrol on Ste-Catherine Street heard the music from a nearby intersection. The respondent was charged with producing noise that could be heard outside using sound equipment, in violation of arts. 9(1) and 11 of the By-law. These provisions read as follows: 9. In addition to the noise referred to in article 8, the following noises, where they can be heard from the outside, are specifically prohibited: (1) noise produced by sound equipment, whether it is inside a building or installed or used outside; . . . 11. No noise specifically prohibited under articles 9 or 10 may be produced, whether or not it affects an inhabited place. 4. Summoned before the Municipal Court, the respondent contested the charge on the ground that arts. 9(1) and 11 of the By-law were invalid. According to the respondent, the City, in adopting these provisions, exceeded its delegated power in respect of nuisances because the provisions defined as a nuisance an activity that was not a nuisance. The respondent also alleged that the provisions infringed its freedom of expression and that the infringement could not be justified. ... 6. The debate is now before this Court. We will first address the administrative law argument before turning to the constitutional argument. [ The majority found that the By-law was valid in administrative law terms.]
- 2 - 3. Analysis 3.2 Does Article 9(1) of the By-law Infringe Section 2(b) of the Canadian Charter? 56. Does the City s prohibition on amplified noise that can be heard from the outside infringe s. 2( b ) of the Canadian Charter ? Following the analytic approach of previous cases, the answer to this question depends on the answers to three other questions. First, did the noise have expressive content , thereby bringing it within s. 2( b ) protection? Second, if so, does the method or location of this expression remove that protection? Third, if the expression is protected by s. 2( b ), does the By-law infringe that protection, either in purpose or effect? See Irwin Toy Ltd. v. Quebec (Attorney General) , [1989] 1 S.C.R. 927. 57. The first two questions relate to whether the expression at issue in this case falls within the protected sphere of s. 2( b ). They are premised on the distinction made in Irwin Toy between content (which is always protected) and form (which may not be protected). While this distinction may sometimes be blurred ... , it is useful in cases such as this, where method and location are central to determining whether the prohibited expression is protected by the guarantee of free expression. 3.2.1 Expressive Content 58. The first question is whether the noise emitted by a loudspeaker from inside the club had expressive content. The answer must be yes. The loudspeaker sent a message into the street about the show going on inside the club. The fact that the message may not, in the view of some, have been particularly valuable, or may even have been offensive, does not deprive it of s. 2( b ) protection. Expressive activity is not excluded from the scope of the guarantee because of its particular message. Subject to objections on the ground of method or location, as discussed below, all expressive activity is presumptively protected by s. 2( b ): see Irwin Toy , at p. 969; R. v. Keegstra , [1990] 3 S.C.R. 697, at p. 729. 59. It is clear that noise emitted by loudspeakers from buildings onto the street can have expressive content, and in this case it did. Therefore, the first part of the test in Irwin Toy is met and a prima facie case for s. 2( b ) protection is established. 3.2.2 Excluded Expression 60. Expressive activity may fall outside the scope of s. 2( b ) protection because of how or where it is delivered . While all expressive content is worthy of protection (see Irwin Toy , at p. 969), the method or location of the expression may not be. For instance, this Court has found that violent expression is not protected by the Canadian Charter : Irwin Toy , at pp. 969-70. Violence is not excluded because of the message it conveys (no matter how hateful) but rather because the method by which the message is conveyed is not consonant with Charter protection. 61. This case raises the question of whether the location of the expression at issue causes the expression to be excluded from the scope of s. 2( b ): see Committee for the Commonwealth of Canada v. Canada , [1991] 1 S.C.R. 139, per Lamer C.J. Property may be private or public. Public property is government-owned. In this case, although the loudspeaker was located on the respondent s private property, the sound issued onto the street, a public space owned by the government. One aspect of free expression is the right to express oneself in certain public spaces. Thus, the public square and the speakers corner have by tradition become places of protected expression. The question here is whether s. 2( b ) of the Canadian Charter protects not only what the Appellants were doing, but their right to do it in the place where they were doing it , namely a public street.
- 3 - 62. Section 2( b ) protection does not extend to all places. Private property, for example, will fall outside the protected sphere of s. 2( b ) absent state-imposed limits on expression, since state action is necessary to implicate the Canadian Charter . Public property, however, may be more problematic since, by definition, it implicates the state. Two countervailing arguments, both powerful, are pitted against each other where the issue is expression on public property. 63. The argument for s. 2( b ) protection on all public property focuses on ownership. It says the critical distinction is between government-owned places and other places. The government as the owner of property controls it. It follows that restrictions on the use of public property for expressive purposes are government acts . Therefore, it is argued, the government is limiting the right to free expression guaranteed by s. 2( b ) of the Canadian Charter and must justify this under s. 1. 64. The argument against s. 2( b ) protection on at least some government-owned property, by contrast, focuses on the distinction between public use of property and private use of property. Regardless of the fact that the government owns and hence controls its property, it is asserted, many government places are essentially private in use. Some areas of government- owned property have become recognized as public spaces in which the public has a right to express itself. But other areas, like private offices and diverse places of public business, have never been viewed as available spaces for public expression. It cannot have been the intention of the drafters of the Canadian Charter , the argument continues, to confer a prima facie right of free expression in these essentially private spaces and to cast the onus on the government to justify the exclusion of public expression from places that have always and unquestionably been off-limits to public expression and could not effectively function if they were open to the public. 65. In Committee for the Commonwealth of Canada , six of seven judges endorsed the second general approach, although they adopted different tests for determining whether the government-owned property at issue was public or private in nature. Lamer C.J., supported by Sopinka and Cory JJ., advocated a test based on whether the primary function of the space was compatible with free expression. McLachlin J., supported by La Forest and Gonthier JJ., proposed a test based on whether expression in the place at issue served the values underlying the s. 2( b ) free speech guarantee. L Heureux-Dubé J. opted for the first approach and went directly to s. 1. 66. In this case, as in Ramsden v. Peterborough (City) , [1993] 2 S.C.R. 1084, we are satisfied that on any of the tests proposed in Committee for the Commonwealth of Canada , the emission of noise onto a public street is protected by s. 2( b ). The activity is expressive. The evidence does not establish that the method and location at issue here a building-mounted amplifier emitting noise onto a public street impede the function of city streets or fail to promote the values that underlie the free expression guarantee. 67. This method of expression is not repugnant to the primary function of a public street, on the test of Lamer C.J. Streets provide means of passing and accessing adjoining buildings. They also serve as venues of public communication. However one defines their function, emitting noise produced by sound equipment onto public streets seems not in itself to interfere with it. If sound equipment were being used in a way that prevented people from using the street for passage or communication, the answer might be different: see, e.g. MacMillan Bloedel Ltd. v. Simpson (1994), 89 C.C.C. (3d) 217 (B.C.C.A.). However, the evidence here does not establish this. 68. The method and location of the expression also arguably serve the values that underlie the guarantee of free expression, on the approach advocated by McLachlin J. Amplified emissions of noise from buildings onto a public street could further democratic discourse, truth finding and self-fulfillment. Again, if the evidence showed that the amplification inhibited passage and communication on the street, the situation might be different. The argument that the emissions of noise onto a public street in this case did not serve the values underlying the
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