(2010) 325 D.L.R. (4th) 313 (B.C.C.A.) (Released 19 October
Enforcement of Municipal By-Laws – Injunctions
– Constitutional Law – Freedom of Expression
under s. 2(b)
This appeal was concerned with whether a by-law prohibiting the
construction of new structures on city streets without first
obtaining written consent from the City of Vancouver was
constitutionally valid (the "by-law").
Falun Gong practitioners set up banners and a makeshift shelter
and meditation hut in front of the Chinese Consulate in the City.
The structure was primarily located on the grassy portion of a City
street. The City brought a successful application for an injunction
requiring the practitioners to remove the structures and
prohibiting them from placing new structures on the street. The
BCSC found that this method of expression was not protected by s.
2(b) of the Charter. The BCSC held that, in any event, the by-law
was reasonably justified under s.1.
The British Columbia Court of Appeal overturned the lower court
decision and declared the provision of the by-law of no force and
effect. The court found that public streets are spaces in which
political expression takes place and the City's limitation on
the use of a structure for the purpose of political expression was
a violation of s. 2(b) of the Charter.
The Court of Appeal further found that the City's violation
of s. 2(b) of the Charter was not justified under s. 1. Although
regulation of structures on public streets is a pressing and
substantive objective that is rationally connected to the goal of
regulating the placement of structures on public streets, the
by-law did not minimally impair the practitioners' rights. The
by-law was an absolute prohibition with an uncertain possibility of
exception by City council on unknown grounds. The by-law did not
reflect the considerations made when approval is granted and there
was no scheme that considered political speech and expression.
Ultimately, the court found that regulation of commercial and
artistic expression cannot justify a by-law that precludes any use
of structure, however minimal, for political expression. Finally,
the practitioners' inconvenience in not being able to use the
structure to aid expressive activity outweighed the minimal benefit
to the City.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).