Democracy: A Deafening Guarantee
8 June 2020
Only through the topsy-turvy exercise of judicial amendment was the majority able to connect the issue of freedom of expression to buildings, apply noise as nuisance to public space, and write-off an overbroad limitation on a fundamental tool of democracy as an act of deference in Montréal (City) v. 2952-1366 Québec Inc. After a short description, noise within a public space will be analysed according to each judicial “trick”. Comments on the implication of this decision concludes this short discussion.
A club featuring female dancers (“the club”) located on the busy St. Catherine Street in Montréal, Québec, was charged under articles 9(1) and 11 of the By-law for producing noise with sound equipment that could be heard outside the club.
The club was unsuccessful in challenging the By-law under the Canadian Charter of Rights and Freedoms in the Montréal Municipal Court but appealed successfully to the Superior Court. This was upheld by the Québec Court of Appeal. There were two issues in the final appeal
at the Supreme Court of Canada:
- The jurisdictional issue: Chief Justice McLachlin and Deschamps J. differentiated noise from loudspeakers from environmental noise in an effort to resolve apparent ambiguity in art. 9(1) of the By-law in deciding that the provision was intra vires. Binnie J. in dissent found that art. 9(1) was not ambiguous, not predicated on nuisance, and imposed a general ban on all noise.
- The constitutional issue: the majority applying the test from Irwin Toy Ltd. v. Québec (Attorney General), and developing a test of location in obiter, found that the noise was protected expressive activity but justified under s.1 of the Charter. The objective of preventing noise pollution was found to be a pressing and substantial objective, limiting noise from sound equipment was rationally connected to the objective of maintaining the quality of this public space and the provision minimally impaired the right. The majority declined to interfere with public discretion to address any over-inclusiveness and chose to balance the need for commercial expression and public peace through judicious prosecutorial discretion. The dissent did not accept that the limits were “prescribed by law” or that art. 9(1) was a proportionate response to noise control and would not have justified it under s.1.
In a 6-1 decision, the By-law was found to be intra vires and while it violated s. 2(b) of the Charter, this was a reasonable and demonstrably justifiable limit on the right to freedom of expression under s. 1. The appeal was allowed and the By-law stood.
Binnie J. in dissent, argued that the majority performed “radical surgery” on art. 9(1) by reading in the qualifier of “disruptive noise,” reading out “[i]n addition to” in art. 8 referring to quality of noise and converting it to mean a source of noise, reading up to require an “essential connection with a building,” and finally reading down to apply “only to sounds that stand out over the environmental noise.” Each of these “tricks” of judicial acrobatics will be analysed in turn.
Reading In: Disruptive Noise and Reading Down: Distinctive noise
Noise is a difficult concept to define. After scant analysis of the very core of the issue, the Court was divided on whether art. 9(1) referred to all sound or just disruptive sounds. The majority chose to confine its interpretation of “disruptive” noise as meaning “noise that interferes with the peaceful use of urban spaces, and is distinguished from noise in the literal sense.”
Article 9(1) prohibits “any audible signal from ‘sound equipment’.” In order to limit the breadth of art. 9(1), the majority read down the law to apply only to “sounds that stand out over the environmental noise” that “adversely affect the enjoyment of the environment.”
The science of sound is complex. As Richard Haigh reviews, noise varies according to direction, frequency, and environmental conditions, it is difficult to measure, and is largely subjectively defined. Although quantification of sound is possible, it is decidedly impractical given these permutations. Fish J.A. from the court below did not find the sounds from the loudspeakers to be “disruptive” noise and held the prohibition of “nuisances that are not in fact nuisances” as ultra vires. The SCC majority, preferring a more peaceful approach to the aural urban landscape, did not agree. This difference of opinion is particularly troublesome given the fact that the majority preferred to leave the evaluation of disruption to prosecutorial discretion as an aspect of minimal impairment in combatting nuisance. This proposition leaves gapping uncertainties about the law that not only flies in the face of common sense and common law, it denies the very protection for which the Charter embodies. Section 52(1) of the Charter maintains the supremacy of the Charterover all other law and reading down art. 9(1) to constrain its very essence is unconstitutional. The rule of law upholds the idea that no man should be at the mercy of arbitrary law. Sadly, now anyone playing a CD through an open window, even a Leonard Cohen CD and even in the leafy district of Outremont, will find themselves exposed to the possibility of falling foul of the law, their liberty lying in wait as they teeter on the high wire of constitutional rights.
Reading Out: Source of Noise
In Binnie J.’s view, art. 9(1) imposes a general prohibition on “noise produced by sound equipment.” The provision does not mention quality or impact of the noise, nor does it have the characteristics of a nuisance. Contrary to the wording of the By-law, the majority converts a ban by source into a ban on the interference with enjoyment. The City did not include level, place, type, or qualitative restrictions yet the majority insisted that “[i]t is up to the City to choose the means” of regulation.
A glaring omission in this decision is the Court’s failure to embrace the opportunity to explore the aspect of “source” or “method” more comprehensively. Freedom of expression, broadly defined, protects the content neutrality of the message. The key question however, is whether form, in this case amplification, can be envisaged separately from content, here being the sound itself. In the spirit of Marshall McLuhan, it is simply not possible to separate content from form where “the medium is the message.” As with the fusion between language and expression concerning a Québec sign By-law, expression of electronic media, such as compact discs, radios, or assistive speaking devices, is not possible without amplification. A ban on form, is essentially a ban on the expression itself.
Intimately connected to the fusion of method/message, is the symbiotic relationship between the expression and the reception of that communication. Irwin, specifies that “the diversity in forms of individual self-fulfillment and human flourishing ought to be cultivated in an essentially tolerant, indeed welcoming, environment not only for the sake of those who convey a meaning, but also for the sake of those to whom it is conveyed.” This makes clear that both the communicator and the listener are engaged and considered within a larger context of diversity and tolerance. Robin Elliot suggests that larger societal goals along with individual goals will be enhanced through greater sensitivity to inclusion. Richard Moon reveals how such a relational approach highlights how the guaranteed right of freedom of expression contributes “to engagement in community life and to…participation in a shared culture and collective governance.” It is in the interplay between the expression its reception within a colourful and changing context where the true potential for collective flourishing lies.
Reading Up: Location of noise
The crux of the problem is that had the majority not read up art. 9(1) to include association with a building, location would not have been discussed. Instead, it looms as an artificial opportunity to consolidate the fractured approach developed in Committee for the Commonwealth of Canada v. Canada as dicta ill-conceived and ill-suited to protect the right. Firstly, the test of location is presented as a categorical test that declines any assistance with respect to boundaries delineating permissible from not. It is presumed as self-evident that there are places where free expression should not lie without establishing any cogent rationale.
Secondly, it places the emphasis on the historic use or actual function of the locale and asks whether it is somewhere that rights should exist in isolation from the context in which the right interacts with the law at that particular place. Although streets may be used for both transportation and communication, the Court defers to the former primary use when evaluating the right. This places the burden on individuals to fit with the role of property rather than as a balancing exercise that considers the right in context with the place. Given the intentional avoidance of economic rights in the Charter, prioritizing state “use of property over communicative access,” seems misguided and contradictory.
Thirdly, the point at which this test operates, prior to the justification stage, is placed intentionally as a screening device because “governments should not be required to justify every exclusion or regulation of expression under s. 1.” Respectfully, this approach does not afford the strong protections that are associated with critical Charter rights. Mere convenience is insufficient to deny the “large and liberal” and purposive approach to Charter analysis. Brian Slattery suggests that the balancing context of location with the nature of the law is best assessed within an Oakes analysis where the burden of proof is appropriately placed on the government.
Finally, the use of permits to use sound equipment in public areas is both paternalistic and reinforces peaceful expression that is within permissible bounds as authorized. By failing to consider whether the right to “participate in an activity that is deeply social in character, that involves socially created languages and the use of community resources,” it neglects to ask whether the public space makes room for communicative expression. Although the majority found “no evidence that it has exercised this authority arbitrarily or to curb democratic discourse,” the very fact that permission must be sought is a barrier to the “free” exercise of s. 2(b) rights and is not rightfully considered as a proportional means for combatting noise pollution.
Clearly this test effectively reduces the question to whether the public space fits into a category that would prohibit expressive activity and contorts the idea of a right to express freely into an obligation not to disrupt in public spaces. The burden is on individuals to fit with the role of the property. Peaceful expression is preferred with permission granted for appropriate forms.
Even though the test of location was included as arguably flawed obiter dictum, it has been applied in Canadian jurisprudence with inconsistent and dangerous results. Although expressly adopting this test, GVTA, in declining to accord deference to the transit authority, achieved an entirely opposite result. Particularly alarming is the use of this precedent to limit acts of civil disobedience on public property. If the constitution is to hold any value, its broad approach to rights must be staunchly protected against reasonable limits. Lofty purposes of “unobstructed access to and diffusion of ideas,” promoting “free trade in [the marketplace] of ideas,” and supporting “personal growth and self-realization” will all be for naught unless given their due weight when balanced against government interest in a public forum. When in doubt, freedom should prevail.
Practicing the acrobatics of judicial amendment to ascertain legislative intent did not play out well for the constitutional protections of Canadians in this case. Reverence to a right described as “the matrix, the indispensable conditions of nearly every other freedom,” is sorely lacking due to judicial manipulation and unwarranted deference to municipal and prosecutorial discretion. Surely, it is only in the brave new world of Charter construction that this decision can possibly stand as an illustration of the dangerous predicament of leaving the liberty of a nation in the hands of a conventional few. Democratic guarantees are meant to deafen. Such skewed smothering deserves a second look. Charter freedoms demand no less.
 2005 SCC 62,  3 SCR 141 [Montréal].
 By–law concerning noise, R.B.C.M. 1994, c. B-3 [By-law],
 Section 2(b), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982(UK), 1982, c 11 [Charter].
 R. c. 2952-1366 Québec Inc,  J.Q. no 2890 [MC].
 Montréal (Ville) c. 2952-1366 Québec Inc,  J.Q. no 7289 (SC).
 Montréal (Ville) c. 2952-1366 Québec Inc,  J.Q. no 3376,  R.J.Q. 2986, 217 D.L.R. (4th) 674, 167 C.C.C. (3d) 356 (CA).
 Montréal, supra note 1.
 1989 CanLII 87 (SCC),  1 SCR 927 [Irwin].
 Montréal, supra note 1 at para 110.
 Ibid at paras 146-147.
 Ibid at para 31.
 Ibid at para 109.
 Ibid at para 46.
 Ibid at para 34.
 Richard Haigh, “And No More Shall We Shout: Noise By-Laws, Freedom of Expression and a Montréal Sex Club” (2006), 34 S.C.L.R. (2d) at 83-101.
 Charter, supra note 3.
 Montréal, supra note 1 at para 124.
 Ibid at paras 148, 151.
 Ibid at para 48.
 Marshall McLuhan, Understanding Media: The Extensions of Man (New York: Mentor, 1964) at 1.
 Ford v. Québec (Attorney General), 1988 CanLII 19 (SCC),  2 SCR 712 [Ford].
 Irwin, supra note 8 at 976.
 Robin Elliot, “The Supreme Court’s Understanding of the Democratic Self-Government, Advancement of Truth and Knowledge and Individual Self-Realization Rationales for Protecting Freedom of Expression: Part I — Taking Stock” (2012), 59 S.C.L.R. (2d) 435-512 at para 19.
 Richard Moon, The Constitutional Protection of Freedom of Expression (Toronto: University of Toronto, 2000) at 8-9.
 Committee for the Commonwealth of Canada v. Canada, 1991 CanLII 119 (SCC),  1 SCR 139.
 Richard Moon, “Out of Place: Comment on Committee for the Commonwealth of Canada v Canada” (1992-93) 38:1 McGill LJ 204 at 208.
 Montréal, supra note 1, McLachlin CJC at para 79.
 Ford, supra note 21.
 R. v. Oakes, 1986 CanLII 46 (SCC),  1 SCR 103.
 Brian Slattery, “Freedom of Expression and Location: Are There Constitutional Dead Zones?” (2010), 51 S.C.L.R. (2d) 245-272 at para 80.
 Moon, supra note 25 at 164.
 Montréal, supra note 1 at para 90.
 Sarah E. Hamill, “Location Matters: How Nuisance Governs Access to Property for Free Expression” (2014) 47 UBC L Rev 129-165 at 29.
 Greater Vancouver Transportation Authority v. Canadian Federation of Students – British Columbia Component,  S.C.J. No. 31,  2 S.C.R. 295 (SCC) [GVTA].
 Batty v. Toronto (City),  O.J. No. 5158, 108 O.R. (3d) 571 (Ont. S.C.J.), Brown J at para 101.
 Jamie Cameron, “A Reflection on Section 2(b)’s Quixotic Journey, 1982-2012” (2012) 58 Sup Ct L Rev (2d) 163 (the court upholds reasonable limits on free expression twice as often as they protect free expression at 168).
 Peter W. Hogg, Constitutional Law of Canada: 2019 Student Edition (Toronto, Thomson Reuters Canada, 2019) at 43-8 citing Switzman v. Elbling and A.G. of Québec, 2 (SCC),  S.C.R. 285, Rand J.
 Ibid citing Abrams v. United States (1919) 250 U.S. 616, 630, Justice Oliver Wendell Holmes (dissenting).
 Ibid citing L.H. Tribe, American Constitutional Law (Foundation Press, N.Y., 2nd ed., 1986), ch. 12 at 787.
 Palko v. Connecticut, 302 U.S. 319, (1937), Justice Cardozo at 327, cited in R. v. Sharpe,  S.C.J. No. 3,  1 S.C.R. 45 at para. 23 (SCC), McLachlin CJC.