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Highway Sign Restrictions and the Charter

Real estate related cases don’t often involve freedom of expression issues under the Canadian Charter of Rights and Freedoms (the “Charter”). However, in the recent case of Ontario (Minister of Transportation) v. Miracle (2005), 74 O.R. (3d) 161, the Ontario Court of Appeal dealt with just such a challenge to the provisions of the Public Transportation and Highway Improvement Act (the “Act”) which prohibit certain signs within 400 meters of controlled access highways, unless a permit is obtained from the Minister.

In this case, Miracle attached a billboard to a tractor trailer parked on land he owned abutting Highway 401. The sign was within a few metres of the highway. The Minister applied for a warrant authorizing the removal of the sign. Miracle opposed the application on the grounds that the restrictions in the Act infringed upon his right to freedom of expression as guaranteed by the Charter.

Although the Minister conceded that the restrictions were an infringement of freedom of expression, it argued they were permitted under Section 1 of the Charter as a “reasonable [limit] prescribed by law as can be demonstrably justified in a free and democratic society”.

The Court first determined that the limit was indeed prescribed by law, thus rejecting Miracle’s argument that the Minister’s discretion in granting permits was unfettered and not subject to an “intelligible standard”. The Court found that it is a well established common law principle that a Minister’s discretion must be exercised in a manner consistent with the purposes of the governing legislation, and that this was in fact an intelligible standard. The Court applied the classic test from R. v. Oakes to determine whether the infringement was justified under Section 1. Applying the Oakes test, the Court held that the objective of the legislation (i.e. preventing visual pollution and enhancing driver safety) were pressing and substantial and that the carefully defined and restricted limitation provided by the Act was proportional with the above objectives. Therefore, the deleterious affects of the measures were clearly outweighed by the objectives of the legislation, and the Charter challenge was unsuccessful.

John Payne

November 29, 2005 in Other | Permalink

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