Montréal (City) v. 2952-1366 Québec Inc., [2005] 3 S.C.R. 141, 2005 SCC 62, 2005 SCC 62 (2005)

Extract

---

Montréal (City) v. 2952-1366 Québec Inc., [2005] 3 S.C.R. 141, 2005 SCC 62, 2005 SCC 62 (2005)

SUPREME COURT OF CANADA

Citation: Montréal (City) v. 2952-1366 Québec Inc., [2005] 3 S.C.R. 141, 2005 SCC 62

Date: 20051103

Docket: 29413

Between:

City of Montreal

Appellant and

2952-1366 Québec Inc.

Respondent

- and -

Attorney General of Ontario

Intervener

Coram: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Abella and Charron JJ.

Reasons for Judgment:

(paras. 1 to 101)

Dissenting reasons:

(paras. 102 to 177)

McLachlin C.J. and Deschamps J. (Bastarache, LeBel, Abella and Charron JJ. concurring)

Binnie J.

______________________________

Montréal (City) v. 2952-1366 Québec Inc., [2005] 3 S.C.R. 141, 2005 SCC 62

City of Montréal Appellant v.

2952-1366 Québec Inc. Respondent and

Attorney General of Ontario Intervener

Indexed as: Montréal (City) v. 2952-1366 Québec Inc.

Neutral citation: 2005 SCC 62.

File No.: 29413.

2004: October 14; 2005: November 3.

Present: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Abella and Charron JJ.

on appeal from the court of appeal for quebec

Municipal law - By-laws - Validity - Nuisances - Loudspeaker set up by business in entrance to its club so that passers-by would hear sound of show under way inside - Business convicted under municipal by-law prohibiting noise produced by sound equipment that can be heard from outside - Scope of by-law - Whether by-law exceeding jurisdiction conferred on municipality by its enabling legislation - Charter of the city of Montreal, 1960, S.Q. 1959-60, c. 102, arts. 516, 517(l), 520(72) - By-law concerning noise, R.B.C.M. 1994, c. B-3, art. 9(1).

Constitutional law - Charter of Rights - Freedom of expression - Municipal by-law prohibiting noise produced by sound equipment that can be heard from outside - Whether by-law infringing freedom of expression - If so, whether infringement can be justified - Canadian Charter of Rights and Freedoms, ss. 1, 2(b) - By-law concerning noise, R.B.C.M. 1994, c. B-3, art. 9(1).

Constitutional law - Charter of Rights - Freedom of expression - Public property - Approach for application of s. 2(b) of Canadian Charter of Rights and Freedoms to public property.

A business operating a club featuring female dancers in downtown Montréal set up, in the entrance to its establishment, a loudspeaker that amplified the music and commentary accompanying the show under way inside so that passers-by would hear them. The business was found guilty in the Municipal Court of an offence under s. 9(1) of the City of Montréal's By-law concerning noise, which provides that "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". The Superior Court quashed the conviction on the basis that the By-law infringed the respondent's freedom of expression and that this infringement could not be justified. The Court of Appeal upheld that decision. It held that the City could not define an activity as a nuisance if it was not a nuisance and that the prohibition constituted an unjustified violation of the right to freedom of expression.

Held (Binnie J. dissenting): The appeal should be allowed. The municipal by-law is valid.

Per McLachlin C.J. and Bastarache, LeBel, Deschamps, Abella and Charron JJ.: Article 9(1) of the By-law is not overbroad, and it applies only to sounds that stand out over the environmental noise. Although this provision, drafted using general language, is ambiguous, a contextual interpretation resolves the ambiguity and enables the scope of art. 9(1) to be determined. The history of the By-law shows that the lawmakers' purpose was to control noises that interfere with peaceful enjoyment of the urban environment. It is clear from the legislative purpose that the scope of art. 9(1) does not include sounds resulting solely from human activity that is peaceable and respectful of the municipal community. The immediate context of art. 9 supports this interpretation. It indicates that the concept of noise that adversely affects the enjoyment of the environment is implicit in art. 9 and that the activities prohibited under it are activities that produce noises that can be detected as separate from the environmental noise. [11] [16] [26] [34]

The City has the power to adopt art. 9(1) of the By-law by virtue of its power to define and regulate nuisances pursuant to arts. 517(l) and 520(72) of the Charter of the city of Montreal, 1960. Only an exercise of this regulatory power in bad faith or for improper or unreasonable purposes will justify judicial review. To control noise, the City did not establish an absolute prohibition, but chose to target certain types of sounds that are more likely to stand out over other environmental noise. This choice is of course consistent with its delegated power and in no way constitutes an unreasonable or improper exercise of that power. [41] [45] [48] [54]

Article 9(1) infringes s. 2(b) of the Canadian Charter of Rights and Freedoms. The n...

See the full content of this document

If you are already a vLex customer, access here

---