Vancouver (City) v. Zhang et al., (2010) 292 B.C.A.C. 244 (CA)

• Judge: Huddart, Lowry and Frankel, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: October 19, 2010
• Jurisdiction: British Columbia
• Citations: (2010), 292 B.C.A.C. 244 (CA);2010 BCCA 450

Vancouver v. Zhang (2010), 292 B.C.A.C. 244 (CA);

    493 W.A.C. 244

MLB headnote and full text

Temp. Cite: [2010] B.C.A.C. TBEd. OC.019

City of Vancouver (respondent/petitioner) v. Sue Zhang, John Doe, Jane Doe, and Other Persons Unknown Erecting, Maintaining or Occupying Structures on City of Vancouver Street in the 3300 Block of Granville Street, Vancouver, British Columbia (appellants/respondents)

(CA036802; 2010 BCCA 450)

Indexed As: Vancouver (City) v. Zhang et al.

British Columbia Court of Appeal

Huddart, Lowry and Frankel, JJ.A.

October 19, 2010.

Summary:

In 2001, Falun Gong practitioners set up banners and a makeshift shelter on a portion of a Vancouver street, in front of the Chinese Consulate, and began a hunger strike that evolved into an indefinite protest vigil. More permanent structures were erected. The meditation hut and the billboard were covered with photos of human rights abuses, posters and painted messages. Pedestrian traffic was not impeded. In 2006, the City petitioned for an injunction requiring the Falun Gong to remove the structures because they were contravening s. 71 of the Street and Traffic Bylaw. In its effect, s. 71 precluded the use of a structure for any political expression on streets, while leaving with City Council a discretion to make exceptions. The City had established a policy for structures having commercial or artistic expression as their purpose, but not for structures having political expression. The Falun Gong requested a constitutional exemption from the application and enforcement of the Bylaw.

The British Columbia Supreme Court, in a decision reported at [2009] B.C.T.C. Uned. 84, granted the injunction to the City, finding no exceptional circumstances to prevent enforcement of s. 71; the Bylaw was not unconstitutional as offensive to s. 2(b) of the Charter; and the City was not using Bylaw enforcement for an improper purpose. The Falun Gong were ordered to remove the structures and were prohibited from constructing any new ones without first obtaining the written permission of the City Engineer. The Falun Gong appealed.

The British Columbia Court of Appeal concluded that the chambers judge erred in finding the Falun Gongs' method of expression removed the protection of s. 2(b), and in further finding the City's limitation on the use of a structure for the purpose of political expression was justified under s. 1 of the Charter. The City's effective ban on the use of a structure for political expression did not meet the minimal impairment requirement explained in R. v. Oakes (1986) (S.C.C.). Consequently, the court found s. 71 of no force and effect insofar as it was inconsistent with freedom of expression. "This, however, does not mean the City is precluded from prohibiting the kind of structures erected by the appellants if it sees fit to do so in a manner that is constitutionally sound".

Civil Rights - Topic 1845

Freedom of speech or expression - Limitations on - Resulting from regulation of streets - Falun Gong practitioners alleged that the prohibition on structures in s. 71 of the City of Vancouver Bylaw, entitled "Regulating the use of Streets", imposed restrictions on their freedom of political expression - The British Columbia Court of Appeal began with an understanding of the Bylaw, including its purpose - The chambers judge correctly stated that s. 71 of the Bylaw was "concerned with the orderly administration of public space for the benefit of the public at large and with balancing competing interests existing on that space ... These uses compete and require constant and effective regulation. Such regulation is one of the primary functions of a municipality. As well, the City has a valid and important role in preserving the aesthetic appearance of streets through regulation of permanent encroachments" - Section 71 imposed an absolute prohibition on certain activities and then provided for exemptions or exceptions - City Council had established policies that authorized permits for commercial or artistic expression, but had not established a written policy for the issuance of permits for structures having political expression as their purpose - That City Council had not done so was the principal complaint of the Falun Gong - In the end result, the court found s. 71 of no force and effect insofar as it was inconsistent with freedom of expression - See paragraphs 7 to 17.

Civil Rights - Topic 1845

Freedom of speech or expression - Limitations on - Resulting from regulation of streets - The Falun Gong practitioners alleged that the prohibition on structures in s. 71 of the City of Vancouver's Bylaw, entitled "Regulating the use of Streets", imposed restrictions on their freedom of political expression - That the Chinese government used its considerable resources to express its opposition to the Falun Gong was not challenged - The chambers judge granted the City an injunction, finding, inter alia, that the City was not using Bylaw enforcement for an improper purpose - The British Columbia Court of Appeal agreed that the evidence did not support a finding that the City used the Bylaw to act for an improper purpose, i.e. that, by deciding to enforce s. 71, it "knuckled under" to the Chinese government's pressure (to rid the street of the Falun Gong structures in front of its Vancouver consulate) because of trade and tourism concerns - "[T]he record supports the chambers judge's conclusion that the City followed its normal course of graduated enforcement efforts before seeking an order to remove the billboard and hut, in part because of its acknowledgement of the political nature of the expressive content of the Falun Gong activity and its participants' expressive rights under the Charter" - See paragraph 27.

Civil Rights - Topic 1845

Freedom of speech or expression - Limitations on - Resulting from regulation of streets - The City of Vancouver petitioned for an injunction requiring the Falun Gong practitioners to remove their billboard and meditation hut set up on a portion of the City's street, in front of the Chinese Consulate, because they were contravening s. 71 of the Street and Traffic Bylaw - The practitioners requested a constitutional exemption from the application and enforcement of the Bylaw - The British Columbia Court of Appeal stated that, as the chambers judge recognized, the question of whether s. 71 of the Bylaw infringed s. 2(b) of the Charter was to be answered by an analysis following the approach developed in decisions which had "overtaken this Court's reasoning in Cheema v. Ross (1991)", namely, whether the expression at issue had expressive content, thereby bringing it within s. 2(b) protection; second, if so, did the method or location of that expression remove that protection; and third, if the expression was protected by s. 2(b), did the Bylaw infringe that protection, either in purpose or effect - See paragraphs 30 and 31.

Civil Rights - Topic 1845

Freedom of speech or expression - Limitations on - Resulting from regulation of streets - The City of Vancouver petitioned for an injunction requiring the Falun Gong practitioners to remove their billboard and meditation hut set up on a portion of the City's street in front of the Chinese Consulate, because they were contravening s. 71 of the Street and Traffic Bylaw - The practitioners requested a constitutional exemption from the application and enforcement of the Bylaw - The City did not agree with the chambers judge's finding that the structures had expressive content - The British Columbia Court of Appeal, as to the scope of what constituted "expression", found "persuasive the reasoning of Linden, J.A., for the Federal Court of Appeal in Weisfeld and cannot distinguish the Falun Gong's protest vigil from the peace camp Mr. Weisfeld established on Parliament Hill. Like the tents and tables he placed there, the billboard and meditation hut were 'part and parcel of the manner' in which the Falun Gong participants chose to express themselves and as deserving of protection. The chambers judge did not err in so finding" - See paragraph 32.

Civil Rights - Topic 1845

Freedom of speech or expression - Limitations on - Resulting from regulation of streets - Falun Gong practitioners set up a medication hut and billboard in front of the Chinese Consulate in the City of Vancouver, on a portion of the City's street - The City petitioned for an injunction requiring the Falun Gong to remove the structures because they were contravening s. 71 of the Street and Traffic Bylaw - The practitioners requested a constitutional exemption from the application and enforcement of the Bylaw - The chambers judge found that the structures were incompatible with the street's function and thus excluded from protection under s. 2(b) of the Charter because of the "method" of expression - The British Columbia Court of Appeal held that the chambers judge erred in so finding - "The question is not whether the form of the expression is compatible with the function of the street, but whether free expression in the chosen form would undermine the values the guarantee is designed to promote ... If the form (or type or method) of expression is 'part and parcel' or integral to the chosen manner of expression ... it is difficult to see how it can be excluded from protection because an alternative method is less troubling to those charged with administering public property and its competing uses" - See paragraphs 33 to 37.

Civil Rights - Topic 1845

Freedom of speech or expression - Limitations on - Resulting from regulation of streets - The City of Vancouver petitioned for an injunction requiring the Falun Gong practitioners to remove their billboard and mediation hut set up on a portion of the City's street, in front of the Chinese Consulate, because they were contravening s. 71 of the Street and Traffic Bylaw - The practitioners requested a constitutional exemption from the application and enforcement of the Bylaw - The chambers judge granted the injunction - On appeal, the City submitted that unregulated construction of permanent structures was not consistent with the Charter values of s. 2(b) - The British Columbia Court of Appeal stated that the submission fit better within the analysis under s. 1 of the Charter as part of the balancing process it required - "It is, after all, the City's Council who instituted a complete prohibition on the use of structures on its streets without any mediating policy for exemptions or exceptions to accommodate political expression, while nonetheless establishing policies for the use of structures to accommodate commercial and aesthetic expression ... [I]t cannot be said that any and all structures encroaching on City streets without obstructing either pedestrian or vehicular traffic per se subvert democratic discourse" - See paragraph 39.

Civil Rights - Topic 1845

Freedom of speech or expression - Limitations on - Resulting from regulation of streets - Falun Gong practitioners set up a medication hut and billboard in front of the Chinese Consulate in the City of Vancouver, on a portion of the City's street - The City of Vancouver petitioned for an injunction requiring the Falun Gong to remove their structures, because they were contravening s. 71 of the Street and Traffic Bylaw - The practitioners requested a constitutional exemption from the enforcement of the Bylaw - The chambers judge granted the injunction - The British Columbia Court of Appeal stated that neither the method nor location of the expressive activity required removing the protections of s. 2(b) - "The structures at issue support the values of democratic discourse and self-fulfillment. The messages posted on the structures express the practitioners' opposition to some actions of the Chinese government, and the hut expresses their commitment to the practice of meditation as part of their religious identity. The messages have a political nature ... Public streets are, as they have been historically, spaces in which political expression takes place and where structures are maintained ... [T]he presence of a structure on a street does not undermine the values of s. 2(b)" - See paragraphs 40 and 41.

Civil Rights - Topic 1845

Freedom of speech or expression - Limitations on - Resulting from regulation of streets - The City of Vancouver petitioned for an injunction requiring the Falun Gong practitioners to remove their billboard and meditation hut set up on a portion of the City's street in front of the Chinese Consulate, because they were contravening s. 71 of the Street and Traffic Bylaw - The Falun Gong requested a constitutional exemption from the enforcement of the Bylaw - The chambers judge concluded that s. 71 constituted a limit on the Falun Gong's expressive freedom under s. 2(b) of the Charter because its enforcement would have the effect of preventing them from expressing themselves in the manner of their choice - The British Columbia Court of Appeal agreed - "The Bylaw places a prohibition on structures on city streets. No Bylaw or policy exists to grant exceptions for a political structure and neither Council nor the City Engineer considered granting one in the instant case. The Bylaw thus forms a prohibition against the practitioners' chosen form of expression, so the Bylaw must infringe s. 2(b)" - The chambers judge erred, however, in finding that the City had met the onus placed on it by s. 1 of the Charter - See paragraphs 46 to 49.

Civil Rights - Topic 1845

Freedom of speech or expression - Limitations on - Resulting from regulation of streets - The chambers judge concluded that s. 71 of the City of Vancouver's Street and Traffic Bylaw constituted a limit on the Falun Gong's expressive freedom under s. 2(b) of the Charter because its enforcement would have the effect of preventing them from expressing themselves in the manner of their choice - The ultimate issue on appeal was whether the chambers judge erred in finding the City had met the onus placed on it by s. 1 of the Charter - The British Columbia Court of Appeal stated that "I doubt anyone would disagree that the streets are a finite public resource, whose use must be regulated, and that, as civic matters are currently allocated, the appropriate manager is the municipal government. It is self-evident that the right and freedom to use public streets cannot be absolute and that they have a multitude of competing uses. This is a case, then, where it has become necessary to limit rights and freedoms because their exercise 'would be inimical to the realization of collective goals of fundamental importance'" - In the end result, the court concluded that the chambers judge erred in finding the City's limitation was justified under s. 1 of the Charter - See paragraph 50.

Civil Rights - Topic 1845

Freedom of speech or expression - Limitations on - Resulting from regulation of streets - The City of Vancouver petitioned for an injunction requiring the Falun Gong to remove their billboard and meditation hut set up on a portion of the City's street, in front of the Chinese Consulate, because they were contravening s. 71 of the Street and Traffic Bylaw - Section 71(1) provided that "No person shall build, construct, place, maintain, occupy, ... (... except with the approval of and subject to such conditions as shall be determined by the Council) in any street, any structure, object, substance, or thing which is an obstruction to the free use of such street, or which may encroach thereon ... without first obtaining therefore the written permission of the City Engineer" - The practitioners requested a constitutional exemption - The ultimate issue on the appeal was whether the chambers judge erred in finding the City had met the onus placed on it by s. 1 of the Charter - The parties were divided on the threshold issue of whether the Bylaw was "prescribed by law" - The British Columbia Court of Appeal was satisfied that s. 71 met the threshold test because it was capable of interpretation - "It leaves the reader without doubt as to what conduct is prohibited ... The fact Council has not chosen to permit the use of structures to facilitate political expression may suggest overbreadth ... but it does not turn a clear articulation of the limit s. 71 creates to a Charter right into a law so obscure it cannot be understood by those to whom it applies or by those called upon to apply it" - See paragraphs 52 to 58.

Civil Rights - Topic 1845

Freedom of speech or expression - Limitations on - Resulting from regulation of streets - Falun Gong practitioners challenged the validity of s. 71 of the City of Vancouver's Street and Traffic Bylaw - The chambers judge concluded that s. 71 constituted a limit on the Falun Gong's expressive freedom because its enforcement would have the effect of preventing them from expressing themselves in the manner of their choice - The ultimate issue on the appeal was whether the judge erred in finding the City had met the onus placed on it by s. 1 of the Charter - The parties were divided on whether the objective of s. 71 was pressing and substantial - The British Columbia Court of Appeal accepted the City's submission that the management of competing uses of public streets required regulation - "[T]he balancing of the numerous claims on users of the street requires a bylaw regulating those uses. Implicit in that balancing function is the need to regulate the placement of structures, because they may effectively preclude competing uses, impose dangers to other users, and affect the aesthetic appearance of the street" - In the end result, however, the court concluded that the chambers judge erred in finding the City's limitation was justified under s. 1 - See paragraph 59.

Civil Rights - Topic 1845

Freedom of speech or expression - Limitations on - Resulting from regulation of streets - The City of Vancouver petitioned for an injunction requiring Falun Gong practitioners to remove their structures from a portion of the City's street in front of the Chinese Consulate, because they were contravening s. 71 of its Street and Traffic Bylaw - The chambers judge found that the essential objective of s. 71 was to prohibit the unregulated construction of structures on public streets (rational connection) - The British Columbia Court of Appeal agreed that the limit was related to the City's goal of regulating the placement of structures on public streets - "Whether another scheme is available that would accomplish the City's objective is not the question at this stage. The question is whether it is reasonable to suppose the imposition of the limit may further Council's goal" - In the end result, the court concluded that the chambers judge erred in finding the City's limitation was justified under s. 1 of the Charter - See paragraphs 60 and 61.

Civil Rights - Topic 1845

Freedom of speech or expression - Limitations on - Resulting from regulation of streets - Section 71(1) of the City of Vancouver's Street and Traffic Bylaw provided that "No person shall build, construct, place, maintain, occupy, ... (... except with the approval of and subject to such conditions as shall be determined by the Council) in any street, any structure, object, substance, or thing which is an obstruction to the free use of such street, or which may encroach thereon ... without first obtaining therefore the written permission of the City Engineer" - The British Columbia Court of Appeal, as part of its proportionality analysis ("minimal impairment"), stated that the choice not to have a policy permitting the regulated use of a structure for political expression did not fall within the range of reasonable alternatives open to City Council - "[T]he Bylaw maintains a general prohibition subject to Council's unfettered discretion to mete out individual exemptions" - No evidence or argument was put forward as to why the City could not develop a policy allowing for the administrative regulation of political expression, comparable to those in place for commercial and artistic expression - By choosing to maintain a complete ban, s. 71 was rendered unconstitutional and of no force or effect - It could not be said that there was not a more reasonably tailored regulatory scheme - See paragraphs 62 to 69.

Civil Rights - Topic 1845

Freedom of speech or expression - Limitations on - Resulting from regulation of streets - Section 71(1) of the City of Vancouver's Street and Traffic Bylaw provided that "No person shall build, construct, place, maintain, occupy, ... (... except with the approval of and subject to such conditions as shall be determined by the Council) in any street, any structure, object, substance, or thing which is an obstruction to the free use of such street, or which may encroach thereon ... without first obtaining therefore the written permission of the City Engineer" - The British Columbia Court of Appeal held that the Bylaw was unconstitutionally impairing of the appellants' right to free expression - The court also considered the final question under s. 1 of the Charter, namely, whether the overall effects of the law on the appellants were disproportionate to the City's objective - The court was persuaded the "inconvenience" the appellants incurred from not being able to use a structure (a billboard and a mediation hut) to aid their expressive activity outweighed the little benefit to the City - The Bylaw was thus also unconstitutionally disproportionate - See paragraphs 70 to 75.

Civil Rights - Topic 1850.7

Freedom of speech or expression - Limitations on - Government property - [See fifth, sixth and seventh Civil Rights - Topic 1845 ].

Civil Rights - Topic 1850.8

Freedom of speech or expression - Limitations on - Political activities - [See all Civil Rights - Topic 1845 ].

Civil Rights - Topic 1863

Freedom of speech or expression - Denial of - What constitutes - [See first Civil Rights - Topic 1845 ].

Civil Rights - Topic 2062

Freedom of thought, belief or opinion - Denial of - What constitutes - [See first Civil Rights - Topic 1845 ].

Civil Rights - Topic 8316

Canadian Charter of Rights and Freedoms - General - Application - Proportionality test - [See thirteenth and fourteenth Civil Rights - Topic 1845 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See tenth, thirteenth and fourteenth Civil Rights - Topic 1845 ].

Civil Rights - Topic 8361.1

Canadian Charter of Rights and Freedoms - Denial of rights - Effect of - [See Municipal Law - Topic 3999 ].

Civil Rights - Topic 8375

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Damages - [See Civil Rights - Topic 8380.8 ].

Civil Rights - Topic 8380.2

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Declaration of statute invalidity - [See Civil Rights - Topic 8380.8 ].

Civil Rights - Topic 8380.8

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Statute deemed inapplicable (incl. doctrine of constitutional exemption) - For the denial of their s. 2(b) Charter rights, the Falun Gong (appellants) asked for (a) dismissal of the City's application for an injunction; (b) a declaration that the street and traffic bylaw-in-issue was of no force and effect based on s. 52 of the Constitution Act, 1982; and (c) damages under s. 24(1) of the Charter "for the unjustifiable infringement of the Appellants' freedom of expression" - The British Columbia Court of Appeal declared the bylaw of no force and effect insofar as it was inconsistent with the Charter - As to the claim for damages, there was no improper purpose to the City's enforcement, nor was the court persuaded that the loss of an opportunity to convey a political message sounded in damages - "Such an award would speak more to punishment in the absence of deliberate misconduct and be inappropriate on the facts of this case" - Further, "absent threshold misconduct, an action for damages under s. 24(1) of the Charter cannot be combined with an action for invalidity based on s. 52 of the Constitution Act, 1982" - As the City requested, the court suspended the effect of the declaration for a period of six months - See paragraphs 76 to 81.

Civil Rights - Topic 8380.15

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Injunctions (incl. dismissal of application for) - The City of Vancouver obtained a removal order requiring the Falun Gong to remove their structures because they were contravening its Street and Traffic Bylaw - The City also applied for an injunction prohibiting the Falun Gong from constructing any new structures on the street without first obtaining the written consent of the City Engineer - For the denial of their s. 2(b) Charter rights, the Falun Gong continued to seek dismissal of the City's injunction application - However, the order to remove the structures had been made, the Falun Gong's request for a stay of proceedings had been dismissed, and the removal of the structures effected - The British Columbia Court of Appeal stated that, because the structures were no longer on the street, the relief sought by the Falun Gong from the removal order was moot - That aspect of the injunction was spent and no longer operated - As for the aspect of the injunction prohibiting the practitioners from erecting any new structures, the City did not seek to have it remain in force in the event that its request for a suspension of the declaration of invalidity was granted - Accordingly, the court set it aside - "The appellants remain free to apply under the current Bylaw for permission or approval of a protest structure by the City Council or City Engineer, subject to the invalidation of s. 71 after six months, or until the Bylaw or policies are amended by the City in the interim. Until that time or such a change, the erection of such structures remains against the law" - See paragraphs 82 to 84.

Civil Rights - Topic 8479

Canadian Charter of Rights and Freedoms - Interpretation - Regulatory matters - [See ninth Civil Rights - Topic 1845 ].

Municipal Law - Topic 3779

Bylaws - Particular bylaws (incl. scope of) - Sidewalk obstruction bylaw - [See first Civil Rights - Topic 1845 ].

Municipal Law - Topic 3983

Bylaws - Enforcement or prosecution - Injunction (incl. cease and desist or compliance order) - [See Civil Rights - Topic 8380.15 ].

Municipal Law - Topic 3999

Bylaws - Enforcement or prosecution - Appeals - In the City of Vancouver, Falun Gong practitioners set up a billboard and a meditation hut in front of the Chinese Consulate, on a portion of the street - Pedestrian traffic was not impeded - The City petitioned for an injunction requiring the Falun Gong to remove their structures because they were contravening s. 71 of the Street and Traffic Bylaw - The Falun Gong requested a constitutional exemption - The chambers judge granted the injunction - The British Columbia Court of Appeal concluded that the chambers judge erred in finding the Falun Gongs' method of expression removed the protection of s. 2(b) of the Charter, and in further finding the City's limitation on the use of a structure for the purpose of political expression was justified under s. 1 of the Charter - The City's effective ban on the use of a structure for political expression did not meet the minimal impairment requirement - The Bylaw was also unconstitutionally disproportionate - Consequently, the court found s. 71 of no force and effect insofar as it was inconsistent with freedom of expression - "This, however, does not mean the City is precluded from prohibiting the kind of structures erected by the appellants if it sees fit to do so in a manner that is constitutionally sound" - See paragraph 6.

Cases Noticed:

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, appld. [para. 6].

Weisfeld v. Canada (1994), 171 N.R. 28; 116 D.L.R.(4th) 232 (F.C.A.), appld. [para. 20].

Committee for the Commonwealth of Canada et al. v. Canada, [1991] 1 S.C.R. 139; 120 N.R. 241, refd to. [para. 20].

Irwin Toy Ltd. v. Québec (Procureur général), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2, appld. [para. 21].

British Columbia (Minister of Water, Land and Air Protection) et al. v. Information and Privacy Commissioner (B.C.) et al. (2005), 214 B.C.A.C. 158; 353 W.A.C. 158; 2005 BCCA 368, refd to. [para. 24].

Guide Outfitters Association v. Information and Privacy Commissioner (B.C.) - see British Columbia (Minister of Water, Land and Air Protection) et al. v. Information and Privacy Commissioner (B.C.) et al.

British Columbia (Minister of Environment, Lands and Parks) v. Alpha Manufacturing Inc. et al. (1997), 96 B.C.A.C. 193; 155 W.A.C. 193; 150 D.L.R.(4th) 193 (C.A.), refd to. [para. 28].

Fahlman v. Community Living B.C. et al. (2007), 234 B.C.A.C. 264; 387 W.A.C. 264; 2007 BCCA 15, refd to. [para. 28].

Montreal (City) v. 2952-1366 Québec Inc., [2005] 3 S.C.R. 141; 340 N.R. 305; 2005 SCC 62, appld. [para. 30].

Cheema v. Ross et al. (1991), 2 B.C.A.C. 92; 5 W.A.C. 92; 82 D.L.R.(4th) 213 (C.A.), refd to. [para. 31].

Canadian Federation of Students (B.C.) et al. v. Greater Vancouver Transportation Authority et al. (2009), 389 N.R. 98; 272 B.C.A.C. 29; 459 W.A.C. 29; 2009 SCC 31, refd to. [para. 34].

R. v. Breeden (J.L.) (2009), 277 B.C.A.C. 164; 469 W.A.C. 164; 2009 BCCA 463, leave to appeal dismissed (2010), 407 N.R. 386, refd to. [para. 34].

Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569; 218 N.R. 241, refd to. [para. 40].

R. v. Nova Scotia Pharmaceutical Society et al. (No. 2), [1992] 2 S.C.R. 606; 139 N.R. 241; 114 N.S.R.(2d) 91; 313 A.P.R. 91; 93 D.L.R.(4th) 36, refd to. [para. 54].

Osborne, Millar and Barnhart et al. v. Canada (Treasury Board) et al., [1991] 2 S.C.R. 69; 125 N.R. 241, refd to. [para. 55].

Hutterian Brethren of Wilson Colony et al. v. Alberta, [2009] 2 S.C.R. 567; 390 N.R. 202; 460 A.R. 1; 462 W.A.C. 1; 2009 SCC 37, appld. [para. 61].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1995] 3 S.C.R. 199; 187 N.R. 1, refd to. [para. 66].

R. v. Guignard (R.), [2002] 1 S.C.R. 472; 282 N.R. 365; 2002 SCC 14, refd to. [para. 68].

Rice, P.C.J. v. New Brunswick, [2002] 1 S.C.R. 405; 282 N.R. 201; 245 N.B.R.(2d) 299; 636 A.P.R. 299; 2002 SCC 13, refd to. [para. 77].

Mackin v. New Brunswick (Minister of Finance) - see Rice, P.C.J. v. New Brunswick.

Ward v. Vancouver (City) et al. (2010), 404 N.R. 1; 290 B.C.A.C. 222; 491 W.A.C. 222; 2010 SCC 27, refd to. [para. 79].

R. v. Ferguson (M.E.), [2008] 1 S.C.R. 96; 371 N.R. 231; 425 A.R. 79; 418 W.A.C. 79; 2008 SCC 6, refd to. [para. 80].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 2(b) [para. 5].

Vancouver (City) Bylaws, Street and Traffic Bylaw, Bylaw No. 2849, sect. 71 [para. 2].

Counsel:

J. Arvay, Q.C., and C. Ansley, for the appellants;

T. Zworski, for the respondent.

This appeal was heard at Vancouver, British Columbia, on March 29-30, 2010, before Huddart, Lowry and Frankel, JJ.A., of the British Columbia Court of Appeal. In reasons written by Huddart, J.A., the Court of Appeal delivered the following judgment, dated October 19, 2010.