CASUAL LEGAL: Just Give me a Sign: “Trailer Signs” and the Charter

Just Give me a Sign: “Trailer Signs” and the Charter

By Michael E. Swanberg

Reynolds Mirth Richards Farmer LLP

AMSC Casual Legal Service Provider

Billboards posted on the sides of semi-trailers have become more common in recent years, especially near highways. In response, some municipalities have passed bylaws to prohibit the display of “trailer signs” next to highways. In a recent decision of the Court of Queen’s Bench of Alberta, the Court considered whether restricting the display of “trailer signs” on private property contravenes section 2(b) of the Charter, which is the right to freedom of expression.

In this case, the rural municipality passed a bylaw prohibiting the display of “trailer ads” on private property where the display of advertisements was not already permitted under the Land Use Bylaw. When the municipality served a stop order to require certain landowners to dismantle the trailer ads, the landowners responded by filing a Charter application, alleging the bylaw interfered with their Charter right to freedom of expression.

Charter challenges are subject to a two-stage test: the Court first determines whether the law infringes on the protected right, and if so, the Court then determines whether the infringement is justified in a free and democratic society. If the legislation fails this two-stage test, then it can be struck down and voided as unconstitutional.

The Court agreed “signs are an important and often used form of expression, both commercially and otherwise”, especially when individuals or companies do not have the financial means to communicate messages using more expensive methods. The municipality conceded that its bylaw violated the applicants’ section 2(b) Charter rights because it prevented them from posting these signs on their private property, which prevented this form of expression. This satisfied the “first stage” of the test.

However, the Court went on to find the bylaw was justified in a free and democratic society, and so was not invalid despite infringing on the applicants’ Charter rights. First, the Court agreed the bylaw addressed a pressing public objective – to reduce visual pollution and the frequency which motorists encounter signs adjacent to highways. The Court also agreed the bylaw was rationally connected to its objective by targeting a particular type of sign that was posing unique problems.

Importantly, the Court found the bylaw “minimally impaired” the right in question. The Court found the municipality had targeted one specific form of communication which was posing a legitimate problem, but otherwise did not prohibit expression via other types of signs, or other forms of expression. The presence of “numerous alternative forms of signage” signaled that the applicants’ Charter rights were being limited in a minimal way. Overall, the Court was satisfied the bylaw struck a proper balance between achieving a valid public objective while minimally restricting the Charter right to freedom of expression.

Overall, the Court was clear that municipalities may enact bylaws which have the effect of limiting the Charter right to freedom of expression, provided the bylaw achieves a legitimate public purpose, is rationally connected to that public purpose, minimally impairs the right in question, and is proportionate in the circumstances. When enacting bylaws which restrict the placement of billboards or other forms of expression, municipalities ought to keep in mind that they are required to strike a proper balance between achieving legitimate public purposes and otherwise respecting the Charter rights of individuals.

To access AMSC’s Casual Legal Helpline, AUMA members can call toll-free to 1-800-661-7673 or email casuallegal [at] amsc.ca (casuallegal[at]amsc[dot]ca) and reach the municipal legal experts at Reynolds Mirth Richards and Farmer LLP. For more information on the Casual Legal Service, please contact riskcontrol [at] auma.ca (riskcontrol[at]auma[dot]ca), or call 310-AUMA (2862) to speak to AUMA’s Risk Management staff. Any Regular or Associate member of the AUMA can access the Casual Legal Service.

DISCLAIMER: This article is meant to provide information only and is not intended to provide legal advice. You should seek the advice of legal counsel to address your specific set of circumstances. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this article to be outdated.