Vancouver (City) v. Zhang

Vancouver (City) v. Zhang

The Court held s.71 is content-neutral but its absolute prohibition on political structures, combined with absence of any administrative policy or guidance for exemptions, infringes s.2(b) and fails s.1 minimal impairment and proportionality; accordingly s.71 is of no force and effect insofar as inconsistent with the Charter, but the declaration is suspended for six months to allow the City to adopt a constitutionally compliant regulatory scheme; the removal injunction is set aside and damages are not awarded.

Citation
2010 BCCA 450
Parties
Respondent (petitioner): City of Vancouver; Appellants (respondents): Sue Zhang; John Doe; Jane Doe; Other Persons Unknown erecting, maintaining or occupying structures on City of Vancouver street in the 3300 block of Granville Street
Court
British Columbia Court of Appeal
Jurisdiction
Canada
Judgment Date
19 October 2010
Procedural Posture
Charter Challenge; Injunction; Municipal by Law Enforcement / Appeal From the Supreme Court of British Columbia (court of Appeal Decision)
Outcome
Appeal allowed in part: injunction set aside; s.71 declared of no force and effect to the extent inconsistent with the Charter; declaration suspended for six months; no damages awarded; costs to be determined following submissions.
Legal Topics
Freedom of Expression, Charter S.2(b), Section 1 Oakes Test, Minimal Impairment, By Law Invalidity, Injunction, Prosecutorial Discretion, Remedies (declaration, Suspension, Damages)
Source Language
English
Constitutional Law Administrative Law Municipal Law Civil Procedure Freedom of Expression Charter S.2(b) Section 1 Oakes Test Minimal Impairment +4 more

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Parties

City of Vancouver

Respondent (petitioner)

Sue Zhang; John Doe; Jane Doe; Other Persons Unknown erecting, maintaining or occupying structures on City of Vancouver street in the 3300 block of Granville Street

Appellants (respondents)

Procedural Posture

Charter Challenge; Injunction; Municipal by Law Enforcement / Appeal From the Supreme Court of British Columbia (court of Appeal Decision)

Legal Issues

  1. 1 Whether s.71 of Vancouver Street and Traffic By-law infringes s.2(b) of the Charter
  2. 2 Whether the method or location of expression (structures on a street) removes s.2(b) protection
  3. 3 Whether the City enforced s.71 for an improper purpose (targeting message)

Ratio Decidendi

The Court held s.71 is content-neutral but its absolute prohibition on political structures, combined with absence of any administrative policy or guidance for exemptions, infringes s.2(b) and fails s.1 minimal impairment and proportionality; accordingly s.71 is of no force and effect insofar as inconsistent with the Charter, but the declaration is suspended for six months to allow the City to adopt a constitutionally compliant regulatory scheme; the removal injunction is set aside and damages are not awarded.

Court Disposition

Appeal allowed in part: injunction set aside; s.71 declared of no force and effect to the extent inconsistent with the Charter; declaration suspended for six months; no damages awarded; costs to be determined following submissions.

Orders

  • Declare section 71 of the Vancouver Street and Traffic By-law of no force and effect insofar as it is inconsistent with the Canadian Charter of Rights and Freedoms
  • Suspend the operation of that declaration for six months to permit the City to enact constitutional regulations or policies