A Blues-Singing Busker Gets No Satisfaction From The B.C. Supreme Court

In Regehr v. North Vancouver (City), 2014 BCSC 513, the Supreme Court of British Columbia considered a constitutional challenge to bylaw notices issued to a blues-singing busker for contraventions of the City of North Vancouver’s noise bylaw.  The Petitioner, Megan Regehr, is a singer known as “Babe Coal” who performs in a North Vancouver civic plaza with the use of a 10-watt amplifier.  As a result of complaints in the summer of 2012, the City issued a series of six bylaw notices for contravention of the City’s Noise Control Bylaw, 1987, No. 5819 (the “Bylaw”).  The offence was “making a prohibited noise with equipment” pursuant to section 302.1.2 of the Bylaw.

Ms. Regehr challenged the bylaw notices for infringing on her rights under the Canadian Charter of Rights and Freedoms.  Ms. Regehr challenged section 302.1.2 of the Bylaw on the basis that it violated her section 2(b) right to freedom of expression under the Charter. She further challenged the validity of the B.C. Local Government Bylaw Notice Enforcement Act, alleging that the Act, which allows for the adjudication of disputes outside the court system, violated her section 11(d) Charter rights to due process and a fair hearing.

Madam Justice Holmes heard the case and found in a rather circuitous way that the bylaw notices should be struck down on the basis that Ms. Regehr’s singing was not a “noise” under the Bylaw.  The Bylaw defines “noise” by a non-exhaustive three-part definition which includes: sounds that disturb the peace and enjoyment of the neighborhood; sounds that exceed a permitted level; or sounds listed in Schedule “B” to the Bylaw as objectionable or disturbing sounds.  The City argued that Ms. Regehr’s amplified singing was a “noise” pursuant to paragraph 9 of Schedule “B”, that states:

9.            Shouting, the use of megaphones or voice amplification equipment, the making of any other noise, noisy conduct by any person in or at any street, wharf, dock, pier or public place, is prohibited, save and except Peace Officers or Fire Fighters while in the conduct of their lawful duty.

The court held that this paragraph, properly interpreted, was only intended to encompass the spoken voice, not the singing voice.  Madam Justice Holmes arrived at this conclusion at paragraph 29 of the decision where she states:

“the immediate context for the reference to ‘voice amplification equipment’ appears to limit the phrase to the spoken voice.  The phrase appears immediately after reference to ‘shouting’ and ‘the use of megaphones,’ both of which generally involve the use of the spoken voice, and not the singing voice.”

She further concluded that in drafting the Bylaw, the City did not intend music or singing to be inherently or necessarily objectionable or disturbing, or it would have included it as a separate category in Schedule “B”, which it did not.  The court inferred that the drafters of the Bylaw intended that music or the singing voice would be regulated by other parts of the definition of “noise”, such as whether it exceeded allowable noise levels or disturbed the community.

With respect to the constitutional arguments, Madame Justice Holmes found it unnecessary to consider the arguments on the basis that the Bylaw did not support the alleged contraventions, however, she did comment that the constitutional challenges advanced by Ms. Regehr were not frivolous. With respect to the challenge to the B.C. Local Government Bylaw Notice Enforcement Act based on section 11(d) of the Charter, Madam Justice Holmes stated at paragraph 19 of the decision:

“it will turn in large part on whether, having been issued the bylaw notices, Ms. Regehr is “charged with an offence” such that s. 11 is engaged.  The jurisprudence concerning s. 11 of the Charter continues to develop, and at this stage the conclusion is not self-evident that the process under the Act is, as the Attorney General contends, a purely administrative one.  The Bylaw itself describes the infraction as an “offence”…

While not decided in this case, it is interesting to note that the court suggests there may be merit in such a challenge.  With an increasing number of local governments opting into bylaw adjudication, it seems likely that this is an issue that may come back before the courts.

Despite the bylaw notices being dismissed, Ms. Regehr is apparently not satisfied with the outcome. The Vancouver Sun reported on March 27, 2014, Ms. Regehr is saddened by the outcome of the trial and feels there is no justice in the court declining to consider her constitutional arguments.  We guess she’ll just have to keep singing the blues…