Amendments to Sign Bylaw Leads to Constitutional Challenge and Allegations of Bad Faith

Kaps v City of Surrey, 2022 BCSC 1191 (“Kaps“) is a recent decision of the BC Supreme Court which highlights the importance of ensuring that prohibitions in a sign bylaw are clear and concise in meaning so as to avoid infringing the constitutional protection for  freedom of expression. The Kaps decision also reiterated the evidentiary burden that must be met when a person alleges that a bylaw was enacted for an improper motive or in bad faith.

The Challenged Bylaw

The court proceeding in Kaps was commenced by members of a community group known as “Keep the RCMP In Surrey” (“KTRIS”) which opposed the City’s decision to replace the RCMP in Surrey with a local police force and which dispersed and erected signs promoting the KTRIS cause. The Mayor of Surrey and four other Surrey Councillors campaigned under the “Safe Surrey Coalition” which favoured the replacement of the RCMP with a municipal police force.

The petitioners alleged that November 2021 amendments to the Surrey Sign Bylaw (the “2021 Amendments”) were inconsistent with their rights under section 2(b) of the Canadian Charter of Rights and Freedoms (the “Charter”) and were of no force and effect.

In particular, the petitioners claimed that the 2021 Amendments combined to ban signage on private property related to political issues at any time outside the specified time periods listed in the Sign Bylaw and effectively banned all KTRIS signage on private property.

Prior to the 2021 Amendments, the City’s Sign Bylaw allowed one political sign under a certain size to be erected on private property without a permit, provided that it was removed 14 days after an election and did not interfere with sightlines for vehicles and pedestrians.

However, the 2021 Amendments operated to require that political signs only be erected for the purpose of an election and only for 14-day periods around the election.  The 2021 Amendments also expanded the definition of “political sign” as follows:

Political Sign means a sign erected to promote the voting at, support of or opposition of an issue in at a municipal, provincial or federal election, referendum, plebiscite, initiative petition, or recall petition; or the election, support or disapproval of a particular candidate or political organization; or the voting for, or support or opposition of a political particular cause at a municipal, provincial or federal issue election;

Potential Infringement of Freedom of Expression

In response to the petitioners’ claim that the 2021 Amendments effectively banned all KTRIS signage on private property, the City argued that 2021 Amendments to the Sign Bylaw was not intended to ban all political signs or restrict or impair freedom of expression, but was intended to “merely provide clarity on the dates and types of signs which fall within the permitted exemption”. In essence, the City argued that it intended to make the 2021 Amendments which restricted the placement of political signs to 14-day periods applicable to only certain political signs (e.g. campaign signs).

The BC Supreme Court accepted the City’s stated intention for the 2021 Amendments, but held that in effect:

[t]he 2021 Amendments give rise to an ambiguity in the bylaw that arguably prohibits the posting of political signage on private property except during limited specified periods of time, and that such a restriction would infringe s. 2(b) of the Charter which guarantees the petitioners’ constitutional protection for freedom of, among other things, their political expression.

The City did not offer any argument as to why such infringement would be “saved”, pursuant to section 1 of the Charter, as a reasonable limit that could be “demonstrably justified in a free and democratic society”.

Accordingly, the Court declared that a key section of the Sign Bylaw which was replaced through the 2021 Amendments must be interpreted and enforced by the City in accordance with the City’s stated intention, and that City must amend the Sign Bylaw to reflect that intention within 3 months of the Court decision.

The Claim of Improper Motive and the Political Context

In addition to their Constitutional challenge, the petitioners sought an alternative order pursuant to the Judicial Review Procedure Act that the 2021 Amendments were adopted in bad faith and for an improper purpose. The petitioners therefore sought an order that the 2021 Amendments were an illegal exercise of the City Council’s statutory powers (the “Improper Purpose Order”).

For context, the 2021 Amendments followed a series of events between the Mayor and Council and the KTRIS in September 2021. Specially, the petitioners and the Mayor had an interaction which led to the Mayor accusing the KTRIS of inflicting physical injury on the Mayor. The Judge noted that the Mayor had been charged with one count of public mischief which appeared to be in relation to this police report. Following the aforementioned interaction, on September 13, 2021, the Mayor brought forward and the council passed, without any notice, a resolution which prohibited the petitioners from physically attending Council meetings and public hearings. The resolution was rescinded unanimously in December 2021 and prior to the hearing of the petition.

The Court declined to make the inference from the “political context” that the 2021 Amendments were adopted “as part of a broader campaign to target, silence, and punish prominent political opponents, including members of KTRIS”. Instead, the Court held that there were other rational conclusions for the motivation for the amendments which did not include bad faith.

Due to a lack of evidence other than the political context, the court dismissed the allegations of bad faith or improper purpose.

Takeaway Points

The key takeaways from this case relate to careful drafting of bylaws. Local governments should ensure that the intended meaning or effect of bylaws is reflected in the language chosen. This includes using clear and concise language when drafting bylaws generally and when restricting certain actions.

Where local governments enforce a bylaw in accordance with the constitution, as Surrey did in this case, it does not save ambiguous drafting which can be read to infringe Charter rights.