[1]               The appellants appeal a chamber judge’s decision dismissing their s. 2(b) Charter challenge to the respondent’s bylaw regarding a prohibition against vehicle signage: 2020 ABQB 521.

[2]                In 2012, the respondent functionally disallowed trailer signs by prohibiting signage that was contrary to its Land Use Bylaw, 60/2014. In 2019, it further amended the Land Use Bylaw to expressly prohibit “vehicle signs” in response to their continued proliferation. Foothills also passed Bylaw 46/2012, amending the Community Standards Bylaw 34/2009. The amendment prohibited the placement of any signage that is in contravention of the Bylaw. This functionally prohibited vehicles signs. On June 5, 2019, Foothills made the ban on Vehicle Signs explicit.

[3]               The consolidated Land Use Bylaw defines "vehicle signs" in section 9.24.1 as follows:

[4]               Section 9.24.10(a) of the consolidated Land Use Bylaw prohibits vehicle signs:

[5]               The appellants consist of individuals and an entity seeking to enforce their rights of personal as well as commercial expression: Gerrit and Jantje Top, who had their own signage on semi-trailers expressing personal and religious views; Spot Ads Inc., who is in the business of renting trailers for advertisement for profit; and Ross Martin and John Markiw, who allow semi-trailers and commercial signage to be displayed on their property for profit[1].

[6]               In the court below, the respondent conceded that the prohibition infringed the appellants’ rights of freedom of expression. While the prohibition was content neutral and had no express or oblique intention to suppress any particular message or speaker, it prohibited all forms of expression.

[7]               Under the framework of s. 1 of the Charter as set out in R v Oakes, 1986 CanLII 46 (SCC), [1986] 1 SCR 103, 26 DLR (4th) 200, the appellants did not dispute that the prohibition had a pressing and substantial objective, which was to protect the unique aesthetic appeal of the Foothills community from visual pollution and degradation. However, the parties disputed the remaining elements of the Oakes test: whether the prohibition was rationally connected to its objective; whether the prohibition minimally impaired the right to freedom of expression; and the balancing of the salutary and deleterious effects of the prohibition.

[8]               The chambers judge concluded at paragraph 3 that the prohibition was a reasonable limit under s. 1 of the Charter:

[9]               On appeal, the appellants raise some of the same issues and arguments as were considered and rejected by the chambers judge. While they allege numerous legal errors with the chamber judge’s application of the Oakes test, most of their complaints actually relate to factual findings or questions of mixed fact and law for which no legal error has been shown. As a result, deference is owed to the chambers judge’s conclusions on these issues.

[10]           For the reasons set out below, the appellants have not demonstrated an error warranting appellate intervention and their appeal is dismissed.

[11]           Before the chambers judge, the appellants argued the prohibition on vehicle signs was not rationally connected to its objective for three reasons:

[12]           The chambers judge rejected each of these reasons providing a detailed analysis and making several findings of fact that undermined much of the premise for the appellants’ arguments about the aesthetics of their vehicle signs.

[13]           The chambers judge found that signs attached to repurposed semi-trailers are qualitatively different from purpose-built advertising signs for two reasons:

[14]           He concluded that while the thoughtful reuse of materials is a laudable practice, “these ersatz billboards engage a sense of abandonment, industrial detritus, and improvisation born of economic necessity”: at paras 56-58. Additionally, the chambers judge was satisfied that where trailer units are older or heavily used compared to the trailers used by the appellants, their condition will be even less visually appealing: at para 59.

[15]           As it related to the respondent’s inconsistent approach and failure to prohibit sign-less trailers parked at the same location, the trial judge noted that this argument had some force, but ultimately he rejected it since the Charter does not insist on perfect regulatory coherence for a measure to pass muster under s. 1; the measure need only be reasonable and demonstrably justified: at para 63.

[16]           Additionally, he concluded at paragraph 64 that there is a distinction between trailers without signs and trailers with signs:

[17]           He was also persuaded that the respondent retains the authority to enforce clean-ups of unsightly properties, which would extend to “herds of unused trailers”. Further, there was no evidence before the court that disused trailers without signs proliferated to any degree in scenic roadside locations, or indeed anywhere other than appropriate storage locations: at paras 65-66.

[18]           Thus, while there was a legislative gap in the respondent's control over “trailer-based blight”, it did not suggest to the chambers judge that protection of the visual environment was not truly a pressing and substantial purpose, nor that the consolidated Land Use Bylaw advanced that purpose in an arbitrary or irrational way: at para 68.

[19]           Finally, the chambers judge rejected the appellants’ arguments about the appellants’ trailers being located along Highway No. 2, which in their view, was a more urbanized area of the municipality, and not a scenic route "placed in a picturesque county setting". In rejecting this argument, the chambers judge stated that “[a] municipality cannot be faulted for wanting to enhance the roadway on which most travellers encounter and experience its community”, relying on a series of Ontario Court of Appeal and Supreme Court of Canada cases involving Oakville’s signage bylaws: at paras 69-70.

[20]           Under the minimal impairment analysis, the chambers judge characterized the issue as whether prohibiting vehicle signage “impairs the right of citizens to communicate with one another more than reasonably necessary in the broader overall context of available expression”: at para 73. He reviewed the case law from the Supreme Court of Canada and numerous appellate courts concluding as follows at paragraph 85:

[21]           The chambers judge rejected the appellants’ contention that the prohibition acted as a total ban, finding that the prohibition against vehicle signage was a prohibition against a sub-class of large billboards: at para 88. He accepted that there were numerous alternatives to vehicle signage at paragraphs 91-92:

[22]           The chambers judge also relied on the alternative forms of signage to reject the appellants’ argument that some trailer signs could be allowed along the urbanized sections of Highway 2 without much impact on the visual environment: at para 93.

[23]           Overall, on the record before him, the chambers judge was satisfied that the respondent proved that numerous alternative forms of signage existed and that the restriction on this form of advertising was within the reasonable range of minimally impairing options available to it: at para 97.

[24]           Under the balancing of salutary and deleterious effects of the prohibition, the chambers judge concluded that:

[25]           At paragraph 99, the chambers judge concluded that the balance weighed in favour of the prohibition:

[26]           The appellants raise four grounds of appeal:

[27]           Under this ground of appeal, the appellants merely assert that the chambers judge’s decision minimized the strong Charter protection of freedom of expression and its values and too readily upheld the consolidated Land Use Bylaw’s limitation of the Tops’ s. 2(b) rights. However, besides selecting a few statements about commercial expression from the lengthy decision, they do not actually explain how the minimization occurs.

[28]           While the appellants frame this as an error in principle, it is really a challenge to the weighing of evidence, the exercise of which is entitled to deference on appeal: R v Morrison, 2012 ABCA 349 at para 19.

[29]           There was no minimization of the Tops’ rights. The chambers judge set out the scope of protection offered under s. 2(b) of the Charter to different types of expression, recognizing specifically that personal and political expression is core to s. 2(b) rights, justifying stronger protection than commercial expression: at paras 30-33.

[30]           Additionally, in undertaking the s. 1 analysis, the chambers judge set out the applicable law, and reviewed the relevant cases that dealt with both commercial expression and personal expression.  He specifically addressed each appellants’ specific circumstances in his conclusions on balancing the salutary and deleterious effects of the prohibition:

[31]           Finally, in granting a slightly different remedy to the Tops than the other appellants who are engaged in commerce, it is obvious that the chambers judge understood the different circumstances of these appellants and the impact of the prohibition on their personal interests.

[32]           No error has been shown with the chambers judge’s weighing of the evidence regarding the s. 2(b) rights. This ground of appeal is dismissed.

[33]           Under this ground of appeal, the appellants state in their factum:

[34]           They state that it was an error for the chambers judge to rely on reason, logic, and common sense to conclude that there was a factual difference between semi-trailer signs and other billboard signs. Further, they state that the evidence before the chambers judge did not establish a meaningful difference between the two. They assert that the evidence establishes that the attractiveness of their vehicle signs is equivalent to the conventional billboard signs the respondent permits.

[35]           Finally, they state it was inappropriate for the chambers judge to rely on his own subjective assessment of the visual appeal of vehicle signage.

[36]           It was not a legal error for the chambers judge to consider reason, logic, and common sense in analyzing the rational connection. Where it is impossible to provide concrete evidence, the connection may be established on the basis of reason or logic: Canadian Broadcasting Corp v Canada (Attorney General), 2011 SCC 2 at para 70. The visual appeal of the different mediums of signage is not something that can be established with “concrete” evidence.

[37]           Additionally, and as noted by the chambers judge, a court can supplement the evidence provided by the parties with common sense and inferential reasoning: Frank v Canada (Attorney General),  2019 SCC 1at para 64.

[38]           The rest of the appellants’ complaints relate to factual findings of the chambers judge for which deference is owed. The Supreme Court has confirmed that even in Charter cases, findings of fact, including findings of social or legislative facts, are reviewable on a standard of palpable and overriding error: Canada (Attorney General) v Bedford, 2013 SCC 72 at para 56.

[39]           There is no question that there are actual physical differences between vehicle signage and billboard signage or other purpose-build signage. Whether those differences are material was for the chambers judge to decide on the evidence.

[40]           The evidence consisted of pictures of some of the appellants’ vehicular signage, which, based on our review, is consistent with the chamber judge’s description of vehicle signage in his decision and the differences noted when compared to purpose-built signage generally.

[41]           The appellants have not demonstrated a palpable and overriding error in the chambers judge’s conclusion that vehicle signage is less aesthetically pleasing than purpose-built signage, they are merely asking this Court to substitute the chambers judge’s conclusion for their own.

[42]           The chambers judge was correct that the Charter does not require perfection to pass the rational connection test, only that the regulatory measures be reasonable and demonstrably justified: Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37 at para 37. In other words, to meet the rational connection test, the respondent is not required to eliminate all visual pollutants from the rural landscape before it can justifiably enact the consolidated Land Use Bylaw to address one of the threats.

[43]           By prohibiting vehicle signs along roadways, the consolidated Land Use Bylaw removes at least one type of unnatural imagery from the rural landscape. This limit furthers the respondent’s objective of maintaining the rural aesthetic. As the appellants conceded in their factum “[o]bviously, reason and logic point to the removal of signage generally contributing to the reduction of non-natural features and therefore the elimination of all Trailer Signs is, prima facie, rationally connected to improved rural aesthetics”.

[44]           As a result, the chambers judge did not err when he concluded that the consolidated Land Use Bylaw is rationally connected to its objective of maintaining the rural aesthetic and is not arbitrary.

[45]           At the minimal impairment stage of the Oakes test, the respondent was required to demonstrate that the consolidated Land Use Bylaw only impairs the right to free expression minimally. However, the respondent does not need to show that the consolidated Land Use Bylaw is the least restrictive means of achieving its ends. In other words, the respondent has met its burden if it can establish that the consolidated Land Use Bylaw is within the reasonable range of minimally impairing options available to the respondent to achieve its objectives.

[46]           What underlines much of the appellants’ arguments under this ground of appeal is whether the prohibition of vehicle signage is a total ban or a partial ban. The appellants concede that if it is a partial ban, then it is arguably minimally impairing.

[47]           The appellants assert that it is a total ban because it prohibits all forms of vehicle signage and that the chambers judge incorrectly characterized the ban as partial and only prohibiting one form of outdoor advertising. Therefore, they assert, he asked himself the wrong question.

[48]           They state that the prohibition is a total ban based on Ramsden v Peterborough (City), 1993 CanLII 60 (SCC), [1993] 2 SCR 1084, 106 DLR (4th) 233. They provide five alternative rules regulating the number, size, condition, location, and content of vehicle signs.

[49]           There is no question that there are several other signage options available to the appellants or others who want to express political, religious, commercial or any other type of views outside on rural property: billboards, fascia signs attached to buildings, free standing signs, roof signs, and even portable signs: s. 9.24 of the consolidated Land Use Bylaw. The consolidated Land Use Bylaw also permits residents to make applications for exemptions from its requirements: s. 4.2.

[50]           Additionally, there is an exception for certain types of vehicle signage – those on registered and operational motor vehicles or trailers used on a regular basis for the normal operation of the business, which contain advertising for the business for which the vehicle is being used. Finally, vehicle signage is permitted on roads that do not constitute a “highway” under the consolidated Land Use Bylaws.

[51]           For all these reasons, the prohibition on vehicle signs is not a total ban.

[52]           Ramsden is distinguishable because the prohibition in that case prevented people from hanging all posters, signs and other advertisements on all public property. In other words, there was no form of expression that could be displayed on public property. Here the appellants can, if they so chose and obtain the necessary approvals, present the same expression in much the same manner through a different medium. There is no outright prohibition on expression in any or all locations. Further, there is nothing quintessential about the medium of expression (in this case, messaging on semi-trailers) that is integral to the appellants’ expression.

[53]           The alternatives the appellants propose do not go to the heart of the respondent’s concern about visual pollution, which is the presence of vehicular signs. The chambers judge’s findings of fact about aesthetics will not be disturbed on appeal for the reasons set out above.

[54]           We agree with the chambers judge the proper characterization of the prohibition is as follows:  the prohibition “limits expression by requiring individuals who want to erect permanent signs on their land to use a permissible form of signage and obtain a development permit where necessary”: at para 37.

[55]           The appellants have not demonstrated a reviewable error with the chambers judge’s conclusion that the prohibition is within the reasonable range of minimally impairing options available to the respondent to achieve its objectives. This ground of appeal is dismissed.

[56]           As stated by the Supreme Court in Canada (Attorney General) v. JTI-Macdonald Corp., 2007 SCC 30 at para 45:

[57]           The appellants’ arguments under this ground of appeal are related to the issues raised in the first ground of appeal about alleged “minimizing” of the Tops’ freedom of expression of personal or religious views. As set out above, the chambers judge appropriately considered the separate freedom of expression right of each class of the appellants in the proportionality exercise.

[58]           Further, the restriction was content-neutral and as noted by the chambers judge at para 101:

[59]           The appellants’ balancing arguments are also predicated on a finding that the prohibition is a total ban, which as set out above, we reject.

[60]           The appellants also point to the chambers judge’s comments at paragraph 45 of the decision that “[c]itizens have a right not to be visually ‘shouted at’ by signs at every turn” as reflecting a legal error. They state that the law is the opposite: that citizens have the right to see signs because they have the right, protected by the constitution, to view expression, and they have the right to look away if they do not like what they see, relying on R v Sharpe, 2001 SCC 2.

[61]           While perhaps the chambers judge may have chosen more temperate language, we do not see the comments as materially impacting the proportionality assessment as the bulk of the analysis considered numerous arguments raised by the appellants and their personal circumstances.

[62]           Finally, they state that the respondent’s evidence of complaints about the vehicle signage was lacking. We have reviewed the record and there is a statement that the respondent received complaints, but that they were not produced. The appellants made no undertaking requests for the complaints themselves. As a result, while the evidence is thin, it is not entirely lacking.

[63]           Overall, the appellants arguments on proportionality ask this Court to reweigh the evidence. Absent an identifiable error of law or principle, this Court declines to do so.

[64]           The prohibition in the consolidated Land Use Bylaw seeks to improve the visual aesthetic of the municipality and does so by placing a restriction on the use of one type of medium for outdoor signage without creating any limits on the content of signs. We agree with the respondent that freedom of expression protects the messages on signs, which the appellants are permitted to erect subject to obtaining the necessary approvals, but it does not protect the parking of trailers, the strapping of vinyl to steel, or the ability to make money.

[65]           This ground of appeal is dismissed.