Chief Justice McLachlin and Deschamps J.
(delivered the judgment of the majority)
This appeal concerns the power of the city of Montréal (the “City”) to prohibit noise produced in the street by a loudspeaker located in the entrance of an establishment. Two arguments are raised, one based on the limits on the power to regulate and the other on the Canadian Charter of Rights and Freedoms (the “Canadian Charter”). For the reasons that follow, these arguments must be rejected.
In light of its scope, art. 9(1) of the By‑law concerning noise, R.B.C.M. 1994, c. B‑3 (the “By‑law”), was validly adopted by the City pursuant to its regulatory powers. Although this provision limits the freedom of expression guaranteed by s. 2(b) of the Canadian Charter, the limit is reasonable and can be justified within the meaning of s. 1 of the Charter.
2. Origins of the Case
The respondent operates a club featuring female dancers in a commercial zone of downtown Montréal, in a building fronting Ste‑Catherine Street. To attract customers and compete with a similar establishment located nearby, the respondent set up, in the main entrance to its club, a loudspeaker that amplified the music and commentary accompanying the show under way inside so that passers‑by would hear them. Around midnight on May 14, 1996, a police officer on patrol on Ste‑Catherine Street heard the music from a nearby intersection. The respondent was charged with producing noise that could be heard outside using sound equipment, in violation of arts. 9(1) and 11 of the By‑law. These provisions read as follows:
Summoned before the Municipal Court, the respondent contested the charge on the ground that arts. 9(1) and 11 of the By‑law were invalid. According to the respondent, the City, in adopting these provisions, exceeded its delegated power in respect of nuisances because the provisions defined as a nuisance an activity that was not a nuisance. The respondent also alleged that the provisions infringed its freedom of expression and that the infringement could not be justified.
Judge Massignani of the Municipal Court ruled that the noise emitted by the respondent’s establishment constituted a nuisance, that the city council had the power to define and prohibit nuisances under art. 520(72) of the Charter of the city of Montreal, 1960, S.Q. 1959‑60, c. 102 (the “Charter of the City”), and that neither the purpose nor the effect of the By‑law was to restrict freedom of expression ( Q.J. No. 2890 (QL)). In the Superior Court, Boilard J. quashed the conviction on the basis that the impugned provisions infringed the respondent’s freedom of expression; in his view, the By‑law impaired the underlying value of self‑fulfilment, and this infringement could not be justified ( Q.J. No. 7289 (QL)). The majority of the Court of Appeal upheld the decision to quash the conviction ( R.J.Q. 2986). Writing for the majority, Fish J.A., as he then was, concluded that the City had not shown the prohibited activity to be contrary to peace and order. He was also of the view that the City could not define an activity as a nuisance if it was not a nuisance and that the prohibition constituted an unjustified violation of the right to freedom of expression. Chamberland J.A., dissenting, would have set aside the Superior Court’s judgment because the City had the authority to adopt the provisions in issue pursuant to its powers to ensure peace and public order within its territory and to regulate nuisances. In his view, the infringement of the respondent’s freedom of expression was justified, since there were no less‑restrictive ways for the City to achieve its objective of eliminating noises that are harmful to the urban soundscape.
The debate is now before this Court. We will first address the administrative law argument before turning to the constitutional argument.
3.1 Does the City Have the Power to Adopt Art. 9(1) of the By‑law?
A two‑stage analysis must be carried out to establish whether the City has the power to adopt art. 9(1) of the By‑law. First, the scope of the provision must be defined. Second, it must be determined whether the City’s power includes the authority to adopt such a provision.
We find art. 9(1) of the By‑law to be valid. Our analysis will be based on our interpretation of the provision. The points on which we disagree with Binnie J., dissenting, explain how he arrives at a different result. We will begin by delimiting the scope of the impugned provision before considering the submissions based on the scope of the regulatory power.
3.1.1 Scope of Art. 9(1) of the By‑law
As this Court has reiterated on numerous occasions, “Today, there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (Rizzo & Rizzo Shoes Ltd. (Re),  1 S.C.R. 27, at para. 21, quoting E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87; see also Bell ExpressVu Limited Partnership v Rex,  2 S.C.R. 559, 2002 SCC 42, at para. 26). This means that, as recognized in Rizzo & Rizzo Shoes “statutory interpretation cannot be founded on the wording of the legislation alone” (at para. 21).
Words that appear clear and unambiguous may in fact prove to be ambiguous once placed in their context. The possibility of the context revealing a latent ambiguity such as this is a logical result of the modern approach to interpretation. The fact that a municipal by‑law is in issue rather than a statute does not alter the approach to be followed in applying the modern principles of interpretation: P.‑A. Côté, The Interpretation of Legislation in Canada (3rd ed. 2000), at p. 24.
Binnie J. concludes that the provision is unlawful for being overbroad. We do not share his view regarding the scope of the By‑law. Even though he discusses the recognized principles of interpretation, Binnie J. bases his analysis on the premise that art. 9(1) of the By‑law is clear and unambiguous.
In our view, although it appears to be clear, the provision is in fact ambiguous. In interpreting legislation, the guiding principle is the need to determine the lawmakers’ intention. To do this, it is not enough to look at the words of the legislation. Its context must also be considered.
Although he claims to follow the modern approach to the interpretation of legislative provisions, Binnie J. actually relies on the literal interpretation advocated by counsel for the City when questioned at the hearing. In our view, the Court must not limit itself to the submissions of counsel for the appellant. There are by‑laws like this one in force across Canada. Several have already been reviewed by appellate courts from angles that mirror in many respects the arguments raised in the case at bar: Cheema v Ross (1991), 82 D.L.R. (4th) 213 (B.C.C.A.); R. v Luciano (1986), 34 M.P.L.R. 233 (Ont. C.A.); R. v Hadden,  3 W.W.R. 661 (Sask. Q.B.), aff’d  1 W.W.R. 384 (C.A.).
What must be done in the case at bar is not to read down art. 9(1), but to determine whether, on a proper interpretation of the provision, it is limited to prohibiting noises that interfere with the peaceful enjoyment of the urban environment. In our view, taking the wording of the provision into account together with its purpose and its context, as is required by the established principles of statutory interpretation, resolves its ambiguity and enables its scope to be determined. Soft and inoffensive sounds are not prohibited, as Binnie J. contends.
220.127.116.11 Wording of Art. 9(1) of the By‑law
Any act of communication presupposes two distinct but inseparable components: text and context (Côté, at p. 280). Some spheres of government activity are more conducive to precisely worded texts, while others lend themselves more to general language. The use of general language in environmental matters was approved by the Court in Ontario v Canadian Pacific Ltd.,  2 S.C.R. 1031, and R. v Hydro‑Québec,  3 S.C.R. 213. The subject matter does not lend itself well to precise language. In the interpretation process, the more general the wording adopted by the lawmakers, the more important the context becomes. The contextual approach to interpretation has its limits. Courts perform their interpretative role only when the two components of communication converge toward the same point: the text must lend itself to interpretation, and the lawmakers’ intention must be clear from the context.
The wording of art. 9(1) is ambiguous. The words used are very general. What exactly is a “noise”? Is it a sound that could disturb the public peace? Or is it any sound that can be imagined? What does “can be heard from the outside” mean? Is a connection with a building necessary? Or would a cellular telephone constitute sound equipment? The general language used by the lawmakers can be interpreted in many ways. This ambiguity can be resolved only by reviewing the context of art. 9(1).
18.104.22.168 Context of Art. 9(1) of the By‑law
Having identified the ways in which the wording of art. 9(1) is ambiguous, we must now consider its context. The context of legislation involves a number of factors. The overall context in which a provision was adopted can be determined by reviewing its legislative history and inquiring into its purpose. The immediate context of art. 9(1) can be determined by analysing the By‑law itself. This review will enable us to determine whether the City has the power to adopt the impugned provision. We will accordingly address each of these contextual indicia: history, purpose and the By‑law itself.
We will begin our contextual analysis with the history of the By‑law. Noise affects city dwellers in their everyday lives and was one of the earliest concerns of municipal governments. It has long been recognized that noise falls within the jurisdiction over nuisances: D. Langlois, “Le bruit et la fureur : les réglementations municipale et provinciale en matière de bruit”, in Développements récents en droit municipal (1992), at p. 163. The regulation of noise has even been characterized as a primary focus of the municipal control of nuisances: L. Giroux, “Retour sur les compétences municipales en matière de nuisance”, in Développements récents en droit de l’environnement (1999), 299, at p. 303.
The City has had the authority to regulate nuisances since before Confederation. At that time, it could adopt by‑laws “[f]or the good rule, peace, welfare, .... and for the prevention and suppression of all nuisances ....” (Act to amend and consolidate the provisions of the Ordinance to incorporate the City and Town of Montreal, 1851, 14 & 15 Vict., c. 128, s. LVIII). Noises were specifically regulated by reference to the preservation of public peace and good order (“No person shall wilfully .... use .... any bell, horn, or bugle, or other sounding instrument”, By‑Law to Preserve Public Peace and Good Order, By‑laws of the City of Montreal, 1865, c. 23, s. 3). In 1899, in addition to its general power to maintain peace and order (Act to revise and consolidate the charter of the city of Montreal, S.Q. 1899, c. 58, ss. 299, para. 1, and 299, para. 2(7)) and its power to prohibit nuisances (s. 299, para. 2(12)), the City was given the power to define what constituted a nuisance (s. 300(50)).
The first by‑law encompassing all the provisions respecting noise was passed in 1937: By‑law concerning noise and to repeal, in whole or in part, certain by‑laws (By‑law 1448, June 7, 1937). Article 5 of By‑law 1448 prohibited sounds produced by sound equipment and projected outside buildings toward streets or public places. Given the time when the provision was adopted and the fact that it concerned sounds projected from a building into a public space, it is reasonable to conclude that the equipment to which the provision applied was equipment connected with the building. The purpose of the provision was apparently to prohibit sounds produced by equipment located inside a building at a volume such that a court could conclude that the person in control of the building intended the sounds to be heard by people in public spaces. The purpose of the prohibition was to preserve the peaceful nature of public spaces.
Article 5 of By‑law 1448 was clearly the predecessor of art. 15.1.1 of the By‑law concerning noise, 1976, By‑law 4996, which prohibited noise produced by an apparatus emitting sound outside a building. This provision, which was drafted more concisely, targeted equipment projecting sounds outside buildings. Article 15.1.1 of By‑law 4996 is the predecessor of art. 9 of the By‑law at issue in the instant case.
As can be seen from this brief overview of the By‑law’s historical background, the City has been regulating noise for over a hundred years. Although the wording has been modified over the years, all the provisions adopted since 1937 have had as their purpose the elimination of sounds emitted by sound equipment inside or outside a building at a volume such that they are audible and thus interfere with citizens’ peaceful enjoyment of public spaces. The underlying objective of all these by‑laws has been to preserve the peaceful nature of public spaces.
Having considered the historical context of art. 9(1) of the By‑law, we will now turn to its purpose. Identifying the purpose of a regulation can be helpful in determining the meaning of a given word or expression. The Court has frequently done so to extend or restrict the apparent or literal scope of a provision: McBratney v McBratney (1919), 59 S.C.R. 550; Canadian Fishing Co. v Smith,  S.C.R. 294; Sidmay Ltd. v Wehttam Investments Ltd.,  S.C.R. 828; Berardinelli v Ontario Housing Corp.,  1 S.C.R. 275; Rizzo & Rizzo Shoes. Moreover, the Quebec Court of Appeal engaged in the same exercise in Demers v Saint‑Laurent (Ville de),  R.J.Q. 1892 (C.A.), when it concluded that [translation] “the ‘nuisance’ referred to in s. 76 [of the Environment Quality Act, R.S.Q., c. Q‑2,] .... is limited to nuisances that are likely to affect the life, health, safety or welfare of the community”.
This approach is consistent with the approach to be followed in analysing a word or expression containing a latent ambiguity. “Noise” is one such word. The definitions of “noise” in dictionaries are broad, although they tend to mention that the word is often, but not necessarily, used in respect of unpleasant sounds. In French, the word “bruit” has an even broader meaning. It is defined as a [translation] “combination of sounds produced by vibrations that can be perceived by hearing” (Nouveau Larousse Encyclopédique, vol. 1 (2001), at p. 233). Hence, noise in itself is not necessarily a nuisance, but there is no contesting that it can be a nuisance.
The general expressions used in art. 9(1), namely “noise” and “can be heard from the outside”, have an “open texture” (Côté, at p. 279), and their meaning is affected both by the underlying legislative objective and by their legal environment. The legal environment includes “all ideas related to the wording that Parliament can reasonably consider to be sufficiently common knowledge as to obviate mention in the enactment” (Côté, at p. 281).
It is in no municipality’s interest to place limits on activities engaged in by citizens that do not in any way interfere with their fellow citizens’ peaceful enjoyment. The purpose pursued by the municipality can only be to protect against noise pollution. This purpose gives content to the general language of the provision and makes the implicit component of legal communication explicit. In the case at bar, it is clear from the legislative purpose that the scope of art. 9(1) of the By‑law does not include sounds resulting solely from human activity that is peaceable and respectful of the municipal community. This interpretation is the same as the one that flows from our historical analysis of the provision.
Bearing the legislative purpose in mind, we must now consider the By‑law itself. The immediate context of the impugned provision, namely the other provisions of the By‑law, is as important as its overall context. On this point, it should be noted that Quebec’s Interpretation Act, R.S.Q., c. I‑16, entrenches the rule of contextual interpretation and specifies how it is to be applied:
Thus, the immediate context thus also serves to clarify the scope or meaning of a word, expression or provision.
In art. 9, the provision at issue in the instant case, the two words or expressions requiring interpretation, “noise” and “where they can be heard from the outside”, are framed by their context, which enables their meaning to be determined.
The noise to which art. 9 applies is already qualified as being
produced by sound equipment,
inside a building or installed or used outside it and
audible from the outside.
These three characteristics are cumulative.
Does the provision cover all noises produced by sound equipment that are heard from the outside? Obviously not, since this would not cover all three characteristics. The example given by Binnie J. of noise from a cellular phone is therefore outside the scope of art. 9(1), since it disregards the essential connection with a building, and therefore with the very text on which he claims to rely. An interpretation that did not take this connection into account would make the words “whether it is inside a building or installed or used outside” unnecessary, contrary to the principle of interpretation known as the rule of effectivity (Côté, at p. 277; s. 41.1 of the Interpretation Act). If the lawmakers went to the trouble of specifying the location of the sound equipment in relation to the building in art. 9(1) of the By‑law, their intention was not to prohibit all noise produced by sound equipment without regard for this connection.
Other provisions of the By‑law are also helpful in determining the lawmakers’ intention. The By‑law (reproduced in the Appendix) contains a number of definitions that permit various types of noises to be identified. For example, a “noise with audible pure sounds” is defined as a “disruptive noise whose sound energy is concentrated around certain frequencies”. The expression “disruptive noise” is found in most of the definitions of types of noise. This explicit reference to the concept of disruption is consistent with the purpose identified above. The expression “disruptive noise” is itself defined as “a noise that can be detected as separate from the environmental noise and considered as a source for analysis purposes, and includes a noise defined as such in this article”. Environmental noise is the norm against which disruptive noise can be measured. Environmental noise is “a combination of usual noises from various sources, including noises that are exterior in origin, more or less regular in character, that can be detected within a given period, excluding any disruptive noise”. Thus, the main characteristic of disruptive noise is that it stands out from environmental noise. Disruptive noise is noise that interferes with the peaceful use of urban spaces, and is distinguished from noise in the literal sense.
This concept of disruptive noise reappears in the provisions specific to noise in inhabited places, which are found in a section that includes arts. 9 and 11. Although the expression is not explicitly mentioned in art. 9, it is nevertheless integral to the provision. It should be noted that all the noises referred to in art. 9 entail some form of auditory interference. They are disruptive noises within the meaning of the By‑law and do not need to be specifically identified as such (para. (2), siren; para. (3), percussion; para. (4), cries; etc.). It would be contrary to the principles of interpretation to disregard this undeniable contextual element by interpreting art. 9(1) in the abstract.
It follows that to apply art. 9(1) to all noises produced by sound equipment even if they do not interfere with the urban environment is inconsistent with the provision’s immediate context. All the noises covered by the prohibition under art. 9 have a disruptive effect on the urban environment, in accordance with the definition in the By‑law. All these noises can be detected as separate from the environmental noise. A noise produced by sound equipment inside or outside a building can be heard from the outside only if it stands out from the environmental noise. The only acceptable interpretation is one that takes the context into account. Although disruption is not expressly mentioned in art. 9, this is because, in view of the types of noises to which the provision applies, it was considered unnecessary to refer explicitly to disruptive noise in each paragraph.
The historical and purposive analysis of the provision enabled us to determine that the lawmakers’ purpose was to control noises that interfere with peaceful enjoyment of the urban environment. The immediate context of art. 9 indicates that the concept of noise that adversely affects the enjoyment of the environment is implicit in art. 9 and that the activities prohibited under it are activities that produce noises that can be detected as separate from the environmental noise. This delimitation of the By‑law’s scope does not, as Binnie J. claims, constitute a judicial amendment that is inconsistent with the plain meaning of the provision. Rather, it is the result of a judicious interpretation that resolves the provision’s ambiguity in accordance with the modern approach to interpretation.
Although art. 11 is mentioned in the pleadings, the parties did not address it specifically. Its scope is essentially linked to that of art. 9 and need not be discussed separately. All that remains to be determined is whether the City had the power to pass the By‑law.
3.1.2 Power of the City to Adopt Art. 9(1) of the By‑law
It is not in dispute that the City has the power to define and prohibit nuisances. In adopting art. 9(1) of the By‑law, the City was targeting noises that constitute a nuisance. We accordingly conclude that the City had the power to adopt art. 9(1) of the By‑law.
In the Court of Appeal, the respondent successfully argued, based on a literal reading of this provision, that the City did not have the power to adopt it. Fish J.A. was of the view that the City could not [translation] “argue that all amplified noise heard from outside, regardless of its nature or volume and of the time, the place or the presence of listeners, is in itself a nuisance” (at para. 41). In his opinion, since the City [translation] “does not have the power to define and prohibit nuisances that are not in fact nuisances, it has the authority to prohibit noise only if it reasonably delimits the cases in which noise will actually constitute a nuisance” (at para. 49).
In our opinion, this approach fails to take into consideration the principles of the interpretation of legislation, according to which a contextual approach is required. It is no more than a literal analysis of the By‑law. It also collapses a distinction between the existence of the power to regulate and the exercise of that power, and does not show the City the deference it is owed with respect to the exercise of its powers.
22.214.171.124 Distinction Between Existence and Exercise of the Power
Something is missing from the Court of Appeal’s statement of principle that the City “does not have the power to define and prohibit nuisances that are not in fact nuisances” (at para. 41). When a court hears an argument based on this statement, the first step of its analysis is to determine whether the municipality has the power to define a nuisance. If the municipality does have this power, the court must determine whether the power was exercised in a manner consistent with the delegated powers.
In the instant case, since arts. 517 and 520(72) of the Charter of the City (reproduced in the Appendix) clearly confer the power to regulate and define nuisances on the City, the review to be conducted relates not to the existence of the regulatory power but to its exercise.
126.96.36.199 Review of the Exercise of the Regulatory Power
The rules governing the exercise of regulatory powers are well known (Kruse v Johnson,  2 Q.B. 105; City of Hamilton v Hamilton Distillery Co. (1907), 38 S.C.R. 239; Shell Canada Products Ltd. v Vancouver (City),  1 S.C.R. 231). The intervention of courts in this sphere has been marked by great deference. Only an exercise of power in bad faith or for improper or unreasonable purposes will justify judicial review (Kruse; City of Montreal v Beauvais (1909), 42 S.C.R. 211; Associated Provincial Picture Houses, Ltd. v Wednesbury Corp.,  2 All E.R. 680; Juneau v Ville de Québec,  R.J.Q. 2781 (C.A.); Shell Canada Products; Montréal (City of) v Arcade Amusements Inc.,  1 S.C.R. 368).
Recourse to the power to define is helpful because it simplifies the task of those who must apply a by‑law. Thus, when an activity is defined as a nuisance, a citizen, a municipal officer or a judge, as the case may be, knows exactly what obligations are imposed by the municipal by‑law. The standard is clear. However, this does not mean that the power to define is unlimited. For example, a municipality may not use its power to define a nuisance in place of its zoning power, thereby indirectly prohibiting an activity that would otherwise be authorized (Saint‑Michel‑Archange (Municipalité) v 2419‑6388 Québec Inc.,  R.J.Q. 875 (C.A.), at p. 881). Nor may it, in exercising its power to regulate nuisances, set standards that are unreasonable (Laval (Ville) v Prince,  Q.J. No. 58 (QL)).
The City’s intention to exercise the power conferred on it by art. 520(72) of its charter to define and abate nuisances is clear from the wording of art. 2 of the By‑law. The use of the expression “constitutes a nuisance” expressly bases the By‑law on the provision authorizing the definition of nuisances:
The purpose of art. 2 of the By‑law is to define certain types of noise as nuisances and to prohibit them. Article 2 refers to noises that are specifically prohibited, and the type of noise referred to in the impugned provision is among them. The wording of the By‑law lends itself to a contextual analysis in order to determine what types of noise might be prohibited by art. 9(1).
To control noise, the City chose to target certain types of sounds that are more likely to stand out over other environmental noise. Targeting noises is of course consistent with the City’s delegated power to regulate and define nuisances. A number of characteristics are accordingly used to identify certain noises: sound pressure level greater than the standard determined by ordinance (art. 8 of the By‑law), needless use of a siren in a motor vehicle (art. 6(3) of the By‑law), and so on. It is in this context that the City prohibited noise that can be heard from outside a building and is produced by sound equipment.
The prohibition is not absolute. Although art. 9(1) appears to be broad in scope, as we saw in the contextual analysis of the provision, it must not be interpreted literally. The provision applies only to sounds that stand out over the environmental noise. Also, art. 20 of the By‑law enables the executive committee to issue ordinances authorizing the emission of the types of noise in question in certain circumstances or on special occasions. Numerous authorizations have been granted for this purpose.
As Giroux points out, at p. 316, the line between protecting the peace and the desire to ensure conformity is sometimes a fine one. In light of this tension, the courts must bear in mind that the responsibility for controlling noise rests with the municipality, and they must not supplant the municipal council to impose their views (Sablières Laurentiennes Ltée v Ste-Adèle (Ville),  R.L. 486 (C.A.)). A court must show great deference in reviewing a municipal by‑law adopted pursuant to the City’s powers. Municipal councils are made up of elected representatives who are accountable to their constituents, and the courts have recognized that municipalities have broad discretion in exercising their regulatory powers.
Tolerance of noise varies from one individual to another. The adoption of an objective standard, be it the sound pressure level or the source of the noise, makes it easier to apply the by‑law. Unless the standard or the medium in question shows that the power has been exercised unreasonably, the court must show deference. Limiting the intensity of certain specific noises and eliminating those noises are two means to the same end, that is, maintaining a level that is acceptable to municipal officials. It is up to the City to choose the means. The City’s decision to prohibit, except with special permission, all noise produced by sound equipment, whether located inside a building or installed or used outside, that can be heard from the outside does not exceed the City’s regulatory power and in no way constitutes an unreasonable or improper exercise of that power.
The City also submitted that the By‑law could be based on its power to ensure peace and public order. In light of our conclusion, it is unnecessary to turn to that provision to find that the By‑law is valid. A few comments are in order, though.
It is well established that a municipal by‑law may have more than one aspect and more than one purpose. Consequently, a by‑law may have more than one enabling provision (Arcade Amusements, at p. 382). It is also possible for a single enabling provision, in particular a general provision such as art. 516 of the Charter of the City, to authorize provisions with multiple purposes.
This being said, to restate the Court’s words in R. v Greenbaum,  1 S.C.R. 674, at p. 693, there are many limits on a municipality’s general power to adopt by‑laws to ensure peace, order and the welfare of its citizens. In particular, when specific powers have been provided for, the general power should not be used to extend the clear scope of the specific provisions. In Greenbaum (at p. 693), the Court agreed with Middleton J.A. of the Ontario Court of Appeal in Morrison v Kingston (1937), 69 C.C.C. 251. At p. 255 of that decision, Middleton J.A. had given a general description of the limits on a municipality’s regulatory powers:
The first and most obvious limitation is found in the limitations imposed upon the power of the Province itself by the B.N.A. Act. The Province has not itself universal power of legislation, and its creature the municipality can have no higher power. A second and for many purposes a limitation of equally practical importance is that where the Provincial Legislature has itself undertaken to deal with a certain subject‑matter in the interest of the inhabitants of the Province all legislation by the municipality must be subject to the provincial enactment. A third limitation is I think to be found in the express enactments of the Municipal Act. Very few subjects falling within the ambit of local government are left to the general provisions of s. 259 [now s. 130]. Almost every conceivable subject proper to be dealt with by a municipal council is specifically enumerated in the detailed provisions in the Act, and in some instances there are distinct limitations imposed on the powers of the municipal council. These express powers are, I think, taken out of any power included in the general grant of power by s. 259.
The Court’s remarks in 114957 Canada Ltée (Spraytech, Société d’arrosage) v Hudson (Town),  2 S.C.R. 241, 2001 SCC 40, at para. 22, also support this principle. In that case, the Court upheld the validity of a provision regulating the use of pesticides on the basis of a general power. However, the majority, per L’Heureux‑Dubé J., stated that while such general powers may apply where no specific power has been granted (at para. 21), they “do not confer an unlimited power” (at para 20). The Court thus recognized that the purpose of such provisions is to “allow municipalities to respond expeditiously to new challenges facing local communities, without requiring amendment of the provincial enabling legislation” (at para. 19). It seems clear that there is no need to resort to a general power if a specific power exists.
In the case at bar, the Charter of the City has two specific provisions – one relating to nuisances and the other to public order, peace and safety – in addition to the general residual power.
Thus, the City may base the By‑law on its power to define and regulate nuisances pursuant to arts. 517(l) and 520(72) of the Charter of the City. The general power under art. 516 to ensure peace, order and good government and the welfare of citizens cannot be used to justify the exercise of its regulatory power, because there is a specific provision that applies.
Having concluded that arts. 9(1) and 11 of the By-law are within the delegated power of the City, we must consider the second issue: whether these provisions violate the Canadian Charter. We must first decide whether the provisions of the By-law violate s. 2(b) of the Canadian Charter. If they do, we must then consider whether this violation is justified under s. 1 of the Canadian Charter.
3.2 Does Article 9(1) of the By-law Infringe Section 2(b) of the Canadian Charter?
Does the City’s prohibition on amplified noise that can be heard from the outside infringe s. 2(b) of the Canadian Charter? Following the analytic approach of previous cases, the answer to this question depends on the answers to three other questions.
First, did the noise have expressive content, thereby bringing it within s. 2(b) protection?
Second, if so, does the method or location of this expression remove that protection?
Third, if the expression is protected by s. 2(b), does the By-law infringe that protection, either in purpose or effect?
See Irwin Toy Ltd. v Quebec (Attorney General),  1 S.C.R. 927.
The first two questions relate to whether the expression at issue in this case falls within the protected sphere of s. 2(b). They are premised on the distinction made in Irwin Toy between content (which is always protected) and “form” (which may not be protected). While this distinction may sometimes be blurred (see, e.g. Irwin Toy, p. 968; Ford v Quebec (Attorney General),  2 S.C.R. 712, at p. 748), it is useful in cases such as this, where method and location are central to determining whether the prohibited expression is protected by the guarantee of free expression.
3.2.1 Expressive Content
The first question is whether the noise emitted by a loudspeaker from inside the club had expressive content. The answer must be yes. The loudspeaker sent a message into the street about the show going on inside the club. The fact that the message may not, in the view of some, have been particularly valuable, or may even have been offensive, does not deprive it of s. 2(b) protection. Expressive activity is not excluded from the scope of the guarantee because of its particular message. Subject to objections on the ground of method or location, as discussed below, all expressive activity is presumptively protected by s. 2(b): see Irwin Toy, at p. 969; R. v Keegstra,  3 S.C.R. 697, at p. 729.
It is clear that noise emitted by loudspeakers from buildings onto the street can have expressive content, and in this case it did. Therefore, the first part of the test in Irwin Toy is met and a prima facie case for s. 2(b) protection is established.
3.2.2 Excluded Expression
Expressive activity may fall outside the scope of s. 2(b) protection because of how or where it is delivered. While all expressive content is worthy of protection (see Irwin Toy, at p. 969), the method or location of the expression may not be. For instance, this Court has found that violent expression is not protected by the Canadian Charter: Irwin Toy, at pp. 969-70. Violence is not excluded because of the message it conveys (no matter how hateful) but rather because the method by which the message is conveyed is not consonant with Charter protection.
This case raises the question of whether the location of the expression at issue causes the expression to be excluded from the scope of s. 2(b): see Committee for the Commonwealth of Canada v Canada,  1 S.C.R. 139, per Lamer C.J. Property may be private or public. Public property is government-owned. In this case, although the loudspeaker was located on the respondent’s private property, the sound issued onto the street, a public space owned by the government. One aspect of free expression is the right to express oneself in certain public spaces. Thus, the public square and the speakers’ corner have by tradition become places of protected expression. The question here is whether s. 2(b) of the Canadian Charter protects not only what the Appellants were doing, but their right to do it in the place where they were doing it, namely a public street.
Section 2(b) protection does not extend to all places. Private property, for example, will fall outside the protected sphere of s. 2(b) absent state-imposed limits on expression, since state action is necessary to implicate the Canadian Charter. Public property, however, may be more problematic since, by definition, it implicates the state. Two countervailing arguments, both powerful, are pitted against each other where the issue is expression on public property.
The argument for s. 2(b) protection on all public property focuses on ownership. It says the critical distinction is between government-owned places and other places. The government as the owner of property controls it. It follows that restrictions on the use of public property for expressive purposes are “government acts”. Therefore, it is argued, the government is limiting the right to free expression guaranteed by s. 2(b) of the Canadian Charter and must justify this under s. 1.
The argument against s. 2(b) protection on at least some government-owned property, by contrast, focuses on the distinction between public use of property and private use of property. Regardless of the fact that the government owns and hence controls its property, it is asserted, many government places are essentially private in use. Some areas of government-owned property have become recognized as public spaces in which the public has a right to express itself. But other areas, like private offices and diverse places of public business, have never been viewed as available spaces for public expression. It cannot have been the intention of the drafters of the Canadian Charter, the argument continues, to confer a prima facie right of free expression in these essentially private spaces and to cast the onus on the government to justify the exclusion of public expression from places that have always and unquestionably been off-limits to public expression and could not effectively function if they were open to the public.
In Committee for the Commonwealth of Canada, six of seven judges endorsed the second general approach, although they adopted different tests for determining whether the government-owned property at issue was public or private in nature. Lamer C.J., supported by Sopinka and Cory JJ., advocated a test based on whether the primary function of the space was compatible with free expression. McLachlin J., supported by La Forest and Gonthier JJ., proposed a test based on whether expression in the place at issue served the values underlying the s. 2(b) free speech guarantee. L’Heureux-Dubé J. opted for the first approach and went directly to s. 1.
In this case, as in Ramsden v Peterborough (City),  2 S.C.R. 1084, we are satisfied that on any of the tests proposed in Committee for the Commonwealth of Canada, the emission of noise onto a public street is protected by s. 2(b). The activity is expressive. The evidence does not establish that the method and location at issue here – a building-mounted amplifier emitting noise onto a public street – impede the function of city streets or fail to promote the values that underlie the free expression guarantee.
This method of expression is not repugnant to the primary function of a public street, on the test of Lamer C.J. Streets provide means of passing and accessing adjoining buildings. They also serve as venues of public communication. However one defines their function, emitting noise produced by sound equipment onto public streets seems not in itself to interfere with it. If sound equipment were being used in a way that prevented people from using the street for passage or communication, the answer might be different: see, e.g. MacMillan Bloedel Ltd. v Simpson (1994), 89 C.C.C. (3d) 217 (B.C.C.A.). However, the evidence here does not establish this.
The method and location of the expression also arguably serve the values that underlie the guarantee of free expression, on the approach advocated by McLachlin J. Amplified emissions of noise from buildings onto a public street could further democratic discourse, truth finding and self-fulfillment. Again, if the evidence showed that the amplification inhibited passage and communication on the street, the situation might be different. The argument that the emissions of noise onto a public street in this case did not serve the values underlying the freedom of expression rests on its content, and cannot be considered in addressing the issue of whether the method or location of the expression itself is inimical to s. 2(b).
Finally, on the analysis of L’Heureux-Dubé J. in Committee for the Commonwealth of Canada, the expressive content of the noise mandates the conclusion that it is protected by s. 2(b) and propels the analysis directly into s. 1, where justification is the issue.
It follows that here, as in Ramsden, it is unnecessary to revisit the question of which of the divergent approaches to the issue of expression on public property should be adopted. However, since we are requested to clarify the test, we offer the following views.
We agree with the view of the majority in Committee for the Commonwealth of Canada that the application of s. 2(b) is not attracted by the mere fact of government ownership of the place in question. There must be a further enquiry to determine if this is the type of public property which attracts s. 2(b) protection.
Expressive activity should be excluded from the protective scope of s. 2(b) only if its method or location clearly undermines the values that underlie the guarantee. Violent expression, which falls outside the scope of s. 2(b) by reason of its method, provides a useful analogy. Violent expression may be a means of political expression and may serve to enhance the self-fulfillment of the perpetrator. However, it is not protected by s. 2(b) because violent means and methods undermine the values that s. 2(b) seeks to protect. Violence prevents dialogue rather than fostering it. Violence prevents the self-fulfillment of the victim rather than enhancing it. And violence stands in the way of finding the truth rather than furthering it. Similarly, in determining what public spaces fall outside s. 2(b) protection, we must ask whether free expression in a given place undermines the values underlying s. 2(b).
We therefore propose the following test for the application of s. 2(b) to public property; it adopts a principled basis for method or location-based exclusion from s. 2(b) and combines elements of the tests of Lamer C.J. and McLachlin J. in Committee for the Commonwealth of Canada. The onus of satisfying this test rests on the claimant.
The basic question with respect to expression on government-owned property is whether the place is a public place where one would expect constitutional protection for free expression on the basis that expression in that place does not conflict with the purposes which s. 2(b) is intended to serve, namely
truth finding and
To answer this question, the following factors should be considered:
the historical or actual function of the place; and
whether other aspects of the place suggest that expression within it would undermine the values underlying free expression
The historical function of a place for public discourse is an indicator that expression in that place is consistent with the purposes of s. 2(b). In places where free expression has traditionally occurred, it is unlikely that protecting expression undermines the values underlying the freedom. As a result, where historical use for free expression is made out, the location of the expression as it relates to public property will be protected.
Actual function is also important. Is the space in fact essentially private, despite being government-owned, or is it public? Is the function of the space – the activity going on there – compatible with open public expression? Or is the activity one that requires privacy and limited access? Would an open right to intrude and present one’s message by word or action be consistent with what is done in the space? Or would it hamper the activity? Many government functions, from cabinet meetings to minor clerical functions, require privacy. To extend a right of free expression to such venues might well undermine democracy and efficient governance.
Historical and actual functions serve as markers for places where free expression would have the effect of undermining the values underlying the freedom of expression. The ultimate question, however, will always be whether free expression in the place at issue would undermine the values the guarantee is designed to promote. Most cases will be resolved on the basis of historical or actual function. However, we cannot discount the possibility that other factors may be relevant. Changes in society and technology may affect the spaces where expression should be protected having regard to the values that underlie the guarantee. The proposed test reflects this, by permitting factors other than historical or actual function to be considered where relevant.
The markers of historical and actual functions will provide ready answers in most cases. However, we must accept that, on the difficult issue of whether free expression is protected in a given location, some imprecision is inevitable. As some scholars point out, the public-private divide cannot be precisely defined in a way that will provide an advance answer for all possible situations: see, e.g. R. Moon, The Constitutional Protection of Freedom of Expression (2000), at pp. 148 et seq. This said, the historical and actual functions of a place is something that can be established by evidence. As courts rule on what types of spaces are inherently public, a central core of certainty may be expected to evolve with respect to when expression in a public place will undermine the values underlying the freedom of expression.
Another concern is whether the proposed test screens out expression which merits protection, on the one hand, or admits too much clearly unprotected expression on the other. Our jurisprudence requires broad protection at the s. 2(b) stage, on the understanding that governments can limit that protection if they can justify the limits under s. 1 of the Canadian Charter. The proposed test reflects this. However, it also reflects the reality that some places must remain outside the protected sphere of s. 2(b). People must know where they can and cannot express themselves and governments should not be required to justify every exclusion or regulation of expression under s. 1. As six of seven judges of this Court agreed in Committee for the Commonwealth of Canada, the test must provide a preliminary screening process. Otherwise, uncertainty will prevail and governments will be continually forced to justify restrictions which, viewed from the perspective of history and common sense, are entirely appropriate. Restricted access to many government-owned venues is part of our history and our constitutional tradition. The Canadian Charter was not intended to turn this state of affairs on its head.
A final concern is whether the proposed test is flexible enough to accommodate future developments. Changes in society will inevitably alter the specifics of the debate about the venues in which the guarantee of free expression will apply. Some say, for example, that the increasing privatization of government space will shift the debate to the private sector. Others say that the new spaces for communication created by electronic communication through the Internet will raise new questions on the issue of where the right to free speech applies. We do not suggest how the problems of the future will be answered. But it seems to us that a test that focuses on historical and actual functions as markers for public and private domains, adapted as necessary to accord with new situations and the values underlying the s. 2(b) guarantees, will be sufficiently flexible to meet the problems of the future.
Applying the approach we propose to the case at bar confirms the conclusion reached earlier under the three Committee for the Commonwealth of Canada tests that the expression at issue in this case falls within the protected sphere of s. 2(b) of the Canadian Charter. The content, as already noted, is expressive. Viewed from the perspective of locus, the expression falls within the public domain. Streets are clearly areas of public, as opposed to private, concourse, where expression of many varieties has long been accepted. There is nothing to suggest that to permit this medium of expression would subvert the values of s. 2(b).
3.2.3 The Infringement
This brings us to the third step of the Irwin Toy test. Having concluded that the expression falls within the protected scope of s. 2(b), we must ask whether the By-law impinges on protected expression, in purpose or effect.
Here, the purpose of the By-law is benign. However, its effect is to restrict expression. Where the effect of a provision is to limit expression, a breach of s. 2(b) will be made out, provided the claimant shows that the expression at issue promotes one of the values underlying the freedom of expression: Irwin Toy, at p. 976.
The electronically amplified noise at issue here encouraged passers-by to engage in the leisure activity of attending one of the performances held at the club. Generally speaking, engaging in lawful leisure activities promotes such values as individual self-fulfillment and human flourishing. The disputed value of particular expressions of self-fulfillment, like exotic dancing, does not negate this general proposition: R. v Butler,  1 S.C.R. 452, at p. 489. It follows that the By-law has the effect of restricting expression which promotes one of the values underlying s. 2(b) of the Canadian Charter.
We conclude that the City’s ban on emitting amplified noise constitutes a limit on free expression under s. 2(b) of the Canadian Charter.
3.3 Is the Limit Justified under Section 1 of the Canadian Charter?
We have concluded that the By-law amounts to a limitation on expression protected by s. 2(b). The remaining question is whether that limit is justified under s. 1 of the Canadian Charter.
Section 1 of the Canadian Charter provides:
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
Under s. 1, the onus is on the City to show that the limit is directed at a pressing and substantial objective, and that the limit is proportionate in the sense of being rationally connected to the objective, impairing the right to freedom of expression in a reasonably minimal way, and having an effect in terms of curtailment of the right that is proportionate to the benefit sought: R. v Oakes,  1 S.C.R. 103.
We conclude that the objective of the limitation is pressing and substantial. The Superior Court judge, Boilard J., defined that objective as combatting noise pollution (paras. 15 and 17). Noise pollution is a serious problem in urban centers, and cities like Montréal are entitled to act reasonably and responsibly in seeking to curb it.
This brings us to proportionality. Proportionality is concerned with the means chosen to meet the objective. Here the City chose a two-pronged attack on noise pollution. First, it prohibited noises exceeding a stipulated degree of loudness: art. 8. Second, it prohibited particular noises – namely noise that can be heard from the outside and is produced by sound equipment, whether it is inside a building or installed or used outside: art. 9. Noise targeted by art. 9 is prohibited regardless of whether it affects an inhabited place: art. 11. It is important, however, to note that art. 9 does not represent an absolute ban. Unlike Ramsden, where no relief from the restrictive by-law was possible, the scheme of the By-law in this case anticipates routine granting of licences as exceptions to the prohibition. Acticle 20 of the By-law provides that the City may authorize the use of sound equipment prohibited by arts. 9 and 11 in particular circumstances, as for special events, celebrations and demonstrations. The City has exercised this authority and granted permits to use sound equipment on hundreds of occasions: at para. 115, per Chamberland J.A. There is no evidence that it has exercised this authority arbitrarily or to curb democratic discourse. Moreover, as discussed above, in para. 34, a contextual reading of the impugned provision leads to the conclusion that art. 9(1) only captures noise that interferes with the peaceful use and enjoyment of the urban environment. This is the essence of the regulatory scheme the City put in place to deal with noise pollution on its streets.
The first question is whether the limit on noise produced by sound equipment is rationally connected to the City’s objective of limiting noise in the streets. Clearly it is. Amplified noise emitted into the street may interfere with the activities of people using the street and the buildings around it. People in urban neighbourhoods cannot expect to be free from the sounds of the many activities that go on around them. However, they can and do expect the level of this intrusion to be limited, so that they can enjoy a measure of peace and quiet. This was the City’s objective. Presumptively prohibiting the emission of amplified noise was one of the means by which it sought to accomplish that objective.
The second question, and the most difficult, is whether the measure impairs the right in a reasonably minimal way. Boilard J. held that the prohibition on noise that is produced by sound equipment and can be heard from the outside, the second prong of the City’s regulatory scheme, was not minimally intrusive because it [translation] “completely precluded [the club owner] from communicating its commercial message at a time when and place where the harmful effects of doing so were minimal if not non-existent” (para. 33). This conclusion rests on a literal reading of art. 9(1) which, in our view, must be rejected. He went on to say that arts. 8, 10 and 11 sufficed to permit the City to prevent an escalation of the publicity war between the competing club owners on the street. In his view, the City could maintain reasonable and tolerable limits on noise in the streets by regulating the volume of noise measurable by sound level meters, as it had done for Christmas music played over loudspeakers. Boilard J. therefore concluded that the City could have achieved its objective by less intrusive means than a blanket ban on noise produced by sound equipment.
On appeal, only Chamberland J.A. found it necessary to consider minimal impairment. We generally endorse his comments and conclusions on this issue.
First, in dealing with social issues like this one, where interests and rights conflict, elected officials must be accorded a measure of latitude. The Court will not interfere simply because it can think of a better, less intrusive way to manage the problem. What is required is that the City establish that it has tailored the limit to the exigencies of the problem in a reasonable way. This is particularly so on environmental issues, where views and interests conflict and precision is elusive: Canadian Pacific Ltd.
Second, it is far from clear that regulation by degree of loudness would effectively deal with the problem of noise pollution and the conflict between commercial concerns seeking to maximize commercial expression and citizens seeking a relatively peaceful and calm environment. Boilard J. erred in suggesting that the City could adequately deal with the problem of noise pollution by regulating the volume of noise measurable by sound level meter. Noise can be emitted randomly in unexpected places. Detecting and prosecuting violations could be difficult. Moreover, the regulation of sound levels alone would not prevent the possibility that multiple, simultaneous noises, each within the legal limit, could cumulatively exceed an acceptable sound level.
Regulation by degree of loudness would not achieve the City’s goal of eliminating, subject to exceptions, a certain type of sound – that produced by sound equipment. Moreover, regulation by sound level meters has definite limits. While some noises may be capable of being monitored in this way, some, like intermittent noises or random noises, cannot. Moreover, the suggestion was unrealistic. As Chamberland J.A. put it: [translation] “It would take a forest of sound level meters and an army of qualified technicians lying in waiting to monitor the noise produced by sound equipment at different times of day and night, everywhere in greater Montréal” (para. 119).
Rights should never be sacrificed to mere administrative convenience. Here, however, the City contends that for a variety of reasons there was really no other practical way to deal with the complex problem it was facing. Accordingly, the City’s measures do not go beyond what was reasonably necessary in the circumstances and, as a result, its regulatory plan is entitled to deference.
It remains to consider whether the prejudicial effects on free expression flowing from the regulation of sound at issue are proportionate to the beneficial effects of the regulation. In our view, the test supports the conclusion that the By-law is valid.
The expression limited by the By-law consists of noise produced by sound equipment that interferes with the peaceful use and enjoyment of the urban environment. This limitation therefore goes to the permitted forms of expression on city streets, regardless of content. Against this stand the benefits of reducing noise pollution on the street and in the neighbourhood. We acknowledge that in balancing the deleterious and positive effects of the By-law, account must be taken of the fact that the activity was taking place on a street with an active commercial nightlife in a large and sophisticated city. This does not, however, mean that its residents must necessarily be subjected to abuses of the enjoyment of their environment. As Chamberland J.A. put it, [translation] “the citizens of a city, even a city the size of Montréal, are entitled to a healthy environment. Noise control is unquestionably part of what must be done to improve the quality of this environment” (para. 129). We conclude that the beneficial effects of the By-law outweigh its prejudicial effects.
3.4 Conclusion on the Constitutional Issue
We conclude that the expression at issue falls within the protected sphere of s. 2(b) of the Canadian Charter and that the prohibition on noise produced by sound equipment in arts. 9 and 11 of the By-law limits that right. However, that limitation is justified under s. 1 of the Canadian Charter as a reasonable limit in a free and democratic society. We therefore conclude that the By-law is constitutional.
In the result, we would allow the appeal, with costs in all appellate courts.
I have read with interest the reasons of my colleagues the Chief Justice and Deschamps J. upholding the validity of art. 9(1) of the Montréal By-law concerning noise, R.B.C.M. 1994, c. B-3, as both within the powers of the City to deal with “nuisances” and as a justified limit on Montrealers’ freedom of expression. With respect, I reach a different conclusion on both counts. Although the circumstances of the present dispute do not call for much moral indignation (a noise war between competing strip joints), it remains true that operators of the strip joints cannot lawfully be convicted under an invalid law any more than anyone else. Article 9(1) of the by-law imposes a general ban on “noise produced by sound equipment” which includes, on the face of it, everything from loudspeakers blasting outside a strip club to the quiet outdoor use of a radio in an Outremont garden, to the ringing of a cell phone in front of the Palais de Justice to the squawk of a baby alarm. I say “on the face of it” because the significant legal issue in this appeal is the extent to which the Court can write limitations into a by-law to implement the Court’s view of what would be a reasonable measure against noise pollution.
Generally speaking, it is the job of the legislative body to craft its own limits. Anti-noise by-law measures are of three types. The first prohibits noise that exceeds objective measurable limits (e.g. a set level of decibels). The second prohibits noise by subjective criteria (e.g. noise that interferes with the quality of life). The third prohibits noise by source (e.g. sounding car horns in a hospital zone). My colleagues’ interpretation converts a type 3 provision into a type 2 provision. This shift was not sought by the appellant City of Montréal or suggested by the courts below. Indeed it contradicts the City’s intent both as expressed in the by-law and as submitted to this Court in written and oral argument. I believe the City is entitled to the Court’s pronouncement on the validity of art. 9(1) as written and as the City intended it to be interpreted. Taken on that basis, I would say that art. 9(1) is ultra vires the City’s legislative authority.
Further, while I agree with my colleagues that art. 9(1) of the by-law interferes with the free expression of Montrealers, I disagree that such interference can be justified under either the Quebec Charter of Human Rights and Freedoms, R.S.Q., c. C-12, or the Canadian Charter of Rights and Freedoms. In my view, art. 9(1) is a clear case of legislative overkill. This was the view taken by Fish J.A. (as he then was) and Letarte J.A. in the Quebec Court of Appeal and I agree with them. It follows that the respondent was convicted under an invalid law. I would therefore dismiss the appeal.
A. The City’s Position on the Scope of Article 9(1)
The City’s lawyer, Maître Serge Barrière, was in the course of explaining that [translation] “the City of Montréal has the power not only to prohibit nuisances, but also to define them” (transcript, at p. 5), when he was interrogated by my colleague LeBel J. [translation]:
This interpretation of the absolute nature of the ban was also considered correct by counsel appointed by the Court as amicus curiae [translation]:
Counsel for the City was moved to comment on this exchange in his reply argument [translation]:
[T]he question asked by Justice Binnie gave me pause. It seems to me .... I can suggest a partial answer, perhaps .... it seems to me that it’s unlikely a police officer would issue a statement of offence for a sound device of this kind, and if one did, I would think that any judge hearing the complaint could, by applying the methods of interpretation approved by the Court, conclude that this was not sound equipment ....
[Transcript, at p. 59]
In its factum the City argues that [translation] “pollution results not only from the intensity of the sounds, but also from the addition of all the different types of sounds from different sources that make up the environmental noise” (para. 71), and that “environmental noise cannot be combatted effectively unless unnecessary noises are eliminated” (para. 75). Taken together, City Hall’s submissions amount to the contention that all “noise produced by sound equipment” is legitimately banned by art. 9(1), but that prosecutorial discretion will pick and choose amongst noises which may not rise to the level of nuisances in themselves to suppress what, in the City’s view, are “unnecessary” contributors to the general ambiant noise level. The exercise of this prosecutorial discretion is not governed by any criteria expressed in art. 9(1). The City apparently rests its noise strategy on the idea that the sweeping discretion given to by-law enforcement officials will, everybody hopes, be exercised against bringing absurd prosecutions.
My conclusion on the merits is that, while the City is entirely within its authority to combat noise pollution, it goes too far when the fight includes treating as a “nuisance” any audible signal from “sound equipment” without regard to the potential, if any, for disturbance or annoyance. The Charter of the City of Montreal, 1960, S.Q. 1959-60, c. 102, authorizes City Hall to define and prohibit “nuisances”, but as my colleagues agree, “this does not mean that the power to define is unlimited” (para. 42). In my view, art. 9(1) is oppressive and should, as the Quebec Court of Appeal determined, be sent back to City Hall for further consideration and modification.
B. General Principles of Interpretation
I accept, of course, the principles of “contextual” interpretation of statutes and by-laws laid down in our cases and in part referred to by my colleagues. Our disagreement is about the application of those interpretive principles. In my view, with respect, my colleagues resort to a combination of reading expressions “up”, reading expressions “down”, reading words “out” and reading words “in” that goes beyond what a court is authorized to do by way of interpretation and amounts to impermissible judicial amendment. Such radical surgery is sometimes done as a matter of constitutional remedy in a proper case, but here it is not being done as a remedy after finding a Charter breach. It is being imposed at the prior stage of interpretation, when the Court’s mandate is simply to ascertain the intention of the legislators, not to remedy wrongs.
The Court was quite right in recent years to have adopted a contextual approach (as opposed to a purely literal approach) to statutory interpretation, but that does not mean that after proper application of a contextual approach the Court cannot conclude that in fact the legislators meant what they said. As noted in Attorney General of Quebec v Carrières Ste-Thérèse Ltée,  1 S.C.R. 831, it is sometimes stated, when a court considers the grammatical and ordinary sense of a provision, that “[t]he legislator does not speak in vain” (p. 838). See also Bell ExpressVu Limited Partnership v Rex,  2 S.C.R. 559, 2002 SCC 42, at para. 37.
The provision in question is found in art. 9(1) of the by-law and reads as follows:
As my colleagues interpret article 9(1) in paras. 29-33 of their judgment it should read:
The position of the City of Montreal in its written argument and in oral argument (as already referred to) is that art. 9(1) means what it says.
We all take as our starting point Driedger’s statement of the proper contextual approach to interpretation:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
(Driedger, Construction of Statutes (2nd ed.1983), at p. 87)
This “modern approach” was affirmed in Rizzo & Rizzo Shoes Ltd. (Re),  1 S.C.R. 27, and subsequently elaborated upon in Bell ExpressVu. I propose to proceed as the Court did in Bell ExpressVu, namely to look first at the “grammatical and ordinary sense” of the words used by the legislators in art. 9(1), then to “the broader context”, and finally to some considerations specific to the scheme of the Montréal charter and the Montréal noise by-law, their object, and the intention of the respective legislators. My conclusion, as will be seen, is that there is no ambiguity in art. 9(1), latent or otherwise. As in Bell ExpressVu itself, a full contextual analysis demonstrates that the legislators intended what they said.
1. Grammatical and Ordinary Sense
As my colleagues note, Larousse defines the word “bruit” as a [translation] “combination of sounds produced by vibrations that can be perceived by hearing” (Nouveau Larousse Encyclopédique (2001), vol. 1, at p. 233). It therefore follows, as they acknowledge at para. 24, that this word “has an even broader meaning [than ‘noise’.] Hence, noise in itself is not necessarily a nuisance, but there is no contesting that it can be a nuisance” (emphasis added).
We agree therefore that on a grammatical reading, art. 9(1) includes noise produced by sound equipment which is not a nuisance. To acknowledge that “noise” comes in different types and volumes is not to say that the word itself is ambiguous. Supporters of art. 9(1) conjure up visions of competing strip clubs, ghetto blasters ruining Sunday afternoons in Murray Park, or thousands of angry protestors marching along boulevard René Lévesque hyperventilating through megaphones. However, as stated, the City’s lawyer in this Court did not shrink from acknowledging that the actual force and scope of art. 9(1) is a good deal more sweeping than those examples would suggest, and that this sweeping result was intended by his clients at City Hall, who believe that all will be cured by the sensible exercise of prosecutorial discretion.
Read in its grammatical and ordinary sense, art. 9(1) would preclude a Montrealer sitting in his garden listening to Mozart playing softly through an open window from a kitchen radio. It would catch people who can only make themselves heard using “sound equipment”, such as Dr. Stephen Hawking, one of the world’s foremost theoretical physicists, who suffers from amyotrophic lateral sclerosis (ALS or Lou Gehrig’s disease) and can only communicate through a voice box. Were we to be fortunate enough to sit on a roof garden in Montréal with one of these individuals, talking at normal conversational levels, their communications (“noise from sound equipment”) would potentially be considered a nuisance but ours would not. The City prosecutors would be unlikely to lay a charge, of course, but in the City’s view enforcement would be a matter of discretion, depending apparently on whether City Hall regards their noise as “unnecessary”.
Strolling north from St. Catherine Street, we would reach the student ghetto east of the main McGill University Campus. An undergraduate studying to the music of an Ella Fitzgerald CD would stay within the law if she kept her windows closed, but opening the sash to let in some air and a spring breeze would allow the music to escape and precipitate an exercise of the “prosecutor’s discretion” under art. 9(1) of the by-law. She, like Professor Hawking or the young mother sitting on her front porch listening to the mewling of her baby over a baby alarm (whether or not attached to the building) would be contributing noise to the Montréal environment by means of a prohibited source, and would thereby run afoul of art. 9(1) of the by-law.
The above-mentioned encounters with “sound equipment” are all “imaginable circumstances which could commonly arise in day-to-day life” (R. v Goltz,  3 S.C.R. 485, at p. 516), and may therefore be used legitimately to test the validity of the City’s enactment.
To this point I have been dealing with what art. 9(1) says. However, my colleagues hold that what it says is not what it means. They say context shows that there is an “latent ambiguity” (para. 24). Accordingly, I turn to consider the context.
2. The Broader Context
It is true, as my colleagues state, that “[w]ords that appear clear and unambiguous may in fact prove to be ambiguous once placed in their context (para. 10). Ambiguity is a conclusion that may be arrived at after looking at the broader context (Bell ExpressVu, at para. 29; Bristol-Myers Squibb Co. v Canada (Attorney General), 2005 SCC 26, at para. 43). However, in this case, the context reinforces rather than detracts from the ordinary grammatical meaning of the words used by the legislators. There is no ambiguity, in my opinion, and thus no gateway at this interpretative stage through which the Court can usher in “creative” remedies.
a. The Environmental Law Context
I agree with my colleagues that the by-law is directed to “protect against noise pollution” (para. 26). The City is therefore dealing with a subject matter a good deal more specific than was the case in Ontario v Canadian Pacific Ltd.,  2 S.C.R. 1031, in which our Court rejected a claim that environmental protection legislation was unconstitutionally “vague”. Gonthier J., for the majority, wrote that[paras. 52 and 59]:
In the context of environmental protection legislation, a strict requirement of drafting precision might well undermine the ability of the legislature to provide for a comprehensive and flexible regime.
.... Legislators must have considerable room to manoeuvre in the field of environmental regulation, and s. 7 [of the Charter] must not be employed to hinder flexible and ambitious legislative approaches to environmental protection.
In my view, with respect, Canadian Pacific has no application to the present appeal. In the first place, the enactment in that case not only required the prosecution to establish the release of a “contaminant” into the natural environment, but added the requirement that such release must cause harm (i.e. in contrast to art. 9(1) where there is no requirement to show a harmful effect). Secondly, here we are not dealing with a general environmental law that applies to all manner of pollution and is therefore necessarily couched in general terms. The Montréal by-law is directed solely and exclusively at noise pollution. The regulatory parameters of “noise” are well established, and may include level, place, type and source limitations, as my colleagues point out, as well as qualitative standards. While I agree that the courts cannot insist on a greater level of drafting precision than the subject matter permits, such indulgence is not applicable to this by-law, which shows in its own provisions other than art. 9(1) that a sensible level of precision can be achieved. The City’s problem is that after setting out specific provisions dealing with noise classified by quality and impact, it added a general ban on noise classified only by source and, as we all agree, source as such has no necessary connection with either noise quality or harmful impact and, therefore, source as such has no necessary connection with “nuisance”. Of course, the City could have employed qualitative limitations in art. 9(1), for example to prohibit a level of noise [translation] “that disturbs the peace and tranquillity of persons [....] in the vicinity”, as in the noise by-law upheld by the Quebec Court of Appeal in R. c. L’Heureux,  Q.J. No. 2135 (QL). My colleagues (impermissibly in my view) seek to read art. 9(1) in the same way as if its language tracked the Quebec City by-law, but this approach fails to respect the very different language used by the Montréal legislators. There are different approaches to noise standards. The problem with art. 9(1) is that it employs none of them to qualify the general ban on “noise produced by sound equipment”.
b. The Civil Liberties Context
The more important general contextual factor is freedom of expression. As my colleagues acknowledge at para. 85, art. 9(1) even as they interpret it limits the guarantee of freedom of expression under the Canadian Charter. Verbal communications are apparently to be restricted to the hearing range of an unaided human voice, which puts open-air politics in Montréal back to the era before Georges-Étienne Cartier addressed the crowd from the balcony at City Hall.
Of course municipal enactments are to be read purposefully. Nevertheless, where enactments infringe rights under the Quebec Charter or the Canadian Charter, the Court has long taken the view that it should not remedy the deficiencies by rewriting the legislative text. In Hunter v Southam,  2 S.C.R. 145, the government argued that if the law fell below the constitutional standard for search and seizure, the Court should read an “appropriate standard” into the provisions. The Court declined to do so, explaining [p. 169]
.... it is the legislature’s responsibility to enact legislation that embodies appropriate safeguards to comply with the Constitution’s requirements. It should not fall to the courts to fill in the details that will render legislative lacunae constitutional.
As stated, the City did not request the Court to read the limitations proposed by my colleagues into its noise by-law. To do so, particularly in a case dealing with freedom of expression, is to co-opt the Court to transform the minimum standard required by the Charter of Quebec or Canada into the maximum freedom allowed under the by-law. That, with respect, is not the proper role of the Court.
c. The Legislative Context
My colleagues write that “[t]he overall context in which a provision was adopted can be determined by reviewing its legislative history and inquiring into its purpose” (para. 17). I agree that noise pollution is a form of public nuisance and that a purpose of the Montréal charter is to allow the City legislators to identify and prohibit those parts of the universe of noise that can be expected to [translation] “cause serious inconvenience or adversely affect either public health or the welfare of the community, or of a significant part of the community”, per Gendreau J. in Anctil v Cour municipale de la Ville de La Pocatière,  C.S. 238, at p. 244.
I agree with my colleagues that this was the City’s mandate. However, recognition of the limited nature of the mandate does not provide an answer to the excessive scope of art. 9(1) of the Montréal noise by-law. It just demonstrates the scope of the problem.
My colleagues also contend that the relevant history shows that art. 9(1) requires an “essential connection with a building” (para. 30). In fact, however, while earlier versions of the noise by-law did link the equivalent of art. 9(1) to a building (e.g. in 1976 the by-law prohibited “noise produced by an apparatus emitting sound outside a building), City Hall subsequently dropped the limitation my colleagues now seek to restore by “interpretation”.
Moreover, the addition of an “essential connection with a building” again contradicts the intention of City Hall. Counsel for the City cites in his factum a number of instances where relief has been granted by City permit from the prohibition in art. 9(1) with respect to parks and other public places where no building is involved (see appellant factum, at paras. 84-87).
d. The Context of the Legal Environment
I further agree with my colleagues that “the legal environment” may provide proper context (para. 25). My colleagues trace the legislative authority conferred on municipalities to deal with nuisances back to 1851 (para. 19). The City of Montréal has thus had more than 150 years of experience in these matters, and must be taken to have been aware that the Quebec courts have consistently required a clear definition of what is prohibited and what is permitted in order that the inhabitants can govern their everyday conduct accordingly. In Laval v Prince,  Q.J. No. 58 (Q.L.), for example, the Quebec Court of Appeal struck down a provision in a City of Laval noise by-law which prohibited [translation]
a noise heard outdoors between 7:00 a.m. and 10:00 p.m. the intensity of which exceeds an equivalent noise level of 55 dB(A), measured over a period of 15 minutes, at the boundary of any property used in whole or in part as a place of residence.
Even though the Laval noise by-law (unlike the Montréal by-law here) specified measurable limits to permitted noise, the court considered those limits to be unreasonably restrictive [para. 35] [translation]:
The municipality may not rely on the first subsection of s. 463 of the Cities and Towns Act to declare that something (in this case, a noise) constitutes a nuisance if it has no harmful qualities, causes no injury and hurts no one. Thus, the municipality exceeds the authority granted to it by this provision in declaring that noise of a certain intensity is prohibited because it constitutes a nuisance when it is not in fact harmful in any way, given that it is less intense than the environmental noise. To sum up, the municipality’s power to define a nuisance and abate it does not include the power to create a nuisance.
The prohibition in the Montréal by-law may also be compared with the Métabetchouan noise by-law upheld as valid by the Quebec Superior Court in Ville de Métabetchouan-Lac à la-Croix v Restaurant-Bar Chez Miville Inc., May 8, 2000, No. 160-36-000006-995 [p. 9] [translation]:
No one may, between the hours of 10 p.m. and 7 a.m., adversely affect the well-being of people in the vicinity by using a radio, television, phonograph, loudspeaker, or other sound-producing instrument or device, or use a musical instrument in such a way as to cause excessive or undue noise.
The unsatisfactory approach of art. 9(1) is further illustrated by reference to the provisions of other by-laws which have come before the Quebec courts for consideration. In Baie-Comeau (Ville) v Bar le Broadway, 1999 Carswell Que 1472, for example, the by-law set out what the legislators meant by a “nuisance” [para. 4] [translation]:
Nuisance: any situation or act that is likely to produce serious inconvenience or adversely affect the life, safety, health, property or comfort of persons, or that deprives them of the exercise of a common right.
A nuisance may originate from a situation, an illegal act, or the abuse of a thing or a right; it is continuous in nature and is intimately linked to the situation or act.
Yet again, in Beloeil (Ville) v Pergola 2000,  Q.J. No. 12782 (QL), the Municipal Court upheld art. 1 of an anti-noise by-law which clearly stated [translation]:
The emission of any noise that disturbs the peace and tranquillity of people in the vicinity constitutes a nuisance and is prohibited.
Examples of similar norms adopted by Quebec municipalities are gathered together by Professor L. Giroux in “Retour sur les compétences municipales en matière de nuisance”, in Développements récents en droit de l’environnement (1999), 299, at pp. 328-30. These include Nutrichef Ltée v Brossard (Ville), C.S. Longueuil, No. 505-36-000006-876, April 12, 1988 [para. 4] [translation]:
Any noise that is caused by any person by any means whatsoever and that is likely to impede the peaceable use of property in the vicinity constitutes a nuisance.
Laval v Prince [para. 34] [translation]:
The emission of any noise that disturbs the peace and tranquillity of the people in the vicinity constitutes a nuisance and is prohibited.
Sévigny v Alimentation G. F. Robin Inc.,  R.R.A. 702 [para. 50] [translation]:
.... to use any noise-producing thing in a manner that disturbs the rest, comfort or well-being of some of or all the people in the vicinity;
.... to produce or allow to be produced, while engaging in the operation or conduct of an industry or business or the exercise of a trade or occupation of any kind, an excessive or unusual noise that disturbs the rest, comfort or well-being of some of or all the people in the vicinity.
[emphasis in original]
In the same vein, the Quebec Court of Appeal in L’Heureux, previously mentioned, upheld as valid the following prohibition [para. 8] [translation]:
Disruptive noise produced by a musical instrument or equipment the purpose of which is to reproduce or amplify sound constitutes a nuisance if:
it disturbs the peace or tranquillity of persons who reside, work or are present in the vicinity, or its level exceeds, in an inhabited place, the maximum level prescribed by Chapter III ....
What is evident from this overview of the legal environment is that there is a massive amount of municipal experience in Quebec crafting anti-noise by-laws which the City of Montréal must be taken to have known about. The City obviously intended, as its counsel more or less stated at the hearing of the appeal, to strike out in a new direction. In my view, the City is entitled to have the validity of that new direction considered by the Court, rather than have its enactment essentially modified to reflect the legislative model the City evidently wished to depart from.
The approach advocated by my colleagues is at odds with the legal environment because it suggests that a municipality is now better off to specify no qualitative noise limits (as in art. 9(1)) because to do so will risk judicial disapproval (as in Prince). It would be better, from the municipality’s point of view, to leave it up to a court to read in the limit the court would have enacted had it been the legislators because the court is likely to uphold the validity of its own handiwork. As my colleagues admit at para. 32, the limit they wish to read into art. 9(1) “is not explicitly mentioned”. Such a wait-till-we-see-what-the-judge-says approach does not benefit the inhabitants however, because they will have no idea until the court makes its pronouncement which activity is permitted and which activity is prohibited.
e. The Immediate Context of the Noise By-law
I agree with my colleagues that the “immediate context of the impugned provision, namely the other provisions of the By-law, is as important as its overall context” (para. 27). We must thus put art. 9(1) in the context of the entire noise by-law, whose relevant articles read as follows:
By-law concerning noise, R.B.C.M. 1994, c. B-3
It is necessary to consider the legislative context in some detail. A specific prohibition is found in art. 8 with respect to inhabited places, which prohibits “disruptive noise whose sound pressure level is greater than the maximum standardized noise level determined by ordinance”. The legislators were careful in art. 8 to specify both a noise level (to be fixed by ordinance) and the location (inhabited areas) limitations. But art. 11 expressly states that “[n]o noise specifically prohibited under articles 9 or 10 may be produced, whether or not it affects an inhabited place”.
Not only are noise level and location limitations absent from art. 9(1), but the legislators clearly state that the prohibitions in art. 9(1) are “[i]n addition to the noise referred to in art. 8”. This can only mean that in art. 9(1) the “noise produced by sound equipment”
need not be disruptive,
need not rise to the level fixed by ordinance, and
need not occur in an inhabited place.
The simple and complete ban of noise by reference to source and to no other criteria is confirmed by art. 13 which provides that “an analysis by simple identification is sufficient in the case of noises specifically prohibited under article 9”.
The by-law defines the expression “disruptive noise” and the City could therefore be expected to use the expression where that is what was intended. The City not only knew how to do so, but it did do so in art. 8. There is no such “disruptive noise” limitation in art. 9(1). Equally, where the City wished to control the intensity or level of noise (as in art. 2) or to differentiate among areas of the city where the noise may be considered a nuisance (art. 8) and therefore likely to interfere with what my colleagues call “peaceful enjoyment of the urban environment” (para. 34) it clearly said so. The legislators placed no such limitations in art. 9(1) which simply imposes a ban by source and makes no mention of the quality or the impact of “noise” which emanates from the source. The City imposed the ban “whether or not [the noise] affects an inhabited place” (art. 11). Thus, art. 9(1) means what it says, as counsel for the City submitted in oral argument, and further [translation] “[i]f I didn’t think so, I wouldn’t be here”(transcript, at p. 6).
C. In My View, With Respect, the Interpretation of Article 9(1) Adopted by the Majority Amounts to Judicial Amendment
As my colleagues state “[o]ur analysis will be based on our interpretation of the provision” (para 8). Their interpretation, to recapitulate, requires a number of steps which, in the context of a law limiting freedom of expression, would more traditionally be considered under the heading of remedy rather than interpretation.
First, as noted, my colleagues’ interpretation requires the Court to read into art. 9(1) the expression “disruptive noise” (para. 31) from art. 8 even though, as they acknowledge at para. 32, “the expression is not explicitly mentioned in art. 9”. The full sentence in their decision [para. 33] reads:
Although disruption is not expressly mentioned in art. 9, this is because, in view of the types of noises which the provision applies, it was considered unnecessary to refer explicitly to disruptive noise in each paragraph.
The problem with this view, again, is that it is clear that the legislators did not intend art. 9(1) to repeat the same limitation (“perturbation”) as art. 8 because art. 9(1) is introduced and governed by the words “[i]n addition to the noise referred to in article 8”. This is because the legislators dealt with the quality of the noise in art. 8 and in art. 9(1) turned to prohibit a particular source of noise, i.e. sound equipment. My colleagues must therefore read out of art. 9(1) the words “[i]n addition to the noise referred to in article 8”. My colleagues then read up the words in art. 9(1) “whether it [the sound equipment] is inside a building or installed or used outside” to require an “essential connection with a building” (para. 30). There is, of course, no such requirement of a “connection” expressed anywhere in art. 9(1), and the legislative history is against such an interpretation, as already mentioned. My colleagues must then read down the effect of art. 9(1) so that “[a]lthough art. 9(1) appears to be broad in scope, [it] applies only to sounds that stand out over the environmental noise” (para. 46). We are no longer in the realm of interpretation. We are in the presence of judicial amendments.
Finally, my colleagues argue that the word “noise” in art. 9(1) suffers from “a latent ambiguity” (para. 24). However, as I have endeavoured to demonstrate, there is no ambiguity in the word “noise” either on a preliminary reading of art. 9(1) itself or, more importantly, having looked at all of the relevant contexts in which art. 9(1) operates or falls for consideration. The fact is, as counsel for the City contends, that art. 9(1) is directed to the elimination of a broad and general source of noise. Such a legislative overreach should be quashed because it not only ignores the characteristics of a “nuisance” but constitutes (as my colleagues concede) an infringement of Montrealers’ freedom of expression, as will shortly be discussed.
D. Article 9(1) of the Noise By-law Is an Invalid Exercise of the City’s Power to Define and Prohibit “Nuisances”
It is well established that the Court adopts a “broad and purposive” approach to the construction of the powers of a municipality: Shell Canada Products Ltd. v Vancouver (City),  1 S.C.R. 231, at pp. 244-45; Nanaimo (City) v Rascal Trucking Ltd.,  1 S.C.R. 342, 2000 SCC 13, at para. 18; Pacific National Investments Ltd. v Victoria (City),  2 S.C.R. 919, 2000 SCC 64, at para. 44; and United Taxi Drivers Fellowship of Southern Alberta v Calgary (City),  1 S.C.R. 485, 2004 SCC 19, at paras. 6 and 8. Nevertheless, there are limits.
1. Article 9(1) Is Ultra Vires
The Quebec Court of Appeal has long taken the position (as it did in this case) that the legislative power conferred on Quebec municipalities to define and prohibit “nuisances” does not extend to defining some activity or thing as a nuisance [translation] “if it has no harmful qualities, causes no injury and hurts no one .... [T]he municipality’s power to define a nuisance and abate it does not include the power to create a nuisance” (Prince, at para. 35, per Chamberland J.A.).
This essential nature of a “nuisance” is confirmed by Quebec text writers on the subject; see Professor J. L’Heureux, Droit municipal québécois (1984), t. II, at p. 723 [translation]:
It is important to note that a nuisance must necessarily be harmful in nature, that is, it must cause serious inconvenience or adversely affect either public health or the welfare of the community.
I agree with this view. It is built on 30 years of consistent Quebec jurisprudence, of which both the National Assembly and Montréal City Hall must be taken to be aware: Prince; Kirkland (Ville) v Phares (1993), 19 M.P.L.R. (2d) 314 (Sup. Ct.); Saint-Michel-Archange (Municipalité) v 2419-6388 Québec Inc.,  R.J.Q. 875 (C.A.); Sablières Laurentiennes Ltée v Ste-Adèle (Ville),  R.L. 486 (C.A.); Sambault v Mercier (Corp. mun. de Ville),  C.S. 147; Beach v Perkins (Mun. de),  C.S. 85; Anctil.
The recognition that not all noise made by a sound equipment should be considered a nuisance is consistent with art. 976 of the Civil Code of Québec, S.Q. 1991, c. 64, which provides:
Neighbours shall suffer the normal neighbourhood annoyances that are not beyond the limit of tolerance they owe each other, according to the nature or location of their land or local custom.
Les voisins doivent accepter les inconvénients normaux du voisinage qui n’excèdent pas les limites de la tolérance qu’ils se doivent, suivant la nature ou la situation de leurs fonds, ou suivant les usages locaux.
While the power of the municipality to “define” nuisances may not be limited to activities that would in any event exceed “the limit of tolerance” that neighbours owe each other under art. 976 of the Civil Code of Quebec, I agree with my colleagues that the power to define nuisances “is [not] unlimited. For example, a municipality may not [....] in exercising its power to regulate nuisances, set standards that are unreasonable” (para. 42). Nor, I would add, can it lawfully define as a nuisance an activity like making “noise” without specifying any proper or relevant “norms” at all.
The Quebec Court of Appeal stated in Saint-Michel-Archange, at p. 880 [translation]:
A nuisance may be the very existence of something, such as a substandard landfill site, or garbage on a piece of land. A nuisance may also arise out of the improper use of something. It must then be determined to what extent the use of this thing adversely affects third persons, or whether the nuisance created by the by-law is truly a nuisance.
[emphasis and citations omitted]
Professor Giroux summarizes the relevant Quebec jurisprudence, at pp. 304‑5 [translation]:
It is now well established in the case law that there are two classes of nuisances. The first class of nuisances are those that can be characterized as such by virtue of their very existence (in se). They are things that are nuisances by nature, such as evil‑smelling waste, an open-air dump or garbage on a lot. The other type of nuisance is a nuisance not by the very nature of a thing, but rather because of the improper or incorrect use of the thing (per se). Noise is perhaps the most obvious example of this ....
Noise accordingly is not “by nature” a nuisance. There must therefore be a specification of abuse. There is none in art. 9(1).
Invalidation of the by-law as ultra vires would therefore accord with the dictum of Beetz J. in Montreal (City) v Arcade Amusements Inc.,  1 S.C.R. 368. In that case, in declaring invalid a part of the Montreal by-law governing amusements, the Court adopted in part, at pp. 404-5, the classic statement of Lord Russell in Kruse v Johnson,  2 Q.B. 91, at p. 100, that if a municipal by-law involves “such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men, the Court might well say, ‘Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires’” (emphasis added).
In R. v Greenbaum,  1 S.C.R. 674, the Court ruled that a City of Toronto by-law that banned unlicenced street vendors could not be upheld under a power “for prohibiting and abating public nuisances” because “the effect of the by-law is to prohibit conduct which may not amount to a public nuisance” (p. 692). It is true that the Toronto law-making authority at issue in that case did not include a power to define nuisances, but if the Court in Greenbaum had adopted the approach of my colleagues in this case it could simply have read into the Toronto by-law a requirement that the prohibition extend only to those vendors of t-shirts whose activities were disruptive or amounted to a nuisance. The Court refused to do so on that occasion (pp. 691-92), and, on that basis, reversed the Ontario Court of Appeal.
2. The Role of Deference
I agree with my colleagues that in combatting the nuisance of noise pollution “[i]t is up to the City to choose the means” (para. 48). The problem is that art. 9(1) of the by-law is much broader than noise pollution because, as my colleagues point out “noise in itself is not necessarily a nuisance” (para. 24). I agree that the courts should leave City Hall with a broad latitude in such matters, but the fact remains, as my colleagues state, that the City’s power is not “unlimited” (para. 42). In my view, it is more respectful of City Hall to declare what it has done to be ultra vires, as I do, rather than saying as my colleagues do, that the legislators cannot mean what they said in art. 9(1). It would be more respectful of our place in the constitutional scheme to send the defective provision back to the legislators for consideration and possible re-enactment. There are, as earlier noted, other approaches to the problem of limits identified in art. 9(1) than the solution adopted by my colleagues. The legislators, not the courts, should make their choice amongst these different options.
Article 9(1) is ultra vires and the analysis need proceed no further.
3. Article 9(1) Is a Patently Unreasonable Exercise of the Delegated Legislative Power to Define and Prohibit Nuisances
The argument is made that where, as here, the City is given an explicit power to define nuisances, the enactment of a definition cannot as such be ultra vires. The by-law can only be quashed if the power of definition is exercised unreasonably (or patently unreasonably).
The Court has not recently pronounced upon the standard of review of the intra vires exercise of legislative power by a municipality. In Rascal Trucking, which dealt with a municipality’s adjudicative function in relation to an alleged nuisance, Major J. summarized the recent jurisprudence, and stated at para. 37:
The conclusion is apparent. The standard upon which courts may entertain a review of intra vires municipal actions should be one of patent unreasonableness.
Thus, as Professor D. J. Mullan noted in his text Administrative Law (2001), “municipalities have been brought within the mainstream of judicial review theory” (p. 113).
Generally speaking, more deference is shown to a municipality’s exercise of a legislative function than an adjudicative function. The standard of review in assessing a by-law, assuming the exercise of the legislative power is otherwise intra vires, would be patent unreasonableness.
In my view, even if this case should be analysed in terms of the exercise of the City’s legislative power to define and prohibit “nuisances”, as opposed to an ultra vires analysis, art. 9(1) is nevertheless a patently unreasonable exercise of it. I will not repeat the analysis. That finding, too, is sufficient to dispose of this case. But there is more.
E. Article 9(1) Infringes Freedom of Expression Under Section 2(b) of the Canadian Charter
I agree with the conclusion of my colleagues at paras. 82-85 of their opinion that the prohibition in art. 9(1) infringes freedom of expression.
F. Article 9(1) Is Not Saved as a Reasonable Limit Prescribed By Law Under Section 1 of the Canadian Charter
I am unable to agree with my colleagues that the infringement of free expression is justified.
Firstly, in my view there are no limits properly “prescribed by law”.
Secondly, art. 9(1) is a disproportionate response to the legitimate problem of noise pollution because it goes beyond what could be considered minimal impairment of the expressive rights of Montrealers.
1. Prescribed by Law
The limitations relied on by my colleagues to justify art. 9(1) would be useful if endorsed by the legislators. However, it would appear that without those “read in”, “read out”, “read up” and “read down” limitations my colleagues themselves would agree that art. 9(1) would fail the s. 1 test. (My colleagues write: “Our analysis will be based on our interpretation of the disposition” (para. 8).) I have already explained why I believe their interpretation is precluded by both the text and concentric circles of context around art. 9(1), as well as by the Court’s traditional reluctance to engage in judicial surgery on otherwise invalid laws which involve infringement of Charter rights: see Schachter v Canada,  2 S.C.R. 679, at p. 728, per La Forest J. :
.... when one is dealing with laws that impinge on the liberty of the subject, the judicial stance should be one that does not encourage the legislature to overreach, and the courts should be slow indeed to provide a corrective.
The City’s solution to this problem of overbreadth and overinclusiveness is its reliance on prosecutorial discretion. But, with respect, that is not a solution. Prosecutorial discretion under art. 9(1) is not governed by criteria prescribed by law. As the Court pointed out in R. v Smith,  1 S.C.R. 1045, at p. 1078.
In its factum, the Crown alleged that such eventual violations could be, and are in fact, avoided through the proper use of prosecutorial discretion to charge for a lesser offence.
In my view the section cannot be salvaged by relying on the discretion of the prosecution not to apply the law in those cases where, in the opinion of the prosecution, its application would be a violation of the Charter. To do so would be to disregard totally s. 52 of the Constitution Act, 1982 which provides that any law which is inconsistent with the Constitution is of no force or effect to the extent of the inconsistency and the courts are duty bound to make that pronouncement, not to delegate the avoidance of a violation to the prosecution or to anyone else for that matter ....
2. Minimal Impairment
In addition to prosecutorial discretion, it is suggested that some potential offenders might hope to benefit from a de minimis exemption, but the status of this defence in Canada is not clear (see R. v Cuerrier,  2 S.C.R. 371, at para. 21, and R. v Hinchey,  3 S.C.R. 1128, at para. 69) and in any event “[t]he defence of de minimis does not mean that the act is justified; it remains unlawful, but on account of its triviality it goes unpunished” (Canadian Foundation for Children, Youth and the Law v Canada (Attorney General),  1 S.C.R. 76, 2004 SCC 4, at para. 203, per Arbour J.)
The permit procedure under art. 20 does little to relieve against the prohibition. Permits are issued as a matter of municipal discretion and are available only for particular occasions (“events, celebrations or demonstrations”). Permits are not otherwise available. The use of sound equipment to communicate an otherwise unobjectionable message should not be subject to the discretion of the City’s Executive Committee, especially where, as here, the criteria for the exercise of its discretion are not specified by the legislators.
Nor can I agree with my colleagues that art. 9(1) passes constitutional muster in this case because the strip club had other ways of communicating its message to the public. I do not believe that a justification that limits itself to the particular circumstances of a particular accused is an adequate answer to a general challenge to the validity of a by-law. The Oakes test (R. v Oakes,  1 S.C.R. 103) requires the Court to determine whether the means chosen are proportionate to the legislative objective, not what the effects of the infringing law are in the case of a particular accused. If it were otherwise, a law could be valid in some situations and not others, creating an unpredictable patchwork. In Smith, for example, the minimum sentence of seven years for importation of drugs was quashed even though on the facts a seven- year sentence might have been considered perfectly fit for that particular offender. In Committee for the Commonwealth of Canada v Canada,  1 S.C.R. 139, a case dealing with a federal by-law prohibiting the distribution of pamphlets at an airport without the Minister’s authorization, L’Heureux Dubé J. observed, at p. 217:
.... the problem is not only that the Regulation applies to the activity at issue, but that it applies to virtually all conceivable activity involving freedom of expression at airports.
See also R. v Zundel,  2 S.C.R. 731, at pp. 771-72, per McLachlin J.
In my view, art. 9(1) is not justified just because these particular respondents may have access to other forms of business communication, any more than in R. v Big M Drug Mart Ltd.,  1 S.C.R. 295, a law that infringed freedom of religion could be saved because the challenger was a corporation and did not itself suffer violation of a religious belief, of which it had none. In that case, it was held that even a drugstore lacking an immortal soul or any religious belief whatsoever could attack a law that was flawed by religious discrimination.
In summary, the reduction of noise pollution is a legitimate objective but art. 9(1) is open-ended and overbroad. It does not minimally impair Montrealers’ freedom of expression. There are other ways in which the respondent could have advertised its wares but the respondent is entitled to challenge a law that prohibits its preferred mode of communication. Montrealers want to be entertained by the radio and receive cell phone calls and use baby alarms and the fact they may be able to be entertained or receive communications in other ways does not diminish the fact their freedom of expression has been infringed in a way that is wholly disproportionate to the City’s legitimate interest. Article 9(1), if it is not struck down, will inhibit free expression in many circumstances where alternative modes of expression are not available, and where the use of such sound equipment in no way bothers the neighbours or adversely affects the quality of urban life.
Art. 9(1) should be declared to be null and void as inconsistent with expressive rights guaranteed under the Canadian Charter.
G. Article 9(1) Infringes Freedom of Expression Under Article 3 of the Quebec Charter
Enough has been said already to indicate that art. 9(1) of the by-law is equally in violation of article 3 of the Quebec Charter and is not justified under art. 9.1 of the Quebec Charter.
As, in my opinion, the provision in the by-law under which the respondent was convicted is invalid, the conviction was properly quashed by the Quebec Court of Appeal. I would therefore dismiss the appeal.
A P P E N D I X
By-law concerning noise, R.B.C.M. 1994, c. B-3
NOISE PRODUCED BY A MOTOR VEHICLE
NOISE IN INHABITED PLACES
Charter of the city of Montreal, 1960, S.Q. 1959-60, c. 102
Serge Barrière (m/s Charest, Séguin, Caron, Montréal), for the appellant.
No one appeared for the respondent.
Daniel Paquin (m/s Beauchemin, Paquin, Jobin, Brisson & Philpot, Montréal), as amicus curiae.
Shaun Nakatsuru (Attorney General of Ontario, Toronto), for the intervener.
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