IN THE SUPREME COURT OF BRITISH COLUMBIA

Transcription

1 IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Between: And Regehr v. North Vancouver (City), 2014 BCSC 513 Megan MacKenzie Regehr The City of North Vancouver Date: Docket: S Registry: Vancouver Petitioner Respondent Before: The Honourable Madam Justice H. Holmes Reasons for Judgment In Chambers The Petitioner, Megan Regehr: Counsel for the Respondent: Counsel for the Attorney General of B.C. Place and Dates of Hearing: Place and Date of Judgment: Appearing on her own behalf and with the assistance of her manager, Mitch Barnes Ryan Berger Erika L. Lambert Jonathan G. Penner Vancouver, B.C. October 4, 2013 November 7, 2013 February 7, 2014 Vancouver, B.C. March 26, 2014

2 Regehr v. North Vancouver (City) Page 2 OVERVIEW [1] Megan Regehr is a singer/songwriter who, as Babe Coal, performs her work in public places. Because she sings in a soft crooning style, she uses a 10-watt amplifier to be better heard over the ambient noise. When Ms. Regehr sang in the City of North Vancouver s civic plaza between Chesterfield and Lonsdale Avenues, and on nearby sidewalks, many people appreciated the performances, but others lodged complaints. After warnings and other communications from City staff, Ms. Regehr received a series of six bylaw notices for contravening s of the City s Noise Control Bylaw, 1987, No. 5819, by making a prohibited noise with equipment on various dates between July 25 and September 4, [2] In this petition, Ms. Regehr brings two constitutional challenges. She challenges s of the Bylaw as violating her right to freedom of expression as guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms. Also, she challenges the B.C. Local Government Bylaw Notice Enforcement Act, which is the statute under which the Bylaw is enforced, claiming that the enforcement procedure violates her rights under s. 11(d) of the Charter to have her liability for the alleged Bylaw infractions determined in a process which presumes her innocence and which affords a fair hearing by a court with jurisdiction to hear her defence. It is common ground that an adjudicator under the Act has no jurisdiction to determine a matter involving the Charter (Act, s. 16). [3] For the reasons I will give below, I have concluded that the constitutional challenges, though carefully argued and certainly not frivolous, should not be determined in this case. That is because the Bylaw, properly interpreted, does not in my view prohibit Ms. Regehr s use of equipment to amplify her singing voice. [4] The bylaw notices will be set aside. THE STATUTORY FRAMEWORK [5] I will first describe those provisions of the Bylaw which are said to support the bylaw notices issued to Ms. Regehr, and also the process under the Act for dispute

3 Regehr v. North Vancouver (City) Page 3 and enforcement of alleged infractions. With that context, which will also explain why Ms. Regehr s constitutional challenges are framed as they are, I will then explain my conclusion that the bylaw notices issued to Ms. Regehr should not stand because her conduct did not contravene the Bylaw as alleged. The Applicable Provisions of the Noise Bylaw [6] The bylaw notices issued to Ms. Regehr allege making a prohibited noise with equipment, contrary to s of the Bylaw. That provision reads as follows: A person shall not make, nor cause to be made, nor permit to be made by: 2. any vehicle, conveyance, vessel, machinery, equipment or device, if any of the same are in the control of such first-mentioned person; a sound, which when received at a point of reception in the municipality, shall constitute a noise as defined or determined pursuant to the provisions of the bylaw[.] [Italics added]. [7] There can be no question that Ms. Regehr s singing created sound. Section of the Bylaw, which I will not quote, defines sound in scientific terms, and there is no suggestion that the definition does not apply. [8] The issue is whether the sound Ms. Regehr made was also noise. A sound made by way of equipment or device will engage the prohibition in s only where that sound also constitutes a noise. [9] The Bylaw defines noise in s The definition, which is nonexhaustive (that is, it includes the described sounds but is not limited to those sounds), has three parts. The first part focusses on sounds that disturb or tend to disturb the peace and enjoyment of the neighbourhood; the second part focusses on whether the sound is made at a level exceeding the permitted limit; and the third part refers to sounds listed in the Bylaw at Schedule B :

4 Regehr v. North Vancouver (City) Page noise includes: 1. any sound, continuous sound or non-continuous sound which disturbs or tends to disturb the peace, quiet, rest, enjoyment, comfort or convenience of the neighbourhood in which such sound is received, or, of any reasonable person in the vicinity of the source of such sound who receives such sound; or, 2. any sound, continuous sound or non-continuous sound, which exceeds a sound level permitted by this bylaw at the point of reception of such sound. 3. any sound, continuous sound or non-continuous sound listed in Schedule B attached hereto[.] [10] The bylaw notices issued to Ms. Regehr rely entirely on Schedule B, referred to in s , as the basis on which the sound Ms. Regehr made in her singing amounted to noise. There is no suggestion in the bylaw notices or in relation to this petition that Ms. Regehr s singing engaged either of the other two main arms of the s definition of noise, or that her singing amounted to noise on a basis outside the scope of that non-exhaustive definition. [11] Schedule B, which is attached to these reasons as Appendix A, is headed Schedule of Objectionable or Disturbing Sounds. It lists and describes twelve categories of sounds, such as animal and bird sounds, various sounds made by vehicles, the sounds of construction activity, and burglar or security system alarms that continue for more than fifteen minutes. The bylaw notices issued to Ms. Regehr rely on paragraph 9 of Schedule B, and, specifically, its reference to voice amplification equipment. Paragraph 9 reads as follows (with the terms said to apply to Ms. Regehr s singing emphasized in italics): 9. Shouting, the use of megaphones or voice amplification equipment, the making of any other noise, noisy conduct by any person in or at any street, wharf, dock, pier, or public place, is prohibited, save and except Peace Officers or Fire Fighters while in the conduct of their lawful duty. [12] The sole basis, then, on which Ms. Regehr is said to have violated the Bylaw, is that her use of voice amplification equipment in a public place fell, the City contends, within paragraph 9 in Schedule B, and is therefore deemed to have made sound which amounts to noise, as defined.

5 Regehr v. North Vancouver (City) Page 5 The Act s Process for Dispute and Enforcement of Bylaw Contraventions [13] I will now briefly describe the process under the Act for enforcement of the violations Ms. Regehr is said to have committed. [14] The Act, which came into force for the City of North Vancouver on May 3, 2004, allows local governments to opt in to a system for adjudication and enforcement of infractions of their bylaws, as an alternative to the courts. Where a local government enacts the regulation necessary to bring itself under the Act, and designates those of its bylaw contraventions that are to be dealt with by bylaw notice under the Act, then the B.C. Offence Act no longer applies to those contraventions. The City took the necessary steps in relation to violations of the Bylaw, among others (see s. 2 and Schedule 1 of the Bylaw Notice Enforcement Regulation, B.C. Reg. 175/2004). [15] For alleged bylaw infractions falling under the Act, no information or charge is sworn or issued. Instead, a bylaw enforcement officer may issue a bylaw notice, indicating the bylaw and the contravention alleged, the amount of the penalty (including the discounts and surcharges for early and late payment, respectively), the consequences of failing to respond to the bylaw notice, the methods of payment, and the procedure for disputing the allegation. Essentially, a person who receives a bylaw notice may either pay the required penalty or request dispute adjudication. If the person fails to do the latter within the indicated time, the penalty is immediately due and payable. Amounts due to a local government under the Act may be enforced as a judgment of the Provincial Court. [16] The process for adjudication is not described in great detail in the Act. The adjudicator must give the parties an opportunity to be heard. A party, or his or her agent, may request a particular form of hearing, whether in person, in writing, or by video or telephone, or other form of electronic conference, and must pay any increased costs to the local government resulting from that form of hearing (Act, s. 18). An in-person hearing must be open to the public, and hearings by other means must be similarly open in a reasonable manner (Act, s. 19). The technical

6 Regehr v. North Vancouver (City) Page 6 and legal rules of evidence do not apply, except those relating to privileged communications, and the adjudicator may receive any evidence that he or she considers credible, trustworthy, and relevant to the dispute (Act, s. 20). [17] An adjudicator applies a different standard of proof from a judge hearing a charge under the Offence Act, and is constrained in the types of determinations he or she may make. The standard of proof for alleged bylaw contraventions enforced by bylaw notice under the Act is proof on a balance of probabilities (Act, s. 21), and not proof beyond a reasonable doubt. Also -- and significantly to Ms. Regehr -- an adjudicator has no jurisdiction to determine certain types of matters, including those involving the Charter. As stated at s. 16 of the Act: Limitation on jurisdiction of adjudicator 16 Whether or not the matter arises in the course of hearing and determining a dispute in respect of a bylaw notice or a compliance agreement, an adjudicator may not decide any of the following: (a) a matter involving the Canadian Charter of Rights and Freedoms; (b) a matter for which notice under section 8 of the Constitutional Question Act is required; (c) a matter involving a determination of aboriginal or treaty rights or claims; (d) a challenge to the validity of the bylaw that is alleged to have been contravened; (e) a prescribed matter. [18] This is the provision which caused Ms. Regehr to bring her challenge to the Act as violating her right, under s. 11(d) of the Charter, to be presumed innocent of an offence until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal. In the hearing concerning the bylaw notices issued to Ms. Regehr, the adjudicator declined to hear her challenge to the Bylaw based on s. 2(b) of the Charter, and, it is common ground, determined that if Ms. Regehr acknowledged, as she did, singing in public places with voice amplification equipment as alleged, then the bylaw notices should stand. [19] As I indicated above, I will not determine Ms. Regehr s constitutional challenges in this case. However, I considered the challenges in detail before

7 Regehr v. North Vancouver (City) Page 7 concluding that the petition should be determined on the threshold issue of whether Ms. Regehr violated the Bylaw, and I will say parenthetically that the challenges are not frivolous ones. The City contends that the Supreme Court of Canada s decision in Montréal (City) v Québec Inc., 2005 SCC 62, is a complete answer to the challenge based on s. 2(b) of the Charter, but the evidence and submissions on this petition seem inadequate to permit such a determination, there being no record from the adjudication below and little evidence in support of the Bylaw under s. 1 of the Charter for the court to consider if it finds a violation, as the Court found in Montréal. As to Ms. Regehr s challenge to the Act based on s. 11(d) of the Charter, it will turn in large part on whether, having been issued the bylaw notices, Ms. Regehr is charged with an offence such that s. 11 is engaged. The jurisprudence concerning s. 11 of the Charter continues to develop, and at this stage the conclusion is not self-evident that the process under the Act is, as the Attorney General contends, a purely administrative one. The Bylaw itself describes the infraction as an offence, and the alleged infractions in this case involved the quintessentially individual conduct of an ordinary member of the community. DID MS. REGEHR CONTRAVENE THE BYLAW? [20] I turn now to the issue of whether Ms. Regehr violated the Bylaw as the City contends. [21] It is important to note that, as I explained above, the bylaw notices, and the City in its submissions, allege only one basis for a conclusion that Ms. Regehr did violate the Bylaw: namely, that she [made] a prohibited noise with equipment, contrary to s of the Bylaw. The City does not allege that Ms. Regehr s singing amounted to noise through some other branch of the definition, such as by exceeding the permissible decibel level (see Bylaw, s ); indeed, Ms. Regehr deposes -- and no other evidence contradicts her on this point -- that after successively reducing the level of amplification each time the City s bylaw enforcement officers spoke to her about complaints, she was singing with the amplifier set at 2-3 watts, a setting at which her voice reached a volume lower than most unamplified singing voices. Nor does the City contend through the bylaw

8 Regehr v. North Vancouver (City) Page 8 notices or in its submissions that the singing amounted to noise because it disturbed or tended to disturb the peace, quiet, rest, enjoyment, comfort or convenience of the neighbourhood (see Bylaw, s ). [22] Thus Ms. Regehr s singing amounted to prohibited noise only if her use of voice amplification equipment fell within Schedule B, paragraph 9, of the Bylaw, in the list of sounds deemed by s to be noise. [23] Ms. Regehr did not question that it did, in the adjudication under the Act or in her petition. With the City, she assumed that any use of voice amplification equipment fell within the prohibition. The parties made their submissions concerning the constitutional challenges on this basis. [24] However, after reserving judgment and considering Ms. Regehr s constitutional challenges, my further examination of the Bylaw led me to invite the parties to make further submissions concerning its proper interpretation. The substance of the Court s memorandum to the parties read as follows: As you are aware, Madam Justice Holmes reserved decision on this matter on November 7, Having further considered the materials and the parties submissions, she requests additional submissions concerning the following. Ms. Regehr framed her s. 2(b) Charter challenge as a direct challenge to the validity of the Noise By-Law, and her and the City s submissions about whether the By-Law should be struck appeared to assume that Ms. Regehr s conduct violated that by-law as noise from equipment (contrary to s ) because it involved the use of voice amplification equipment as described in para. 9 in Schedule B of the By-Law. Madam Justice Holmes asks the parties to consider whether and she has not decided this point Ms. Regehr s conduct may arguably fall outside the scope of para. 9 of Schedule B, if the By-Law (including its schedules) is read in light of s. 2(b) of the Charter. For example, it might be argued that, read to least restrict freedom of expression, para. 9 could be interpreted as prohibiting amplification of the spoken voice, but not amplification of the singing voice. Such an interpretation would rest in part on the initial reference in para. 9 to shouting and megaphones, and the lack of express reference in para. 9 or elsewhere in Schedule B to singing or other forms of music-making (except issuing from vehicles). Madam Justice Holmes therefore asks the parties for their submissions about:

9 Regehr v. North Vancouver (City) Page 9 1. in general, whether an interpretation guided by respect for the principle in s. 2(b) Charter is open for an adjudicator to consider in the process under the Local Government Bylaw Enforcement Act; 2. in general, if it is not, whether and how the matter may be considered by this court in proceedings on a petition; and 3. in light of the parties positions on those issues, whether and how this matter should be addressed in this case. [25] The parties appeared and provided helpful submissions on the indicated points. In those submissions, the respondents referred to clear and binding authority that makes clear that only where a legislative provision is ambiguous will a court turn to Charter principles to assist in the interpretive exercise: see Bell ExpressVu Ltd. v. Rex, 2002 SCC 42, para. 62. [26] I agree with the respondents that resort to Charter principles for the interpretation of paragraph 9 of Schedule B of the Bylaw is unnecessary. However, I disagree with the City about the meaning that paragraph unambiguously expresses when it is properly interpreted. In my view, read in the context of the Bylaw as a whole, paragraph 9 refers to the use of equipment to amplify the spoken voice, and not to the use of equipment to amplify the singing voice. [27] The City submits that the language is unqualified in the phrase, the use of... voice amplification equipment, and that the phrase therefore applies to any type of use, whether for speaking or for singing. I cannot agree, because, as I will explain, the context in which the phrase appears clearly indicates that such was not the intent. [28] The preferred approach to statutory interpretation requires that the words of an Act 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 the legislator. The approach does not alter where a municipal bylaw, rather than a statute, is in issue: Montréal, paras [29] First, the immediate context for the reference to voice amplification equipment appears to limit the phrase to the spoken voice. The phrase appears

10 Regehr v. North Vancouver (City) Page 10 immediately after references to shouting and the use of megaphones, both of which generally involve the use of the spoken voice, and not the singing voice. While it is true that the remainder of paragraph 9 encompasses any type of noise or noisy conduct, so long as it takes place in the indicated type of places, nothing in that latter portion of paragraph 9 refers specifically to singing or to music as the source of that form of noise. For convenience, I will repeat paragraph 9: 9. Shouting, the use of megaphones or voice amplification equipment, the making of any other noise, noisy conduct by any person in or at any street, wharf, dock, pier, or public place, is prohibited, save and except Peace Officers or Fire Fighters while in the conduct of their lawful duty. [30] Second, singing is a subset of music, and the larger context for paragraph 9, namely Schedule B and the Bylaw as a whole, indicate no intent to deem amplified music to be noise regardless of its decibel level or its effect on the peace of the neighbourhood. Schedule B is described by its heading, as by its content, as a Schedule of Objectionable or Disturbing Sounds. A sound described in the schedule is deemed to be noise, regardless of its decibel level (see s ) or of whether it actually tends to disturb the peace of the neighbourhood (see s ). Significantly, Schedule B includes no reference at all to music, except in paragraph 7, which deems amplified sound and the sound of a musical instrument to be noise only where they emanate from a vehicle, can be heard at least 5 metres from the vehicle, and continue for at least two minutes. [31] The failure to include, within the Schedule B categories of deemed noise, any other reference to music, whether amplified or not, suggests that the drafters did not deem music to be inherently or necessarily objectionable or disturbing. It appears, rather, that they intended questions concerning whether amplified and other music amounts to noise to be determined by reference to the other arms of the definition, which examine its sound level and whether it disturbs the community. It seems unlikely that the drafters intended to take a different approach to music that is sung.

11 Regehr v. North Vancouver (City) Page 11 [32] For these reasons, I conclude that paragraph 9, properly interpreted, deems the use of voice amplification equipment to be noise only when the equipment amplifies the spoken voice. ORDER [33] As discussed above, the parties did not ask the adjudicator to consider the interpretation of paragraph 9, and the usual order would therefore be to remit Ms. Regehr s case, with or without directions concerning that interpretation. However, in all the circumstances of this case, I conclude that to do so would not serve the interests of justice. The matter has been fully argued in this Court, along with the constitutional issues that this Court has found unnecessary to determine. [34] Ms. Regehr s petition is therefore granted to the extent that the bylaw notices will be set aside. The Honourable Madam Justice H. Holmes

12 Regehr v. North Vancouver (City) Page 12 APPENDIX A SCHEDULE B NOISE CONTROL BYLAW Schedule of Objectionable or Disturbing Sounds 1. The vocal sound made by an animal, bird or fowl, under the control of, or owned by a person, which is creating any kind of sound continually or sporadically for any period in excess of fifteen (15) minutes. 2. The sound made by a combustion engine that is operated without an effective exhaust muffling system in good working order, being in use whenever such engine is in operation. 3. The sound made by operating a vehicle in such a way that the tires squeal. 4. The sound made by a vehicle horn or other warning device used except under circumstances required or authorized by Section 309 of this bylaw. 5. The sound made by a vehicle, or a vehicle with a trailer, resulting in banging, clanking, squealing, or other like sound due to an improperly secured load, or improperly secured equipment, or due to inadequate maintenance. 6. The sound made through the operation of a "Jacobs or Jake" brake or other type of engine brake on a motor vehicle for any purpose other than as an emergency braking device for the safe operation of the motor vehicle. 7. The amplified sound of a radio, television, player or other sound playback device or amplification equipment, or the sound of a musical instrument, that emanates from a motor vehicle and can be heard at a distance of 5 metres (16.4 ft.) from the motor vehicle; and is continuously made for more than two (2) minutes. 8. The sound generated by construction activity or the activity of construction equipment, is permitted during the following times only: (a) (b) between the hours of 7:00 a.m. to 8:00 p.m., Monday through Friday; between the hours of 9:00 a.m. and 7:00 p.m. on Saturdays. Construction activity is prohibited on Sundays and public holidays. 9. Shouting, the use of megaphones or voice amplification equipment, the making of any other noise, noisy conduct by any person in or at any street, wharf, dock, pier, or public place, is prohibited, save and except Peace Officers or Fire Fighters while in the conduct of their lawful duty.

13 Regehr v. North Vancouver (City) Page The sound of a burglar alarm or security system that continues for more than 15 minutes. 11. The audible sound of a motor vehicle security system which is made either continuously, or intermittently, for a period exceeding one minute; or which produces a false alarm activating more than three times in a 24 hour period, but does not include the activation status signal given when arming or disarming the alarm. A vehicle which has a security system operating in contravention of these requirements shall, for the purposes of Section 813 of the Street and Traffic Bylaw, be deemed to be a vehicle unlawfully placed or maintained or permitted to remain upon a street. 12. The sound generated by Garden and Building Maintenance equipment is permitted during the following times only: a) between the hours of 7:00am and 8:00pm Monday through Friday; b) between the hours 9:00am and 7:00pm Saturdays, Sundays and public holidays.