Statute only governs business signs and is not unconstitutional, lawyer says. But enforcing it on people's lawn signs is a whole other problem

Signs, signs, like the old song says, are everywhere.

“Please Slow Down,” “Every Child Matters,” “Home of A Crossroads Public School Grad,” “Farmers Feed Cities,” birthday, anniversary or retirement placards, even “Merry Christmas” salutations – and many other signs that people sometimes post on their lawn, or neighbourhood public property, all have one thing in common.

They are not allowed under Niagara-on-the-Lake's sign bylaw.

It's the medium, not the message, because “ground” signs (like flashing signs and fluorescent signs) are among several types of signs that are illegal in Niagara-on-the-Lake. At least, the bylaw says so.

But that bylaw itself, and possibly many similar municipal sign statutes across the country, is not worth the paper it's printed on, according to a retired NOTL lawyer. The town's statute only covers commercial signs and has no jurisdiciton over any private signs, he says.

It's a complicated, yet simple, scenario, says Ron Fritz, the former dean of the University of Saskatchewan's law school. 

No matter what the message is – think, “Celebrating Our Traditional Marriage,” which offended many people when it was erected by a Virgil man this summer – the bylaw declares that such lawn signs are verboten. 

It is rarely enforced, though apparently it was when Rudi Koller put up his “traditional marriage” placard. But enforcement is a whole other can of worms.

Ultimately, it doesn't matter what the bylaw, the town or the mayor says because the Supreme Court of Canada has decreed that “municipalities have a very, very limited jurisdiction under the Charter to deal with them,” Fritz said in an interview.

“The reality is, the Supreme Court of Canada has been very clear, twice, decades ago, that freedom of expression in a free and democratic society, includes your ability to put up protest signs,” the Queenston resident said.

So, even if a bylaw officer or other town official tries to enforce the NOTL statute against people's ground or other signs it doesn't matter – the country's top court has already spoken on the issue, Fritz contends.

Another crucial factor is the text of the bylaw itself. 

The preamble to the law, Section 1.01, “Purpose and Scope,” states the statute is designed to “recognize the commercial communication requirements of all sectors of the business community, while preserving the unique character of the town, its scenic characteristics and preventing distraction to motorists.”

All laudable and necessary, said Fritz, but none of that pertains to residents' non-commercial signs on private or public property.

Furthermore, in Section 1.02, the “Scope” of the bylaw clearly states it does not regulate “the copy or message of signs.”

“It's very clear that it’s commercial signs they are concerned about, and it’s form, and not content,” Fritz said.

So, short of crossing into the area of criminal harassment or hate speech, it really doesn't matter what people put on their signs, or how many there are, Fritz said.

That means, based on the Supreme Court's rulings, and the bylaw's own wording, if the town enforces an unenforceable bylaw and, say, confiscates someone's signs, or issues a ticket for violating the bylaw, “there are theoretically legal actions that the town is opening itself up to,” he said.

Two high-profile Ontario municipal law experts contacted by The Lake Report for their assessment refused to comment because they either have matters before the Town of NOTL or other conflicts on the issue.

Perhaps not surprisingly, the municipality has a different view on the whole affair than Fritz and notes that its bylaw does not ban protest signs, specifically.

Staff, who sought legal advice on the matter, told Lord Mayor Betty Disero the statute is “consistent with the purpose of sign bylaws in other jurisdictions – to ensure public safety, to avoid confusion, to preserve the aesthetic of certain areas and to avoid creating a blight on the landscape.”

While acknowledging the bylaw is meant to help businesses communicate, they also said “the application of municipal sign bylaw restrictions to residential property does not appear to have been thoroughly tested by the courts,” adding that NOTL's bylaw is “likely” to stand up to a court challenge.

Fritz contends the Supreme Court's rulings are clear.

Disero feels sign bylaws serve an important purpose and one of her concerns is the potential for “a lot of clutter” in neighbourhoods.

“When or if you have a number of signs on each property, after a while people become numb to them and stop connecting with the message or stop reading them,” she told The Lake Report. 

“It becomes a barrage of colours with some kind of printing.”

“If you follow that through, over time people will want to make the signs bigger and bigger to get attention and what does that do to the way our town is seen?” 

“We may not see an immediate difference if there was no sign bylaw, but we have to look long term,” Disero said.

She also worries “we would be destroying some of the beautiful views of front yards if we allowed everyone to fill their yards with signs.”

Fritz argues none of that matters, legally.

It also doesn't matter whether you put your sign on your own property or public land, he said. You're free to do so, though the government can remove your sign from public property – but can't charge you under the sign bylaw because you have a constitutional right to erect a sign, he said.

Sign bylaws have been around for eons and “I suspect that the town bylaw is simply a copy” of wording from one drafted by some other municipality, Fritz said.

“They copy them from municipalities that have the financial wherewithal and the legal firepower to spend the time drafting. Drafting is a hellish exercise. And I doubt there is much originality in the sign bylaw.”

He also said he doesn’t believe there is any intent on the part of the mayor or town staff to mislead the public into following the bylaw. “But the problem is she IS misleading the public, but she is doing it innocently.”

The bylaw “goes on for pages and pages. But when you boil it all down, you're dealing with commercial and business signs,” Fritz said.

“And, yes, you can point to this section or that subsection at a generalized level. But when you pull back and look at the Purpose section,” it’s obvious the statute is not meant to deal with personal signs.

“The Purpose and the Scope sections make it very clear that what they're trying to do is to operate within the constraints of the Supreme Court of Canada decisions.”

And in the end, the argument “but it’s in the bylaw” doesn’t wash, Fritz said, “because the Supreme Court has made it very clear that you cannot legislate in this fashion.”

*You can read the full 2012 NOTL sign bylaw at notl.com/content/laws, along with amendments that were made in 2018 and 2019.