A group of Surrey residents is challenging the constitutionality of a City of Surrey bylaw that prohibits displaying political signs on private property.
The petitioners have retained Farris LLP law firm to argue that the bylaw as amended on Oct. 18, 2021 presents an unconstitutional infringement on their freedom of expression under Canada’s Charter of Rights and Freedoms. Their case was set to be heard in B.C. Supreme Court in Vancouver on Tuesday and continuing Wednesday, after press deadline.
They are seeking a court order rendering the amendments to be “of no force or effect.”
Matthew Voell, the lawyer representing the City of Surrey, said the city’s position on the constitutional challenge is that while the bylaw is “somewhat inelegantly drafted,” Surrey isn’t purporting to ban political signs.
Kevin Smith, the petitioners’ lawyer, told Justice Nigel Kent on Tuesday that the “essential plank” of his clients’ case is the “overarching pattern of behaviour by the mayor and his council supporters discloses bias against the petitioners and their organization. This is not simply a judicial review – the primary argument is a constitutional challenge to the amendments to the sign bylaw.”
“The petitioners say that the amendments were part of a continuing pattern of behaviour that discloses animus, bias and various steps by the mayor and his supporters to silence the opposition of the petitioners,” Smith told the judge. “We say it’s possible for the court to conclude on the evidence a pattern of behaviour around the coming into force of the amendments suggests that their true purpose was not a legitimate legislative aim but rather to suppress political opposition from the petitioners and others in Surrey.”
The amendments to the city’s 1999 bylaw were passed on a 5-4 vote, with Surrey Mayor Doug McCallum and Safe Surrey Coalition councillors Allison Patton, Laurie Guerra, Mandeep Nagra and Doug Elford voting in favor and councillors Linda Annis, Jack Hundial, Steven Pettigrew and Brenda Locke voting against.
Rob Costanzo, Surrey’s general manager of corporate services, said at the time the changes sought to clarify where political signs may be erected as well as embrace “a broader range of political signs.
“The proliferation of election signage during an election period can be both distracting to motorists and place a significant burden on City resources, at the expense of taxpayers, to ensure compliance,” he stated in a corporate report.
The definition of “political sign” was also broadened to include signs related to political issues, referenda, plebiscites, and initiative and recall petitions. “It will also include signs supporting, opposing, or disapproving of candidates or issues,” Costanzo explained in 2021. “Currently, the definition only captures signs promoting voting at elections, the election of candidates, or the voting for or support of causes in an election.”
The petition was launched by Surrey residents Annie Kaps, Debra (Debi) Johnstone, Colin Pronger, Ivan Scott, Merle Scott and Linda Ypenburg, all members of Keep the RCMP in Surrey. The amended bylaw resulted in them removing related signage from their properties but their petition to the court states they are challenging the amendments to the sign bylaw “not for personal reasons, but in an effort to protect political speech and expression in the City.”
Before it was amended, the bylaw addressed election signage regulating time periods where people could post political signs relating to a political candidate or party basically from the time the writ drops until a couple of weeks after the election.
Smith told the Now-Leader the amended bylaw expands the definition of political signs to include any signage relating to any political issue.
“And that’s really important because what it purports to do is to regulate signs that deal with political issues and under the way the bylaw is drafted, if there’s a political issue that’s not going to be the subject of a vote – I mean, if you just want to talk about, I don’t know, clean drinking water, or you want to talk about ‘Save Ukraine,’ pick an example, it could be a political issue, or in this case Keep the RCMP in Surrey – but is not going to be the subject of a specific vote, the bylaw appears to ban those signs in their entirety,” Smith noted.
Under the amendments, nobody can place “or permit to be placed” a political sign on public or private property except, in the case of federal or provincial byelection, from when the writ is dropped until 14 days after general voting day, and for civic elections and by-elections, from the first day of the nomination period until 14 days after general voting day.
According to the petition to the court, the amended sign bylaw “appear to enact a total ban” on, for example, lawn signs on private property declaring ‘Protect Old Growth Forests,’ car bumper stickers expressing an opinion, or displaying a rainbow flag in a store window.
The City of Surrey, represented in court by Lidstone & Company, stated in its response to the petition that the Community Charter affords the civic government with “express and specific authority” to regulate signage and advertising and require people to take “specified action” to maintain cleanliness and safety of a road next to property they own or occupy.
The City of Surrey maintains council’s decision to amend the bylaw was reasonable, “fell within the range of possible and acceptable outcomes which are defensible in respect of the facts and the law,” and the amendments provided “greater clarity in relation to the period during which political signs may be erected without a permit,” clarify the definition of political signs and ”do not restrict or impair the petitioners’ right to freedom of expression.”