McHale’s Charter challenge forces Haldimand Council into emergency vote re election sign by-law

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Haldimand County (which includes Caledonia) council is having an emergency session tonight at 6:00pm to modify their restrictive election sign by-law after Gary McHale warned them twice — in 2008 and again in August 2010 — that it violated the Charter of Rights. McHale will be a candidate running in Ward 2 against Councillor Craig Grice for the Oct 25/10 municipal election. 

The current by-law prohibits election signs from being placed on public property, including road allowances, and it restricts the size of signs to just 1.3 sq. metres. 

CHRONOLOGY OF EVENTS  

Sept 22/08 – McHale warns Council not to remove his federal election signs because election sign by-law is illegal 

One month prior to the 2008 federal election in which he ran as an independent candidate McHale wrote to the Manager of Building Controls & By-Law Enforcement to advise that their by-law regarding election signs was illegal, and warned the county not to remove his signs: 

Thanks for the email – I have spoken to Elections Canada which was clear that only signs that endanger the public can be removed. You quoted section 325(2)(1) “a public authority will be allowed to remove a sign which is posted contrary to the law provided advance notice has been given to the person who authorized its posting” This is referring to possible Federal & Provincial laws regarding Crown land. Any land owned by a county is covered by the Supreme Court ruling against the City of Peterborough which ruled that any municipal by-law which prohibits all signs on public property is unconstitutional. See link – http://www.elections.ca/content.asp?section=med&dir=pre&document=may1597&lang=e&textonly=false  

If the county has a by-law prohibiting all signs then it is unconstitutional – if the county has just an understanding with political parties that they will not use public property then the county has no Legal Right to remove the signs. 

In either case, the county cannot touch my signs – to do so is a violation of my Charter Rights of freedom of expression. 

This whole election is over the issue of Rights of individuals and Law & Order. 

Please inform your work crews that they are NOT to touch any election signs. 

If you have any additional information, please feel free to call me – xxx.xxx.xxxx [old phone#]. 

Gary 

Aug 17/10 – McHale advises Haldimand again that its by-law is illegal 

In advance of his candidacy for Ward 2 in the upcoming 2010 municipal election McHale again contacted Haldimand County to advise that its election sign by-law was illegal and calling their attention to a recent Supreme Court ruling that makes Charter violations subject to financial compensation (emphasis in original): 

 The current election sign by-law is illegal – already ruled against by the Supreme Court – this could be the reason why other areas have refused to create such a sign by-law as Haldimand just did – you may want to check out Norfolk’s election sign by-law. Of course if you check out London or other area by-laws and you would find out that Haldimand is wrong.   

A recent Supreme Court ruling makes it clear that any violation of a person’s Charter of Rights and Freedoms is subject to lawsuits – see Regional News story: http://www.caledoniawakeupcall.com/updates/100728regional.html  

Council may wish to quickly amend this by-law before the upcoming election. Don’t say you haven’t been warned.    

Highlighted areas shows what is illegal: 

 9.4 Election Signs 

 Election signs shall be erected in compliance with the following:  

i) Election signs associated with a federal or provincial election shall not be erected earlier than the date of notice of the dropping of the writ for any federal or provincial election;  

ii) Election signs associated with a municipal election shall not be erected or displayed any earlier than 45 days before voting day; 

iii) Election signs shall be removed within forty-eight (48) hours after the election polls close; 

iv)  Election signs shall be erected only on private property and with the permission of the property owner; 

v) Election signs shall not be erected in a road allowance ; 

vi) A sign erected at a premises used for a campaign office shall comply with the applicable regulations of this By-law.   

Sept 07/10 – Haldimand Council convenes emergency session to change election signs by-law 

On Tuesday Sept 07/10 McHale discovered that Council — after consulting with its lawyer — had planned today’s emergency session to ammend the by-law. From the Council agenda/report (emphasis added): 

ANALYSIS: 

Recently the County was advised by an individual [Gary McHale] that he felt the current by-law and practice to restrict election signs from municipal property was contrary to the Charter of Rights and Freedoms. In response Staff contacted the County Solicitor to obtain a legal opinion of whether such a conflict did in fact exist. The Solicitor’s advice is that a blanket prohibition on election signs from all public property, including road allowances, would not likely withstand a Charter challenge. 

  • Haldimand County: ‘Special Council Agenda’ for Sept 08/10 and ‘Report PED-GM-02-2010 RE: Election Signage’ [PDF, 10P]

Sept 08/10, 1:19 am — McHale warns Council of another Charter problem w/by-law 

After discovering that Council intended to act on the issue McHale advised – on Wed Sept 08/10 at that he had also discovered that the by-law’s limitation of signs to 1.2 sq. metres in size was likely illegal as well: 

I was informed Tuesday afternoon that there is a special meeting regarding the sign by-law – amendments are being made to allow the current by-law to stop violating the Charter of Rights and Freedom. Thank you for addressing this issue quickly. 

However, one additional point needs to be addressed. I cannot see what justification councillors have, other than limiting those who would run against them, in limiting the size of election signs to 1.2 sq. m. – which means that many of the Federal election signs in the last election would now be illegal. All political parties have signs large than 1.2 sq. m. which is merely 4×3 ft sign. Any sign over 4×3 would be illegal. 

Considering that the county allows other signs to be much larger than it is not a safety issue and thus the county cannot limit such signs. […] 

It is the County, not the public, who must prove to the court that there is a legal reason to limit people’s Charter Rights. 

I believe if you limit the size of election signs to the standard sizes used by political parties than the law would pass the Charter test – see standard sizes: http://www.plasticlawnsigns.com/ 

This means you must allow 8×4 ft signs which would be 32 sq. ft. or approx. 3.0 sq. m. which is still half the size of some of the signs which the county allows. The fact that the 8×4 ft signs is still half the size of other sizes that are allowed means the county could NEVER provide the court with any legal reason to limit people’s freedom of expression. 

Gary McHale  

Sept 08/10, 1:30 am – McHale supplies Haldimand County w/Court of Appeal decision re sign size limitations 

Shortly after his first email McHale sent a second email containing a link to a Court of Appeal for Ontario Ruling related specifically to limits on sign sizes that backed up his assertions in his 1:17 am email: 

A quick search of sign by-law rules shows that the Ontario Appeals Court has already ruled against placing limits on the sizes of signs. Link to ruling: http://www.canlii.org/en/on/onca/doc/2008/2008onca752/2008onca752.html 

I quote the Highest Court in Ontario:  

[4] In 1994, the Town of Oakville enacted a sign bylaw that prohibited all billboard signs larger than 80 square feet as well as the erection of third party signs. 

[5] In the year 2000, Vann Niagara Ltd., a predecessor corporation of the respondent, filed applications with respect to 52 locations (86 signs) for the erection of billboards. These were denied. 

[6] The respondent challenged the constitutionality of the bylaw. In 2002, a majority of this court declared that both the size restriction provision and the third party sign provision violated the right to freedom of expression under s. 2(b) of the Charter and could not be saved under s. 1: Vann Niagara Ltd. v. Oakville (Town)  2002 CanLII 44984 (ON C.A.), (2002), 60 O.R. (3d) 1 (“Vann No. 1”). 

[7] Borins J.A., with whom Feldman J.A. concurred, held that that the entire bylaw could not be saved under s. 1. The Town failed to demonstrate that the prohibitions on signs over 80 square feet as well as third party signs were rationally connected to the Town’s stated objectives. In particular, there were several “unremarkable industrial zones” in Oakville and the prohibition on third party signs was not rationally connected to the legitimate objective of preserving the aesthetic character of the Town. Moreover, he held that the bylaw, as a total prohibition on a form of expression, did not minimally impair the s. 2(b) right.  

VoC Comment 

It remains to be seen whether Haldimand will ammend both the location and size restrictions tonight. In any event, while one should be pleased they decided to act, one must also wonder how any town council could enact illegal by-laws – apparently without obtaining legal advice until after the second warning by McHale – again – prior to an election. 

This, of course, is not the first time that members of Haldimand council and council as a whole have shown just how out of touch they are with the law and reality during the past four years:

Mayor Marie Trainer and Councillor Leroy Bartlett, in contrast to others on council, have their eyes on occasion:

Forget for a minute that Gary McHale – with almost zero resources – has steadfastly defended the Charter against OPP abuses and native lawlessness for more than four years on behalf of Haldimand’s citizens at great personal cost (including an impressive performance in the 2008 federal election); this one, solitary case in which he is forcing the county to obey the Charter has  proven that he has the exceptional leadership abilities that Haldimand so desperately needs. 

Updates 

  • last update this article: 1826 Sept 08/10 

References

Mark Vandermaas, Editor
VoiceofCanada
info@voiceofcanada.ca

DISCLOSURE: Mark Vandermaas is assisting Mr. McHale and other candidates with their campaigns in Haldimand County for the 2010 municipal election.

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