A Small Victory

Yesterday, myself and Tim Broughton, one of the managers of Toronto's C'est What? venue, stood in court to challenge two anti-graffiti fines that were issued against C'est What? for posters promoting a residency of Paint shows from February 2011.

We argued against the prosecution on two grounds: 1) Tim put forth the factual argument that the band operated independently of C'est What? in putting up posters according to what they believed to be the venue's guidelines and limitations on postering; thus charging the venue was a misapplication of law; and 2) I presented a three-fold constitutional argument that blanket bans on postering are in fact an infringement of s.2(b) of the Canadian Charter of Rights and Freedoms pertaining to freedom of expression.

The case law was entirely on our side. Ramsden v. Peterborough was the landmark decision, in which the Supreme Court of Canada unanimously agreed that prohibiting postering on public property violated s.2(b) of the Charter. As postering is protected by the Charter, then any bylaws limiting this right must provide only "reasonable limits" that are minimally restrictive. Postering on public property, regardless of its content, constitutes "expression," and no persuasive distinction exists between using public space for leaflet distribution and using public property for the display of posters.

A subsequent case against the organizers of the Evolve Festival in Halifax laid 18 charges of postering on grounds that the city had created "information kiosks" for posters to be displayed. However, it was argued not only on constitutional grounds (as in Ramsden) but also that such kiosks were in fact an unreasonable limitation on freedom of expression because of their inconvenient locations and small numbers. The Halifax Regional Municipality dropped the charges on the grounds that there was "no reasonable prospect of conviction on the charges before the court."

A similar case in Montreal saw Jaggi Singh, as well as organizers of the Pop Montreal festival, charged with postering on "surface(s) (not) designated for such purposes." The Quebec Court of Appeal, in July 2010, declared the anti-littering bylaw (under which posters fell) to be "invalid" and "unconstitutional," on the grounds that bylaw, as in Ramsden, violates s.2(b) of the Charter.

The City of Toronto, under Rob Ford, is claiming that they also have similar provisions on "kiosks" and designated spaces that do allow for postering legally. However, as in the case in Halifax, such limitations are not "minimally restrictive," and I am of the opinion that Toronto is in violation of the Charter just as Peterborough, Halifax, and Montreal were, and as the Supreme Court of Canada has agreed.

Taking all of this into consideration, the City dropped both postering charges against C'est What? after myself as a representative of the band refused to take the fine in their place on constitutional grounds. The condition of the dismissal was that C'est What? present the City with their revised terms of performance to clearly state that postering is only allowed where legally deemed appropriate -- which, sadly, no one is entirely clear where those spots are, nor is it all that different from the provisions C'est What? already had in place.

The bottom line is that our charges were dismissed and it is worth celebrating (which is what the show on Dec. 8 at C'est What? is meant to acknowledge). However, it is still unclear where bands, promoters, and businesses are and are not allowed to poster without risking a fine.

Bans on postering represent an attack on the arts, especially in times of political conservatism when arts can be seen as subversive. 85% of the 413 infractions stemming from anti-postering in Montreal in 2009 were against the cultural industries. Posters are an accessible and affordable form of advertising for locally-targeted events in an oversaturated internet market. By-laws against postering are simply creating barriers for artists of a certain income demographic to get their messages out. Unless one has the resources to advertise in mainstream media, which is often controlled by certain interests, or own property and put up a big billboard, ideas and expressions are limited. The concept of “public space” contains the assumption that people freely express themselves as permitted under s.2(b) of the Charter.

In Toronto's case, shy of banding together to file a constitutional challenge (which I would say isn't entirely outside the realm of possibility) the onus sadly is placed on the backs of artists to stand up for their rights. Poster and promote as you would, and if fines are issued, do not pay them. Go to court. Use the above case law to argue your points. And drop me a line, I'd be happy to help.

Your in solidarity,
Robb Johannes