(By CCF Litigation Director Christine Van Geyn and CTF Atlantic Director Paige MacPherson)
Yarmouth town council recently enacted a self-serving bylaw that protects them from political competition.
The municipal ordinance, passed on July 9, prohibits citizens from putting up election signs on their own property during federal, provincial and municipal elections.
How can Yarmouth councillors do this? The answer is simple: they can’t.
The law is a blatant violation of the constitutionally protected right to free expression. Free expression has long been regarded by the courts as fundamental to the functioning of democracy and to the maintenance and preservation of our most fundamental freedoms. Political speech lies at the very heart of freedom of expression, and plays a critical role in the development of our society. There is no time when political speech is more important than during an election.
Council claims that the rationale behind the sign bylaw is threefold. First, reduce plastic waste. Second, reduce “visual clutter.” And third, make elections more equitable for candidates by removing the cost of signs.
These rationales all collapse under the barest scrutiny.
The bylaw does not reduce plastic waste. It restricts election signs, no matter what material they are made of. And the bylaw is only concerned with election signs, not with other types of signs that may be made of plastic. The bylaw is not content-neutral, and is clearly designed to restrict political speech during an election period, not other types of possible plastic waste.
The bylaw also does not effectively reduce clutter. It applies throughout Yarmouth, not merely in the downtown area where sightlines may matter (which in itself is a flimsy argument at best). What’s more, the Supreme Court has held that “[a]s between a total restriction of this important right and some litter, surely some litter must be tolerated.” That was in a case dealing with sticking poster advertisements on public property, a far less rigidly protected form of speech.
But by far, the worst rationale provided by council has to be “evening the playing field.” This rationale is in fact undermined by the sign bylaw. The inability of new candidates to promote their names or images does not make elections more financially equitable and accessible. It protects incumbents with name recognition. The sign bylaw was passed by councillors who will benefit from incumbent advantage and appears self-serving.
During the June 11 Yarmouth town council meeting, Mayor Pam Mood commented that she has “put out more signs than anyone,” and would like to avoid this cost in the future. A mayor who has extensively advertised with signs since her election in 2012 will be in an extremely advantageous position to maintain her name recognition relative to any newcomer who is now prohibited from advertising with signs.
It is especially concerning that Yarmouth council does not seem concerned that they have enacted an illegal law. Coun. Jim MacLeod even stated “maybe I look forward to a challenge.”
But this isn’t an admirable challenge like scaling a mountain. There is a cost to enacting illegal laws. That cost is not just to free expression and citizens’ ability to participate in the political process. There is also a direct cost to the taxpayers of Yarmouth.
Yarmouth residents who will have their freedom of expression unjustly restricted by this bylaw can challenge the law in court, and the cost of defending it will be paid by Yarmouth taxpayers. Surely the Yarmouth public library and road repairs are better uses of tax dollars than defending illegal laws enacted by self-serving politicians.
Town councillors must respect citizens’ rights to express themselves and repeal this law before the next municipal election in October.
Christine Van Geyn is the litigation director for the Canadian Constitution Foundation, a charity that advocates for the constitutional rights of Canadians in the courts and through public opinion. Paige MacPherson is Atlantic director of the Canadian Taxpayers Federation.