If a poster goes up illegally but no one sees it happen, should anyone get charged?
The city seems to think so, and has embarked on a costly crusade against the event venues listed on handbills plastered on downtown hydro poles.
It doesn't seem to matter who hung up the notices, that the Supreme Court has protected postering rights or that those who dispute the tickets handed out by the city have a good chance of winning. Municipal Licensing and Standards takes the compliance-by-sanction approach, slapping fines of up to $500 per poster on those who flout the poorly advertised law.
The bylaw, which was drafted in 2006 but came into effect in 2010, bans postering on light or hydro poles, parking meters and bus shelters, leaving officially sanctioned kiosks as the only legal option. It was part of a 20-year street-furniture deal with Astral Media, which included the installation of 2,000 postering boards and 500 postering columns.
Thanks to seemingly minimal public education about the new legal landscape, many bar owners first heard of the law last year through a court summons or ticket.
The Horseshoe Tavern, Lee's Palace, Clinton's and the Cameron House - all venues that claim they never poster - are among those charged. Horseshoe and Lee's co-owner Jeff Cohen says he specifically urges bands not to bother, offering them free print and online advertising instead.
"Nevertheless, local bands who play our venues sometimes put up street posters," Cohen tells NOW. "Instead of finding the band and fining them, [the city's] handing us the fine - even though we've never seen the actual poster."
Under the bylaw, the city can charge either the person who puts up the poster, the event organizer or the venue, says Lance Cumberbatch, director of investigations with Municipal Licensing and Standards.
A city bylaw officer who wasn't comfortable being named says enforcement agents have been assigned lofty quotas, so they go for the venues because they're easiest to locate.
"We were told not to waste time by talking to the venue owners and just issue the tickets," he says, noting that charges against venues rarely stick when disputed in court. "They waste court time and my time. It's a problem with the bylaw."
The claim was supported Tuesday, January 17, when Lee's Palace was in court over one of its alleged infractions. (The Cameron's case comes up March 5). City prosecutor Paula Liu noted that it's "a bit of a convoluted bylaw" and requested more time to study it, but Justice Ronald Yamanaka dismissed the case. He found there was insufficient evidence that Lee's Palace was guilty, leaving the bar owners high-fiving with smug satisfaction.
"I'd love to sit down with the city and help them communicate with bands about what the laws are," said a grinning Cohen moments after successfully representing himself in the case. "Instead, they're out fining businesses for anything they can as a means of generating revenue. And the city says it's pro-business."
In principle, Cohen agrees with the bylaw, saying postering is environmentally unsound and unnecessary thanks to the internet. But others - including the Supreme Court of Canada - say limiting posters limits freedom of speech.
In a 1993 ruling, the court said postering promotes political and social discourse, and that a total ban would limit expression - an issue Toronto may have skirted with its postering kiosks. While the city does allow non-commercial notices on city property, lawyer Dave Steele believes concerts also fall under the Charter definition.
"A political event, music/art event, pic of [Mayor Rob] Ford's face, Banksy-type shit - all that is easily protected," writes Steele, who works for CUPE, in an email. No stranger to controversy, he was active in a legal fight against Fredericton, NB's postering-averse BIA while in law school. He believes postering remains a necessary communication tool, especially among people who don't have time to troll the internet.
"[Posters] are localized, they're cheap and accessible and they claim public space," he said. "It's hard to get [everyone] to go to your website, but people are just standing at that bus stop for 20 minutes each day with all those empty telephone poles around."
Lee's isn't the only bar contesting the bylaw. Lawyer Jerry Levitan, who represents Clinton's and other establishments, is one of at least two lawyers who have raised the constitutional issue in recent weeks. In response, he says, the city has put several cases over to late March to study the law. He's also heard that officers have stopped laying charges in the meantime.
Jamie Gillis, owner of prolific outdoor postering company Dr. Jamie's Events, believes posters should be allowed in downtown areas like Queen West and pokes fun at a bylaw that authorizes charges without proof of who put up a given poster.
"Makes me wonder what would happen if I put up a bunch of posters advertising something for Rob Ford," he mused. "Would Rob Ford get in trouble? If he didn't, that would be discrimination."