J. 1995 S.H. 114546 114547 114548 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: HER MAJESTY THE QUEEN, on the information of Don Williams (represented by the City of Halifax) -and- A. N. KOSKOLOS REALTY LIMITED DECISION Heard: At Halifax, Nova Scotia, before Justice J. Michael MacDonald on October 10, 1995 Oral Decision: November 1, 1995 Written Release of Decision: November 14, 1995 Counsel: Barry Mien for the Appellant Wayne Harvey for Respondent The respondent owns several buildings on Robie Street in the City of Halifax. These one time family homes have been converted into apartment units. In the spring of 1994 the respondent's proposal to replace these buildings with high density apartment complex was rejected by Halifax City Council. In response the respondent repainted the buildings in haphazard and multi‑coloured fashion. They are an eye‑sore. Following complaints from nearby property owners, the respondent was charged with "owning unsightly properties" contrary to the provisions of the Halifax City Charter. On the 2nd of February, 1995, Judge Sandra Oxner, following trial of the matter, acquitted the respondent of all charges. The Crown now appeals to this Court. The Crown raises two grounds on appeal. 1. That the Learned Trial Judge erred in law in her interpretation of Section 363 of the Halifax City Charter, S.N.S. 1963, c.52. (as amended). 2. That the Learned Trial Judge erred in law in her application of Section 2(b) of the Canadian Charter of Rights and Freedoms. Did the Learned Trial Judge err in law in her interpretation of Section 363 of the Halifax City Charter? The appellant sought conviction under Subsection 363(3) which provides: 363 (3) No person shall permit property owned or occupied by that person to be unsightly or in state of disrepair, or shall permit to remain on any part of the property ashes, junk, rubbish, refuse, derelict vehicle, or bodies or parts of, vehicle, machine or equipment or dilapidated boat, or any thing of any nature whatsoever that by reason of being on the property causes the property to be unsightly or offensive. 1993, c.53, s.9. In considering this subsection, the Learned Trial Judge made the following findings at page of her decision: The facts of the colouration and uneven application of the paint are not in dispute. accept the evidence of the Crown witnesses that they found the buildings, as repainted by the Defendant, to be in their opinion "unsightly". accept they were of the honest opinion that the attention getting style of painting of the Koskolos Realty Limited properties detracted from their pride in their neighbourhood and their enjoyment of the view of their neighbourhood from their homes. The Learned Trial Judge then considered the more difficult question of whether or not Subsection 263(3) applied to the circumstances of the case at bar. After reviewing the relevant authorities at page of her decision the learned trial judge concluded: In my view, the use of the value judgement word "unsightly" in the context of Subsection where it is found without any expressed standards to define or limit it causes an ambiguity in the meaning of the word that calls for the statutory interpretation aids referred to above. agree with the Defence submission that the meaning of "unsightly" in Subsection must be ascertained by reference to the words associated with it, "a state of disrepair or the accumulation of physical debris". In my opinion, this would exclude the manner in which the properties are painted from the operation of the Statute. would, therefore, enter an acquittal." Section 363 must be interpreted in manner prescribed by section 9(5) of the Interpretation Act, R.S.N.S.1989, as amended: "9 (5) Every enactment shall be deemed remedial and interpreted to insure the attainment of its objects by considering among other matters (a) the occasion and necessity for the enactment; (b) the circumstances existing at the time it was passed; (c) the mischief to be remedied; (d) the object to be attained; (e) the former law, including other enactments upon the same or similar subjects;" Driedger on the Construction of Statutes (3rd edition) at page 131 discusses "The modern rule" of interpretation: "There is only one rule in modern interpretation, namely, courts are obliged to determine the meaning of legislation in its total context, having regard to the purpose of the legislation, the consequences of proposed interpretations, the presumptions and special rules of interpretation, as well as admissible external aids. In other words, the courts must consider and take into account all relevant and admissible indicators of legislative interpretation that is appropriate. An appropriate interpretation is one that can be justified in terms of (a) its plausibility, that is, its compliance with the legislative text; (b) its efficacy, that is, its promotion of the legislative purpose; and (c) its acceptability, that is, the outcome is reasonable and just." Furthermore, certain portions of subsection 363(3) should not be considered in isolation. In fact, the entire section should be considered as whole. Driedger at page 245 explains: "In A.G. v. Prince Ernest Augustus of Hanover, Viscount Simonds wrote: ...the elementary rule must be observed that no one should profess to understand any part of statute or of any other document before he has read the whole of it. Until he has done so he is not entitled to say that it or any part of it is clear and unambiguous. The importance of looking to the Act as whole was also emphasized by Lord Herschell in Colquhoun v. Brooks: It is beyond dispute...that we are entitled and indeed bound when constructing the terms of any provision found in statute to consider any other parts of the Act which throw light upon the intention of the legislature and which may serve to shew that the particular provision ought not to be construed as it would be if considered alone and apart from the rest of the Act. In Greenshields v. The Queen Locke J. wrote: The broad general rule for the construction of statutes is that section or enactment must be construed as whole each portion throwing light, if need be, on the rest. Each provision or part of provision must be read both in its immediate context and in the context of the Act as whole. When words are read in their immediate context, the reader forms an impression of their meaning. This meaning may be vague or precise, clear or ambiguous. Any impressions based on immediate context must be supplemented by considering the rest of the Act, including both other provisions of the Act and its various structural components." Section 363 in its entirety provides: "363 (1) The owner or occupier of property shall keep the property free from any accumulation of wood shavings, paper, sawdust, dry and inflammable grass or weeds or other combustible material. (2) No person shall permit any grass, bush or hedge located on property owned by that person to become unsightly in relation to neighbouring properties. (3) No person shall permit property owned or occupied by that person to be unsightly or in state of disrepair, or shall permit to remain on any part of the property ashes, junk, rubbish, refuse, derelict vehicle, or bodies or parts of, vehicle, machine or equipment or dilapidated boat, or any thing of any nature whatsoever that by reason of being on the property causes the property to be unsightly or offense. 1993, c.53, s.9. (4) No person shall permit property owned by that person to be unsightly in relation to neighbouring properties by reason of the failure to maintain walkway, driveway or parking area to the standard common to the neighbourhood. (5) No person shall permit property owned by that person to be unsightly in relation to the neighbouring properties by reason of lack of ground covering or other surfacing. (6) No person shall permit building owned by that person to become unsightly in relation to neighbouring properties by reason of the failure to maintain the exterior finish of the building. (7) Every person who fails to remove from property owned or occupied by that person combustible material or to correct any unsightly condition within forty‑eight hours after receipt of request to do so from the City is guilty of an offence and liable, on summary conviction, to penalty not exceeding two thousand dollars and in default of payment to imprisonment for period not exceeding thirty days." Section 363 when read as whole appears to be dealing with unsightliness in the context of dilapidation. Furthermore this section appears to make distinction between property that is unsightly (subsections to 5) and buildings that are unsightly (subsection 6). When considered in isolation "property" would normally include "buildings". Yet, in the context of section 363, property is described in context that is exclusive of buildings. For example: Subsection deals with the accumulation of wood shavings, paper, sawdust, and grass or weeds. This reference to property obviously applies to the land as opposed to buildings. Subsection deals with grass, bushes and hedges, which applies to land as opposed to buildings. Subsection 3 applies to the accumulation of ashes, junk, rubbish, refuse, derelict vehicles et cetera. This is a reference to land as opposed to buildings. Subsection deals with driveways and parking areas. Again this deals with land as opposed to buildings. Subsection refers "ground covering or other surfaces" and again this deals with land. It is only subsection 6 that refers exclusively to the unsightliness of buildings. The appellant quite properly concedes that subsection has no application to the case at bar. Although dealing with the exterior finishes of buildings, it is confined to unsightliness caused by failure to maintain. It requires an element of dilapidation or neglect. In the case at bar the appellant alleges that the unsightliness was caused by the owner\'s overt actions. I conclude that when the legislators turned their minds to the unsightliness of buildings, they drafted subsection 6. They restricted this offence to unsightliness caused only by neglect. It is interesting to note that subsection 363(3) is recent amendment to the Halifax City Charter. The references to unsightly in that subsection cannot be considered in isolation. When one considers the references to unsightly in the context of the entire section one must conclude that unsightly refers to the types of things mentioned in subsection including the accumulation of ashes, junk, rubbish et cetera. Unsightly in that subsection cannot be interpreted to include the exterior finishes of buildings because this category is already dealt with in subsection 6. If the legislators wish to have the actions of the respondent considered an offence an appropriate amendment to subsection would be necessary. I therefore find that the learned trial judge, when interpreting s. 363(3) made no error in law. In light of my finding on this first issue it is unnecessary for me to consider the constitutional issue raised by the respondent. It is suffice to say that any proposed amendment must be drafted in way that does not invoke Section 24 of the Charter of Rights and Freedoms. The Crown\'s appeal is dismissed. invite, within two weeks, written submissions on costs.
The respondent landowner haphazardly painted his buildings in order to protest a decision of Halifax city council. The city charged the respondent under the unsightly premises provisions of the Halifax City Charter. At trial, the court held the wording of the City Charter could not support the charge, and that a conviction would violate the respondent's s.2(b) Charter rights to freedom of expression. The city appealed. Dismissing the appeal, that the trial judge did not commit an error in law. S.363(3) of the Halifax City Charter, under which the respondent was charged, refers to land as opposed to buildings, and cannot be interpreted to include the exterior finishes of buildings, a category already dealt with in s.363(6), which covers the unsightliness of buildings caused by neglect, not overt actions.