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Available on SSRN.

Also published in the Supreme Court Law Review 34.2 (2006): 83-101.

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In 1994, the City of Montréal attempted to deal with troublesome noises by enacting a bylaw dealing with the control of noise in the metropolitan area. The By-law became the subject of litigation in the Supreme Court of Canada case Montréal (City) v. 2952-1366 Québec Inc. The comment focuses almost entirely on the Court’s s. 2(b) analysis. It first explores the science of noise and its control is fundamental to analyzing how sound might legitimately affect freedom of expression, before critiquing the Court’s assessment of noise as expression. It looks at how the Court provided a rejuvenated understanding of the relevance of the manner and place of communication in an analysis of expression by refining its approach from Commonwealth; however, the decision is disappointing for two reasons: the growing use of “factor” analysis in the Court’s constitutional jurisprudence and the lack of sophistication in the basic s. 2(b) analysis. A call for a more nuanced approach to s. 2(b) is made.