TSBP bylaw 46-2020 – Issued without legitimate authority; Removes freedom of expression; Is illegal; Was politically motivated. May 18, 2020 number 10-3

Summary

May 7, 2020 council passed, without proper notice to the public, by-law 46-2020, which banned many activities critical of council or staff and gave bylaws officers the power to demand identification from any person.

The by-law includes provisions that would:

  • Prohibit wearing a t-shirt in Bluewater Park that say: “don’t cut education funding” ($400 fine for “picketing” – by-law section 2.1)
  • Prohibit saying anything to the Clerk in a public place deemed (by the clerk) to be annoying ($750 fine for “nuisance” – section 2.10)
  • Prohibit expressing an opinion in a public place ($400 fine for “soliciting” – section 2.14)
  • Require people to provide identification when requested by an officer in an arbitrary, random check (($1000 fine for “obstruction of an officer” – section 3.2.1.)

To make any bylaw, the town must have clear and legitimate authority in a provincial statute.   There is no such legitimate authority for many of the prohibitions and requirements of by-law 46-2020.

The sections listed and possibly other sections are illegal because they are not authorized by any statute, and also because they violate Charter of Freedoms and Rights provisions, especially freedom of expression.

The bylaw should be rescinded.

Full Analysis

May 7, 2020 council passed, without proper notice to the public, by-law 46-2020, which banned many activities critical of council or staff and gave bylaws officers the power to demand identification from any person.

The bylaw is at:

https://southbrucepeninsula.civicweb.net/filepro/documents?expanded=6066,88541&preview=90215

Not all bylaw sections are of concern.

It is my submission that: much of the bylaw was made for improper political purpose; much was made without legitimate authority; many sections are illegally in conflict with the charter of rights and freedoms; and the bylaw was improperly and unnecessarily rushed through without proper notice.

Some of highest concern sections are in the table below.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Bylaw section offence name Definition Prohibition /requirement in bylaw 46-2020 Examples of contravention Set fine ($) Max penalty ($)[1]
2.1 Picket “Picket” shall mean any activity associated with protesting/objecting and may include the display of signs, placards, flags, shirts, hats, etc. which portrays a message, symbols or marks, silence, shouting, chanting, singing, marching, standing and sitting. No person shall picket in or on any Public Place unless authorized by the Town or authorized by the person under contract with the Town for the use of the Public Place. wearing a hat or t-shirt that says “STOP DAMAGING PLOVER HABITAT” at thje beach at Sauble” 400 5000
2.3 Loitering “Loitering” means the lingering, hanging about and sleeping in a Public Place

without permission from the Town, obstructing or making difficult the passage of persons or vehicles in a Public Place, or failing to move on after having been

requested to do so.

No person shall loiter in or on any Public Place standing on the beach (lingering) watching the sunset 400 5000

 

Bylaw section Name of offence Definition in bylaw Prohibition /requirement Example of contravention Set fine ($) Max penalty ($)[2]
2.10 Nuisance

 

“Nuisance” shall mean any action or activity that is annoying, unpleasant, unwanted, disturbing, obnoxious, racist, abusive, threatening, creates a disturbance, damages property or impacts the safety of a person.” No person shall cause a nuisance or display disorderly conduct in or on any Public Place criticising the clerk or mayor (“unwanted”) in a public place.

 

750 5000
             
2.14 solicit

 

“Solicit” shall mean to ask for money, sell a product, give or exchange an idea or opinion; seek to obtain something from a person or give something to a person. No person shall solicit in or on a Public Place without the express permission of the Town. “giving an opinion” in a public place re food trucks or any other issue.  Could even be fined for “giving an opinion” in a delegation to council. 400 5000

 

 

Bylaw section Name of offence Definition in bylaw Prohibition /requirement Example of contravention Set fine ($) Max penalty ($)[3]
3.2.1 Fail provide identification NA Every person who is required by an Officer to provide identification shall identify themselves to the Officer by giving their full and correct name, date of birth and address. Fail to identify self in a random check while walking on sidewalk 1000 5000

1)  Improper political purpose

It is my submission that many (but not all) of the prohibitions and requirements were made for one purpose only and that is to stop public disagreement with or criticism of the mayor and certain staff members.

These are political and private purposes.  It is wrong for council to be using bylaws for political or private purpose.

(See Nanaimo (City) v. Rascal Trucking Ltd.CanLII – 2000 SCC 13 (CanLII) at p. 343)

2) Did the town have proper and legitimate authority?

Municipalities cannot make any bylaw without clear authority provided by provincial statute.   For the type of bylaw made, that authority, if it existed, would be in the Municipal Act.

The writer of bylaw 46-2020 seems to understand this and has listed in the preamble to the bylaw several sections of the Municipal Act which presumably are included as the authority by which all sections of the bylaw were passed.

But in fact the sections of the Municipal Act presented as authorizing the prohibitions and requirements do not authorize all of the sections of the bylaw.  Not even in a stretch.

At least some sections of the bylaw, including (but not necessarily limited to) the ones listed in the table above, are not legitimately authorized.  The sections not legitimately authorized by provincial statute are illegal.

Below is an analysis of whether the four Municipal Act sections provide authority for the bylaw prohibitions and requirements.

a. Municipal Act section 9

Powers of a natural person

9 A municipality has the capacity, rights, powers and privileges of a natural person for the purpose of exercising its authority under this or any other Act.  2006, c  32, Sched. A, s. 8.

The bylaw writer has in error referred to this as Municipal Act section 8.   The error is inconsequential.

Section 9 of the Municipal Act is completely irrelevant, has nothing to do with by-law 46-2020, and does not provide legitimate authority for any section of bylaw 46-2020.

b.  Municipal Act Section 127

Municipal Act section 127 is used as authority for bylaw section 2.2 (no littering), which is not contested here.

c.  Municipal Act section 8

There is an error in the bylaw 46-2020 preamble.  The preamble to bylaw 46-2020 says:

And whereas the Municipal Act, S.O. 2001, c25, Section 9, provides that Sections 8 and 11 shall be interpreted broadly so as to confer broad authority on municipalities to (a) enable municipalities to govern their affairs as they consider appropriate and, (b) enhance their ability to respond to municipal issues.

It is actually section 8 of the Municipal Act, not section 9, that has these words and provisions.

The main supposed authorization provided by the bylaw writer is really Municipal Act section 8.

From the Municipal Act, section 8 is:

Scope of powers

8 (1)  The powers of a municipality under this or any other Act shall be interpreted broadly so as to confer broad authority on the municipality to enable the municipality to govern its affairs as it considers appropriate and to enhance the municipality’s ability to respond to municipal issues.  2006, c. 32, Sched. A, s. 8.

In the by-law preamble, the author misrepresents section 8 (which she mistakenly refers to as section 9).

The reference in preamble to the by-law says:

“Sections 8 [sic]and 11 shall be interpreted broadly ….”

Section 8 actually says:

“The powers of a municipality under this or any other Act shall be interpreted broadly …”

This is an error, but I am not sure if the error is important.

The key words in Municipal Act section 8 are “interpreted broadly” and “govern its affairs”, which appear in both original section 8 and the bylaw preamble versions.

It is clear by implication that the bylaw writer (TSBP clerk Cathrae) sees Municipal Act section 8 and especially the words “interpreted broadly” and “govern their affairs” as authority to make just about any bylaw.

But that interpretation does not stand up to analysis and is unsupportable.   The inescapable conclusion from a proper and thorough reading of the whole Municipal Act and the case law regarding the scope of municipal powers is that municipal powers to make bylaws are not wide open but in contrast are tightly circumscribed in law.

The “anything goes” view is contradicted by: 1) other sections of the Municipal Act; 2) extensive case law; and,  3) the charter of freedoms and rights (part of a federal statute).

The “anything goes” section 8 interpretation is contradicted by other sections of the Municipal Act

While Municipal Act s. 8, if read without the rest of the Municipal Act might in an extreme  stretch suggest that municipalities have broad scope of things they can do in bylaws,  a full reading of the relevant parts of the Municipal Act does not support that “interpreted broadly” reading.

Analysis of clarifying sections of the Municipal Act follows.

MUNICIPAL ACT section 2

Section 2 of MUNICIPAL ACT (which Cathrae conveniently ignored) says:

Purposes

2 Municipalities are created by the Province of Ontario to be responsible and accountable governments with respect to matters within their jurisdiction and each municipality is given powers and duties under this Act and many other Acts for the purpose of providing good government with respect to those matters.  2006, c. 32, Sched. A, s. 2.

Note the words:

“with respect to matters within their jurisdiction

And,

“providing good government with respect to those matters

Putting those two parts together gives this clear direction:

..  “each municipality is given powers and duties under this Act and many other Acts for the purpose of providing good government with respect to matters within their jurisdiction.”

Section 8 does not give carte blanche.  Section 8 only gives broad authority to govern “their affairs”.     Section 8 only gives broad authority to govern matters that are “within their jurisdiction”.

Section 2 clarifies that Municipalities have no powers regarding matters that are not “within their jurisdiction”.   Section 8 cannot be interpreted as “anything goes”.

MUNICIPAL ACT section 273

(1)  Upon the application of any person, the Superior Court of Justice may quash a by-law of a municipality in whole or in part for illegality.  2001, c. 25, s. 273 (1).

If Municipal Act section 8 were to be interpreted as carte blanche then there would be no illegal bylaws and section 273 would have no meaning and no use as all bylaws would be considered legal (intra vires).

Section 8 cannot be interpreted as carte blanche.

Section 272

Restriction on quashing by-law

272 A by-law passed in good faith under any Act shall not be quashed or open to review in whole or in part by any court because of the unreasonableness or supposed unreasonableness of the by-law.  2001, c. 25, s. 272.

This says unreasonableness is not a valid reason for court to challenge or quash.

This section also supports that the carte blanche interpretation  applies only to bylaws made in good faith that are within the authority of the municipality.

The obvious corollary is that powers and duties not within their jurisdiction should not be interpreted broadly but should be seen as illegal.

The “interpreted broadly” of Municipal Act section 8 only applies to powers and duties within their jurisdiction.

Case law on broadness of Municipal powers re bylaws:

Case law (also called jurisprudence) does not support the “anything goes” interpretation.

Excerpts from key cases follow.

“Shell” minority McLaughlin

Judicial review of municipal decisions is necessary.  It is important that municipalities not assume powers which have not been conferred on them, that they not violate civil liberties, that disputes between them and other statutory bodies be resolved, and that abuses of power are checked.  On the other hand, it is important that the courts not unduly confine municipalities in the responsible exercise of the powers which the legislature has conferred on them. (McLaughlin for the minority, Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 SCR p. 241)

“Shell” minority McLaughlin

Consequently, courts should be reluctant to interfere with the decisions of municipal councils.  Judicial intervention is warranted only where a municipality’s exercise of its powers is clearly ultra vires, or where council has run afoul of one of the other accepted limits on municipal power.

(McLaughlin for the minority,Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 SCR at p. 248)

“Greenbaum”

Municipalities are entirely the creatures of provincial statutes and can therefore exercise only those powers which are explicitly conferred on them by provincial statute.  A court should look to the purpose and wording of the provincial enabling legislation when deciding whether or not a municipality has been empowered to pass a certain by law.  The by laws themselves are to be read to fit within the parameters of the empowering provincial statute where they are susceptible to more than one interpretation.  Courts must be vigilant, however, in ensuring that municipalities do not impinge upon the civil or common law rights of citizens in passing ultra vires by laws.

R. v. Greenbaum [1993 1 S.C.R.] at para 6)

“Harding”

“[29] The recent trend in jurisprudence involving municipalities is to move away from the principle that municipal powers are closely circumscribed by their governing statute, and to interpret powers conferred on municipalities broadly. This approach defers to the decisions of locally elected officials. See Croplife Canada v. City of Toronto, [2005] O.J. No. 1896 (Ont. C.A.).

[30] However, that deferential approach cannot, in my view, extend to giving a council standing to do indirectly what the Legislature has not authorized it to do directly. “

Harding v. Fraser, 2006 CanLII 21784 (ON SC) paras. 29, 30

“Weir”

Section 242 of the Municipal Act, R.S.O. 1970, c. 284, 1979 CanLII 1871 (ON SC) authorizes municipalities to pass by-laws “for the health, safety, morality and welfare of the inhabitants of the municipality in matters not specifically provided for by this Act as may be deemed expedient and are not contrary to law …”. Section 242 has been given a very narrow and restrictive interpretation by the Courts. Unless the section is approached with caution a municipality could be deemed to be empowered to legislate in a most sweeping way..

Re Weir and The Queen (1979), 1979 CanLII 1871 (ON SC), 26 O.R. (2d) 326 (Div. Ct.), at pdf p. 13.

“Nanaimo”

A consideration of the relevant factors in this case militates against a deferential standard on the question of jurisdiction. Section 936 requires the municipal council to apply principles of statutory interpretation in order to answer the legal question of the scope of its authority. On such questions, municipalities do not possess any greater institutional competence or expertise than the courts. The test on jurisdiction and questions of law is correctness. Further, the nature of municipal government and the extent of municipal expertise do not warrant a heightened degree of deference on review. First, municipalities exercise a plenary set of legislative and executive powers yet do not have an independent constitutional status. They essentially represent delegated government. Second, municipalities are political bodies. Neither experience nor proficiency in municipal law and municipal planning is required to be elected a councillor.

Finally, council decisions are more often by-products of the local political milieu than a considered attempt to follow legal or institutional precedent and are necessarily motivated by political considerations and not by an entirely impartial application of expertise. As a result, the courts may review those jurisdictional questions on a standard of correctness.

Nanaimo (City) v. Rascal Trucking Ltd.CanLII – 2000 SCC 13 (CanLII) ps. 343, 344

“London Property Management “

[5] RSJ Holdings also sets out the standard of review of a by-law. In reviewing the legality of the by-law, the proper standard is correctness. On the question of “illegality” which is central to a s. 273 review, municipalities do not possess any greater institutional expertise than the courts.

London Property Management Association v. City of London, 2011 ONSC 4710 para 5

“Cash Converters Canada Inc”

The question of whether a by-law is ultra vires the jurisdiction of the enacting municipality is a question of law which is reviewed on the standard of correctness.

Cash Converters Canada Inc. v. Oshawa (City) (2007), 86 O.R. (3d) 401, at para. 20

All of this says that the “interpreted broadly” doctrine does not apply to powers not within a municipalities, or to illegal bylaws.  (Which is just common sense.)

Municipal Act section 8 words “interpreted broadly” cannot be used as authority to make bylaws that are made without statute authority.

The words “interpreted broadly” in Municipal Act section 8 apply to reasonableness, not legality.

Conflict with charter

Municipal Act section 14:

Conflict between by-law and statutes, etc.

14 (1)  A by-law is without effect to the extent of any conflict with,

            (a)       a provincial or federal Act or a regulation made under such an Act; or

            (b)       an instrument of a legislative nature, including an order, licence or approval, made or issued under a provincial or federal Act or regulation.  2001, c. 25, s. 14.

Same

(2)  Without restricting the generality of subsection (1), there is a conflict between a by-law of a municipality and an Act, regulation or instrument described in that subsection if the by-law frustrates the purpose of the Act, regulation or instrument.  2006, c. 32, Sched. A, s. 10.

“Interpreted broadly” cannot be used as authority to make bylaws in conflict with federal acts.  The Charter of rights and freedoms is part of a federal act – the constitution act.

Lots of sections of by-law 46-2020 are in conflict with the Charter especially the freedom of expression provision.

b) Municipal act section 128

Is Municipal Act section 128 legitimate authorization for the “nuisance” section of by law 46- 2020?

Bylaw 46-2020 preamble says:

And whereas the Municipal Act, S.O. 2001, c. 25, Section 128, provides that a local municipality may prohibit and regulate with respect to public nuisances, including matters that, in the opinion of Council are or could become public nuisances.

Clearly any municipality can regulate with respect to “public nuisances”.

The question is whether they can regulate using the by-law 46-2020 definition:

“Nuisance” shall mean any action or activity that is annoying, unpleasant, unwanted, disturbing, obnoxious, racist, abusive, threatening, creates a disturbance, damages property or impacts the safety of a person.

The Municipal Act does not define “public nuisance”.

But case law and other authorities do.

public nuisance

a nuisance which affects numerous members of the public or the public at large (how many people it takes to make a public is unknown), as distinguished from a nuisance which only does harm to a neighbor or a few private individuals. Example: a factory which spews out clouds of noxious fumes is a public nuisance but playing drums at three in the morning is a private nuisance bothering only the neighbors.

Law.com

—————-

in order to find that public nuisance has occurred, an action must inconvenience many people and offend the public interest.

Climate Change and the Law: Part One – An Introduction to Mitigation in Alberta, 2019 CanLIIDocs 34

———————

    • public nuisance(also referred to as “common nuisance”) is defined by English scholar Sir J. F. Stephen as: “an act not warranted by law, or an omission to discharge a legal duty, which act or omission obstructs or causes inconvenience or damage to the public in the exercise of rights common to all His Majesty’s subjects
    • private nuisanceis the interference with the right of specific people

” ( Sir J. F. Stephen, Digest of the Criminal Law, p.120)

The bylaw allows for prohibition any of “annoying, unpleasant, unwanted, disturbing, obnoxious, racist, abusive, threatening” directed at a person.  So the bylaw does not prohibit public nuisance, or at least seeks to prohibit nuisances that are not public nuisances.  Municipal Act section 128 does not authorize bylaw prohibitions of things that are not public nuisances,

The things that the bylaw seeks to prohibit are not even private nuisances.

Private nuisance interferes with a right of specific people.  “Nuisance” defined in the bylaw is private nuisance, not public nuisance.  There is no general provision in the MA or any statute to make bylaws to prohibit “private nuisance”.

Many people find criticism “unwanted”.   But that does not make it a “right” to be protected from criticism in the municipal context.   Council members and staff have no right of protection from criticism, no matter how unwanted.

The bylaw would mean that criticism of the clerk (which will be characterized by the clerk as “unwanted”) is an offence, punishable by a $400 fine.  Allowing such a bylaw was clearly not the intent of Municipal Act section 128).

The public nuisance allowed by Municipal Act s 128 is for inconvenience to many and offence of the public interest.

The legislature did not define or mean to define public nuisance as anything so broad as to include “unwanted” criticism.

While MA section does authorize making of a public nuisance bylaw, it does not authorize the private nuisance bylaw and does not authorize the private nuisance section of bylaw 46-2020.

Bylaw 46 2020 section 2.10 is made without legitimate authority and is therefore illegal.

It is also absurd.

4)  no proper notice  –  emergency process use but not an emergency

The TSBP procedural by-law requires public notice of by-laws.   Sections A13.1.1 and  A13.1.2  provide:

A 13.1.1  No by-law except a by-law to confirm the proceedings of Council shall be presented to Council unless the subject matter thereof and draft by-law has been presented in a report or discussed under a notice of motion or as a matter of urgency. By-Laws presented in a report or discussed under notice of motion or as a matter of urgency may be placed on a subsequent Council agenda for consideration, but may not be placed on the same agenda as the original report, notice of motion or matter of urgency introducing the by-law.

A13.1.2  Notwithstanding the foregoing, where a by-law is presented as requiring immediate adoption, Council may allow for its consideration with the support of a resolution receiving 2/3 majority support in a recorded vote. Should the resolution to consider the by-law not receive 2/3 majority support, the by-law will be placed on a future Council agenda for consideration.

So the only time a council can pass a bylaw in a meeting where the bylaw is first introduced is when a two-thirds majority of council supports it as “requiring immediate adoption”.

The clerk’s report regarding bylaw 46-2020 provides this:

Due to the COVlD19 pandemic, associated Provincial Orders and the potential to relax or repeal such orders, it has become necessary to bring the by—law to Council now. This is in anticipation of the long weekend, a potential influx of tourists and the need for the set fines to be approved.

So the claimed urgency was clearly COVID19 restrictions.

But the reason does not stand up to scrutiny.  As only one section has anything to do with COVID19:

2.11   No person shall be in or on any Public Place which has been closed or deemed by the Town not to be occupied for any reason whatsoever.

But this section just duplicates provincial orders, which can already be enforced by the town’s by-laws officers. The section does not address any urgent need.

There was no urgency.  There was no valid requirement for “immediate adoption”.

There was no proper notice.

 

[1] if choose to fight ticket in provincial court

[2] if choose to fight ticket in provincial court

[3] if choose to fight ticket in provincial court

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Food Trucks on Residential Streets and in Parks – The Town’s Zoning Bylaw Amendment Deception (10-2 May 2, 2020)

The town has published several documents which indicated that the town is planning to amend the zoning by-law to permit food trucks in commercial zones, in parks and on any road allowances, including in front of people’s homes.

For example the planner’s report of April 21 said:

The application proposes to define and create provisions for a “restaurant—mobile” and establish where they would be permitted, including two of the Town’s commercial zones as well as public parklands and road allowances owned by the Town.

Assuming this statement was true, I wrote in a post:

The town is planning to amend the zoning by-law to permit food trucks in Commercial zones, in parks and on streets in front of people’s homes.

The town is indeed planning to amend the zoning by-law to permit food trucks in Commercial zones.

But contrary to the words above from the planner’s report, the town is not even contemplating amending the zoning bylaw to permit food trucks in parks and on road allowances.

Residents should still be concerned.

Because they are still going to permit food trucks in parks and on streets in front of homes, but instead of doing it by amending the zoning bylaw, they are just going to do it by ignoring the zoning bylaw.  They will proceed as if the zoning by-law did not exist.  They will simply contravene the zoning by-law, as they did with the 2019 food truck trial.

Many of us were deceived by this tactical move by the town.

If there is no zoning bylaw amendment permitting food trucks in parks and road allowances, then residents cannot very well appeal to the Local Planning Appeal Tribunal to reverse or nullify such a zoning change.

When the town does permit food trucks in parks or street allowances, negatively affected residents will be left with few choices other than filing a complaint with the town to the effect that the food trucks in parks or street allowances violate the zoning bylaw.

But then we will be in a situation where the same people who allegedly are violating the zoning by-law (the town) are also responsible for enforcing the zoning by-law.   This presents a bit of an obstacle for residents looking for fairness and conformance to the zoning by-law and conformance to the intent of the planning act.

Craig

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Effect of 2017 Bulldozing And Other Grooming Of Beach At Sauble On Erosion And Piping Plover Habitat Loss Due To Beach Erosion (9-2)

Click on the link below to view my report on how the Bulldozing of Sauble Beach in August and September of 2017 made the beach vulnerable to severe erosion by the storms of January 2019 and April 26 2019, resulting in plover habitat loss.

 

Bulldozing and storms effect erosion and plover habitat loss

 

Craig Gammie

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Janice Jackson’s SHAM “consultation” re food trucks

Janice Jackson tried to get food trucks through council at least twice before.  She failed.  Because it was unfair to residents negatively affected.  And unfair to existing food services businesses.

In spite of the unfairness, Ms. Jackson is pushing it through again.

There are several issues:

The sham public consultation

From April 15 to 29 a food trucks survey was posted on a website named “Open Mic South Bruce Peninsula”.  The town is portraying that survey as a genuine and legitimate public consultation.

It was neither.  It was not a genuine or meaningful consultation at all.   It was a sham.

The outcome of the open mic survey was clearly predetermined and the survey was designed to produce that predetermined outcome.

Here are some concerns about the open mic survey:

1) The explanation of the issue on the open mic website was extremely biased in favour of food trucks.

2) Negative impact on residents and existing food service businesses was not included in the website explanation.

3) The economic benefits claimed in the website explanation were ridiculous and unfounded.  The economic analysis was written by someone with no qualifications to comment on economics.  The benefits expressed are dubious at best.

4) There was no announcement that the issue was on the website.   So virtually no one knew unless they were told privately.

5) People had to register to complete the survey.   But they could do so anonymously.  That means one person could respond a hundred times.  There was a huge potential for bias and fraud.

6) The website said: “Give your opinion by filling out the survey.”  But the survey asked for answers to only three narrow questions: 1) are you for or against food trucks?  2. where do you live?  3. [a third question was not relevant and was not opinion].   Filling out the survey did not “give an opinion”.  There may have been a place to provide real meaningful opinion, but it’s reasonable to expect that the words “Give your opinion by filling out the survey” would have led participants to only answer the three survey questions.

The open mic survey was a sham and a fraud.

And even if the survey had been done properly (which it was not), it would be wrong to make a decision based on “majority rule”.  And it is especially wrong to base local decisions on what the majority want when the survey includes non-residents.   Our system is the rule of law.

Illegal bypass of zoning bylaw amendment process

In the March 19, 2019 council meeting where the food truck issue was discussed, Janice Jackson identified the zoning bylaw as an impediment to her food trucks agenda, and asked staff if there was a way to get around the requirement to amend the zoning bylaw.

In the March 19 meeting Bill Klingenberg, Director of Community Services, was happy to respond, telling Ms. Jackson that there was no need to amend the zoning bylaw if the allowance of food trucks was characterized as a “trial”.   This is of course was wrong and preposterous.

I recently talked to Bill Klingenberg.   As we chatted he changed his story.  He said that they do not need zoning bylaw amendments because some of the proposed locations are road allowances and road allowances are not zoned.

That is equally wrong.  And equally preposterous.

Klingenberg said he got that advice from Bruce County planner Jack van Dorp.   I called Jack van Dorp.  I asked him if he had told town staff that road allowances were not zoned or were exempt from zoning requirements or prohibitions.   Mr. van Dorp would not reply.  He just pivoted, obfuscated, and ran.  (Mr. van Dorp is between a rock and a hard place.  Ms. Jackson tried to get him fired in 2015 for not rubber-stamping a project of hers.)

Unfair to negatively affected residents

All proposed food truck locations are zoned residential or environmental hazard or institutional, none of which permits food trucks.  Residents have a right to quiet enjoyment of their properties and common areas.  Residents have the right to count on the zoning bylaw to protect them from arbitrary land use.  Allowing food trucks where the zoning bylaw prohibits them is unfair to these residents, and is inconsiderate and illegal.  Allowing food trucks on residential streets is unfair to these residents, and is inconsiderate regardless of whether road allowances are included in the zoning bylaw restrictions. Residents also have a right not to be hit by arbitrary zoning bylaw changes.  Allowing food trucks is unfair to residents, and is wrong.

Unfair to existing businesses

The zoning currently does not allow food trucks.  Food service operators have made decisions based in part on the existence of zoning restrictions.  Like residents, they have a right to count on the zoning bylaw.  They have a right to count on the zoning bylaw not being arbitrarily amended to allow food trucks.   Allowing food trucks is unfair to current food service operations.

Council has shut out residents who do not agree with them.  Council (except Deputy Kirkand who voted against food trucks) has shut out businesses who do not agree with them.   Council has ignored the letter and intent of the zoning bylaw to the detriment of residents and existing businesses.

If they get away with putting food trucks on residential streets or parks, you might ask yourself what is next, and what might be put in front of your house.

If you are concerned about these council shenanigans send a protest email addressed “To council: …..”, and submit your email to clerk Angie Cathrae at         angie.cathrae@southbrucepeninsula.com

A report will be before council May 7.  So email council soon.

Please forward this to neighbours and friends who may be interested.

 

Craig Gammie

 

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Post of commentary 2-19 … “TSBP Staff Recklessly Destroy Sauble Piping Plover Habitat”

This post about damage to Piping Plover Habitat was circulated 1 April 2012, but was not published.

 

The Piping Plover is listed in schedule 2 of the Species At Risk In Ontario List (regulation 230/08) as an endangered species. There are no geographical constraints applied, which means that the Endangered Species Act (the Act”) protects Piping Plovers and their habitat everywhere in Ontario.

Section 10 of the Act prohibits habitat damage:

10. (1) No person shall damage or destroy the habitat of,
(a) a species that is listed on the Species at Risk in Ontario List as an endangered or threatened species; or
(b) a species that is listed on the Species at Risk in Ontario List as an extirpated species, if the species is prescribed by the regulations for the purpose of this clause. 2007, c. 6, s. 10 (1).

A 2011 June 20 letter from Mark Shoreman, Ministry of Natural Resources (MNR), to TSBP indicated:

“As provided in previous correspondence and communication to the Town of South Bruce Peninsula, the habitat Piping Plover requires and uses at Sauble Beach is protected under section 10 of the Endangered Species Act. This Ministry advises that beach raking and the removal of the woody debris north of sixth street to the north end of the beach (ending at the Sauble River) at this time would be detrimental to the species and would damage or destroy the habitat required for nest, feeding, and raising young.”

The June 21, 2011 TSBP Committee Of The Whole meeting minutes include:

Councillor Jackson explained that we passed a resolution to clean the beach. The entire beach wasn’t cleaned because it rained and the south end only was cleaned. She feels that the uncleaned beach is ugly and is hazardous to people. She does not want to destroy the Plover habitat. Mayor Close read a letter from the MNR indicating that the Town would be charged if we chose to clean the beach from Sixth Street North to the Sauble River. He indicated that we cannot direct staff to perform an illegal action. Councillor Jackson did not agree and felt that the letter said that the beach maintenance is the responsibility of the municipality. Mayor Close is ruling the recommendation from Councillor Jackson out of order and does not want it to go forward the way it reads. He indicated that Council can overrule the Mayor’s decision with 2/3 majority. Committee discussed the fact that we are not to disturb the habitat. They asked to have a representative from Wasaga Beach come to speak to Council as he grooms around the Plover nests each day.
Recommendation to Council: THAT the notice of motion by Councillor Jackson is ruled out of order until such time as Mark Shoreman from Wasaga Beach can attend as a delegation with regard to grooming around the Plover nests.

In a 2011 July 19 council meeting MNR’s Mark Shoreman and Suzanne Robinson repeatedly stated that between Sixth Street and the Sauble River the “woody debris” was “protected habitat”, and that removing the debris would be a violation of section 10 of the Act.

Yet in spite of all this clear and consistent direction from the MNR, in late March the plover habitat between Sixth Street and the river was completely destroyed, the beach raked absolutely clean, the “woody debris” removed.

This was and is an absolutely clear contravention of section 10 of the Act.

The Ministry of Natural Resources (MNR) is investigating. I understand that as of Friday March 30th, the MNR has issued an order to rehabilitate the habitat.

In addition to the order to rehabilitate, the MNR may charge the town. The fine upon conviction could be as high as a million dollars. This would be an unacceptable burden on the taxpayers.

Council must initiate an investigation to find out who was responsible for the habitat destruction, and make that known to the public and to the MNR. And unless it is found that the person or persons responsible honestly and reasonably believed in the existence of facts that, if true, would render that person’s conduct innocent, then the responsible person or persons should be immediately dismissed and held accountable for all costs.
Craig

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repost of commentary 1-29 ….The Summer of ’11 At Sauble Beach: Driftwood, Dunes, and Little Birds In Peril

The following was originally published July 24, 2017 in as a letter in the Owen Sound Sun Times.

Editor:

The July 20 OSST edition reported Councillor Jackson’s reaction following a meeting of TSBP council and MNR officials Mark Shoreman and Suzanne Robinson.

The article has Councillor Jackson saying “They [MNR officials] recommend or advise certain practices but, when push comes to shove, demand the municipality act according to MNR’s wishes.”

The MNR officials did no such thing.  In the July 19 meeting the MNR officials stated that Piping Plover habitat destruction was prohibited by section 10 of the Endangered Species Act, informed council of what sort of driftwood removal would be considered habitat destruction, advised the town that if we want to comply we ought not destroy habitat, and indicated that there would be consequences if we did.

That’s exactly the same message as in the letter from Mark Shoreman to the town of June 20.  There was no change in the message between June 20 and July 19, and no change during the July 19th meeting.  The law has not changed and the MNR advice to comply with the law has been absolutely consistent.

Far from “They [MNR] keep going around in circles”, as Ms. Jackson suggests, the MNR officials have spoken clearly, correctly, and consistently.

If anyone “keeps going around in circles”, it’s Councillor Jackson.

Early in the discussion Councillor Jackson demanded that the town be allowed “right now” to remove driftwood from the part of the beach North of sixth.

MNR’s Mark Shoreman answered that driftwood removal would be considered habitat destruction and a violation of “section ten”.  It sounded like a “no” to me.

Yet Councillor Jackson, feigning deafness, or feigning something, repeated the same demand.  Mr. Shoreman gave the same response.

Then Councillor Jackson made the same demand nine more times, (and got the same response, nine more times), and would have asked all day if Mayor Close had not stepped in and cut the “questions”.

But the incessant circling was not the most entertaining of Councillor Jackson’s contributions.

The rhetoric coming from the good councillor was over the top.

Ten times Ms. Jackson claimed that “we” have lost the whole north end of the beach to the plovers.  But Ms. Jackson is just plain wrong.  The beach north of sixth is almost as well used as the part south of sixth.

And taking a page from Mayor Close’s May 24th “we’re-gonna-get-the-blog-criminals” press release, Ms. Jackson offered this: “We have complete intrusion of the entire north end of our beach. One hundred percent.  Our people have lost their beach to the plovers.  That’s beyond unreasonable.  That’s criminal.”

“That’s Criminal”?

C’mon Councillor Jackson.  There is lots of room to walk in the sand on the beach North of sixth.  You really need to take that walk.

Council’s meeting with MNR was not all heavy and adversarial.  Councillor Turner threw in a bit of levity by announcing that he knew of six mating pairs of plovers at the edge of a little pond within five minutes of council chambers.  But after the laughter and snickering died down, the driftwood argument went on.

Ms. Jackson wants a “balanced approach”, a “compromise”.  What she doesn’t seem to get is that the plovers and their habitat are protected by law, and you don’t find a compromise with the law, and you don’t find “balance” by obeying the law sometimes and breaking it other times.

Ms. Jackson was elected to represent the residents of ward 3 in the TSBP policy making process.  Ms. Jackson was not elected to represent the residents of ward 3 regarding acceptability of the provincial endangered species act, or of the enforcement policy, and even if she did know the views of the people she has no more mandate than anyone else (except our MPP) to speak on behalf of the residents regarding acceptability of the act.

But what makes Ms. Jackson’s position so outrageous is that Ms. Jackson not only lacks the mandate to speak for the residents, but also completely misrepresents the views of the residents.

While Ms. Jackson claims, based on thirty e-mails from people that want the driftwood removed now, that the whole town is behind her, the fact is that her position is her personal view, and is not the view of the residents, or the ward, or the town.

Ms. Jackson is trying, without any legitimate mandate, to use her position as councillor to sell her personal views about the act and about MNR’s enforcement strategy as the position of the residents.  This, in my view, is outrageous and fraudulent.

 

Craig Gammie

Squabble Beach

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Craig comments on Wiarton Echo/ Owen Sound Sun Times article re Acquittal (8-10)

Rob Gowan, Owen Sound Sun Times, reported [www.wiartonecho.com/news/local-news/gammie-acquitted-of-assault-charge/wcm/3d9e8881-2c41-4464-9005-1806090ba01c  ] on my acquittal and on Justice Morneau’s judgement.   My comments on the Gowan article follow.

In her eight-page judgment, Morneau states that she cannot say that any witnesses were untruthful. (source: Rob Gowan, Echo October 4, 2018)

Out of context this is misleading.  Judge Morneau (morneau judgement October 4 2018) pointed out that Jackson failed to tell the truth at least sometimes.  Her words were “Ms. Jackson was perhaps more sure of herself, yet the evidence demonstrated that some of that assurance was misplaced.”  I read that as a euphemism for “the physical evidence demonstrates that Jackson lied at least sometimes”.  Justice Morneau even included transcript of Elizabeth Barefoot catching Jackson in the “stop that’s assault” lie.

The judgment goes on to state that “Mr. Gammie most likely did push Mr.Kirkland from behind.    Mr. Gammie clearly did not disagree at the time with Mr. Kirkland’s remarks about being pushed.” (Echo)

Justice Morneau I think was saying that I did not disagree at the time with Mr. Kirkland’s remarks about being pushed, therefore I most likely did push Mr. Kirkland from behind.

Justice Morneau was relying on a notion that my silence when accused by Kirkland is evidence of guilt.  But her conclusion does not follow from the premise, and the conclusion is preposterous.

My lawyer Elizabeth Barefoot capably demonstrated, with reference to several other cases, that the doctrine of acceptance by silence very clearly does not apply here.  For balance Mr. Gowan should have reported that too.

He [Kirkland] suffered no injuries.  (Echo)

But Jackson testified that Kirkland hurt his chin.  That should have been reported too.

Evidence presented in court included video from a surveillance camera. While it wasn’t in position to show what happened, it does show Jackson stepping back as if she had just seen something startling.  (Echo)

“As if she had just seen something startling” is Gowan conjecture, not fact.   I believe Jackson stepped back because Kirkland had the door almost closed and there was no need for her to continue to be in there pushing on Kirkland’s back and helping Kirkland to physically block me from getting my report.

I am told that reporter Rob Gowan was not in court when the video was played.  So how would he know what Jackson’s stepping back appeared to be?

During the trial, Kirkland testified that Gammie pushed him twice from behind quite heavily, slamming his face into the door or door frame. (Echo)

Kirkland testified to no such thing.

Contrary to Gowan’s account, Kirkland testified that he did not see who pushed him, and that he did not know who pushed him, and that it could have been Janice Jackson who pushed him.  Kirkland never testified that I hit or pushed him.  In court Kirkland always used the passive voice, never the active voice.  Instead of saying “Gammie pushed me” Kirkland testified “I was pushed”.  Instead of saying “Gammie slammed me from behind” Kirkland testified “I got slammed from behind”.  The evidence is compelling that I was never behind Kirkland.  If I had been behind Kirkland when he closed the door I would have been on the security camera.  But I was not. But Jackson was on the security video.  Right behind Kirkland.

Reporter Gowan was not present during Kirkland’s testimony. The story was rushed out without Gowan’s claims being checked.

There are no grounds for Justice Morneau to say: “Mr. Gammie most likely did push Mr. Kirkland from behind”.  The evidence would support a statement: “It is more likely than not that Gammie did not push Kirkland from behind”.

Kirkland, who was not in court on Thursday, said he was shocked by the acquittal. “I haven’t really had time to think about it too much, but I can’t believe it,” said Kirkland. “Why would I put myself through that if he didn’t do it?” (Echo October 4)

Yes Mr. Kirkland why would you make false allegations and put us all through that? Surely you knew from your past that you had little chance of getting away with your false allegation.

Kirkland took the witness stand in grubby shorts and sandals.  He made a joke on the stand.  He did not seem to care if he was seen as credible or not.  He did not seem to care if I was convicted or not.  At times it seemed that he did not want the judge to believe that I slammed him or hit him or pushed him.  I do not think Kirkland ever really expected that I would be convicted.   Under oath he declined to say that I hit or pushed him.  He was being careful not to perjure himself.  If I had been convicted and gone to jail instead of the acquittal Kirkland would have had trouble sleeping at night.   I believe he is pleased with the outcome.  Because that puts less of a burden on his guilty conscience.  But he has to pretend that he is disappointed.

Why does anyone make a false allegation? Not to right a wrong. People make false allegations for improper purposes and because they think they can get away with it. Kirkland’s purpose was to get me off council and away from town hall. He and Jackson achieved their sinister purpose. They got me off council with their false allegations.  Kirkland got away with his false accusations.  So far anyway.

“Why would I put myself through that rigmarole if it didn’t happen,” said Kirkland. “He even had me on his own tape that he recorded telling him not to do that to my back from behind again. (Echo October 4)

Kirkland testified that he did not know who pushed him and that it could have been Jackson.  But in an unsworn statement a year earlier Kirkland accused me of pushing him and hitting him.  He should try sticking to the truth.

“Why would I turn around if somebody didn’t slam me from behind, and tell them that?” (Echo October 4)

Note the passive voice again (“if somebody ….”).   In the heat of the moment he obviously made an assumption that I had pushed him.  But that was before he saw the video tape.  When he saw the video tape he realized that Jackson was the one behind him and that it was Jackson who pushed him.   By his own sworn admission he did not see who pushed him or slammed him and he did not know who pushed or slammed him.

“It was the Crown that charged him, not me,” said Kirkland, who said he went to police, asked if they thought it was a case, and they told him that Gammie couldn’t do to him what he was alleged to have done. (Echo)

But Kirkland was not truthful to the police.  If Kirkland had been as truthful to the police as he was in testifying that “I did not see who pushed me. I do not know who pushed me.  It could have been Janice” there would never have been a charge.

Kirkland said he plans to move on from the trial. (Echo)

If Kirkland has any semblance of decency he will take a long hard look at what he has done, and he will make amends before “moving on”. You are not absolved, Mr. Kirkland.

Jackson said the recording was edited, which Gammie admitted to. (Echo)

The entered audio file included everything from the second the “record” button was pressed to the second the “stop” button was pressed.  The recording was not edited.  The full unedited unaltered audio file was entered as evidence.  Judge Morneau insisted that the whole file be entered.  The audio file was not challenged by the crown.  Judge Morneau accepted it as evidence, saying (her paragraph 35) “I conclude that this recording is accurate and reliable”.  The claim that it was edited is just another Jackson lie.  No surprise there. (Is anything Jackson says true?)  I made short audio excerpts for convenience.  But they were not “edits”.

Contrary to Mr. Gowan I did not admit to editing the recording or any recording.  That I admitted to editing is a reporter Gowan lie.   It appears that Gowan has learned much from Jackson.

“A lot of the very damning statements that Mr. Gammie made were interestingly removed,” said Jackson. “That was unfortunate.”  (Echo October 4)

There were no statements removed, damning or otherwise.  This is another Jackson lie (no surprise), easily disproved (no surprise).  It is no wonder Judge Morneau said (at paragraph 30) “Ms. Jackson was perhaps more sure of herself, yet the evidence demonstrated the some of that assurance was misplaced”, and (at paragraph 42) ““The difficulty with Ms. Jackson’s evidence is that she was so clear that she did not say the phrase “I love it” and characterized that assertion as a lie.  That was not a lie and her confidence in her position causes me to be very cautious with the use of her evidence as her memory is not reliable on some details and there is a history between her and Mr. Gammie.”

The complete unaltered audio file caught Jackson in at least two lies.  The video file caught Jackson in the big lie.  That’s what “was unfortunate” (for Jackson).

Jackson said the evidence speaks for itself, including the video, audio and her and Kirkland’s testimony. (Echo)

What a stupid statement.  The evidence said Janice was right behind Kirkland at the time of the alleged push.  The evidence said that I was not behind Kirkland at the time of the alleged push. The evidence said I did not do what Jackson swore under oath that I did. The evidence did speak for itself, just not in the way Jackson that implied it did.

If Judge Morneau got it as wrong as Jackson implied, then the crown would be duty bound to appeal.  Don’t hold your breath Ms. Jackson.

Both Jackson and Kirkland expressed surprise that a town employee who witnessed the events wasn’t called to testify. (Echo)

The employee they are talking about is Hailey Mossley.  Ms. Mossley claimed in a report that “[Craig] shoved Jay from behind – hand to Jay’s shoulder”.  Jackson claimed that Mossley was an “eye-witness” to the events.  Defence lawyer Elizabeth Barefoot established from the video and a bit of geometry that Ms. Mossley could not have witnessed what she claimed she did.  The crown did not call Hailey Mossley because Elizabeth Barefoot’s cross-examination of Mossley’s testimony would have killed the already barely breathing crown case.

“There was a third eyewitness and the Crown chose not to call that witness,” said Jackson. “When I asked why he didn’t call the witness he said the case was as good as it could get.” (Echo)

The crown did not have to justify his decision to Jackson.  I doubt that he said what Jackson claims he said.   I expect that the crown lawyer told Jackson that Mossley’s testimony could not help and was likely to hurt his case.

Jackson is trying to suggest by innuendo that it’s the Crown lawyer’s fault that I didn’t get convicted, because he did not call Ms. Mossley.  Jackson’s suggestion is ridiculous.  Crown lawyer Glenn Brotherston did the best he could with what he had. What he had was three lying witnesses.  He was wise not to call Mossley.

“The thing that saddens me is the judge seems to be sending a message that this kind of behaviour in a municipal office is OK,” said Jackson, who had not yet read the judgment. “You can’t just slam somebody into a steel door and that is OK.”  (Echo)

How can Jackson possibly know what message Justice Morneau was sending if Jackson has not read Justice Morneau’s judgment?  Does she read minds?

Judge Morneau did not say or seem to say or imply anything of the kind.  Jackson’s statement is seriously offensive to Justice Morneau and to the whole justice system.

If the crown had proved that I intentionally slammed Kirkland into a steel door then Judge Morneau would have convicted me.  But the crown did not prove that.  The crown could not even come up with any reliable evidence of that.

Jackson seems to think that I should have been found guilty by allegation, like I and others have been found guilty by allegation so many times in Jackson’s infamous kangaroo courts.  News flash 1 for Jackson – innocent until proven guilty by a court of competent jurisdiction.  The only entered evidence that I slammed Kirkland was Jackson’s testimony.  And that was found to be unreliable.  News flash 2 for Jackson.  In Canada we still have the rule of law …. not the rule-of-Jackson.

The TSBP code of conduct for council members section 5.2 indicates: “no member will maliciously or falsely injure or impugn the professional or ethical reputation of any member of staff, the public or member of Council”.  Jackson breached the rule.

The code of conduct also indicates “as leaders of the community, [members of council] are held to a higher standard of behaviour”. The mayor as a public figure is held to that higher standard.   The thing that saddens me is that Mayor Janice Jackson seems to be sending a message to the young and the old of TSBP that it is OK to lie and cheat and deceive in order to get rid of your political adversaries.  It is not OK.  It is a breach of the code of conduct and it is wrong.  Nd under oath lying with intent to deceive is called perjury.

Vote wisely.

Craig

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