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The bylaw should be rescinded.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