THE BLOG

Should By-Law Officers Have All That Power?

08/14/2012 07:51 EDT | Updated 10/14/2012 05:12 EDT
Alamy

In R. v. Feeney, a 1997 Supreme Court decision, the Court interpreted the Charter's section 8 provision against "unreasonable search and seizure" as mandating that a police officer must receive a warrant before entering a dwelling.

At issue in Feeney was a murder by crowbar. In 1991, 85-year-old Frank Boyle was found dead in British Columbia, having suffered severe head injuries from a crowbar-wielding murderer. Following tips from local residents, the police went to Michael Feeney's trailer, knocked on his door, yelled "police" and then, when nary a peep came from the trailer, busted in.

They found Feeney in bed, woke him, took him outside, and noticed that Feeney smoked the same brand of cigarettes as were left at the crime scene, and the fact that his clothes were covered in blood. Feeney later confessed while in custody, but this did not matter since, according to the Court, the police erred in entering Feeney's trailer without a warrant.

Murder is a serious crime. The need for a warrant makes serious police work more difficult. But the Charter is a document that protects individual rights and freedoms, and it protects all of us from unreasonable search and seizures, including especially those of us suspected of a serious crime.

By-law violations, by contrast, are not serious offenses. You would think that by-law officers would have to meet a higher standard than police officers before being able to come onto our property.

You would be wrong.

Many municipalities in Ontario permit what can only be described as unreasonable search and seizures through Power of Entry (sometimes called Right of Entry) provisions. These provisions permit municipal law enforcement to warrantlessly waltz onto your land on the mere suspicion of some persnickety by-law or zoning ordinance.

Section 436(1) of the Ontario Municipal Act allows municipalities to pass Power of Entry by-laws. This section of the Act empowers municipalities to pass by-laws "providing that the municipality may enter on land at any reasonable time" for purposes of inspection, including to ensure that by-laws are upheld.

No notice to the landowner is required, no warrant needed. Apart from a requirement that the officer present "proper identification" upon request, there are no hoops to jump through whatsoever.

By-law might argue that it's because by-law offenses are minor -- typically resulting in nothing more than a fine -- that power of entry is warranted. But this reasoning is precisely backward.

Suppose a librarian were to see an overdue library book in your car, and he sees that you've left your door unlocked. Would anyone argue that he should have the power to enter your car and take the book, leaving an overdue book fine on your front seat? Would you accept his argument that an overdue library book is just a minor offense, so his power to enter an unlocked car is, really, no big deal?

Of course we wouldn't.

The reason why we wouldn't is because overriding something of value, like our expectation of privacy and control over our property, requires there to be something at stake that is at least of comparable value.

The fact that by-law offenses are relatively minor is a weighty reason to repeal section 436(1) of the Municipal Act. So is the fact that we have to trust that by-law officers are acting in good faith and on the basis of some ordinary common sense a reason to repeal the extraordinary and unreasonable power of the warrantless waltz.

By-law is required to investigate complaints, which remain anonymous. To my understanding, there is nothing preventing someone from Alberta's Fort McMurray from calling in a by-law complaint against someone he has a beef with in Ontario's Township of Tay.

"I think there's a dog loose in Sally's backyard right now," he might say. "Go sic an officer on her."

Supposing the by-law officer also has a beef with the Tay resident, or is curious about what her backyard looks like, he can go and disrupt her day with a spurious investigation.

Actually, in the Township of Tay, he might disrupt her in the middle of the night. In violation of the Municipal Act, which clearly states that municipalities can only empower officers to do the warrantless waltz "at any reasonable time," the sage councillors of Tay decided to drop the "reasonable" part. By-Law No. 2012-11, "[b]eing a By-law to regulate or prohibit animals being at large or trespassing and to provide impounding in the Township of Tay," comes with the following section 4 "Right of Entry" provision:

4.1 An Officer or person designated by Council shall be permitted to enter onto land at any time for the purpose of enforcing this by-law and any orders or conditions imposed under the authority of this by-law.

If the councillors of Tay Township don't care enough to be in keeping with the Municipal Act, why would their by-law officers? Indeed, given the absurd length of the Act, and the reams of by-laws passed by local councils, residents have little choice but to take it on faith that their local council and the officers in their employ are acting in good faith.

Toronto's city council election saw 53 per cent of those eligible to vote actually cast a ballot. Smaller municipalities draw much, much less. Nearby Oshawa, for example, produced this report explaining that voter turnout has dropped by 50 per cent over the past 60 years. In 2006, 25.1 per cent of eligible voters bothered to cast a ballot according to the same report. Tay Township saw a 26 per cent voter turnout in the 2006 election.

With low levels of voter participation, councils can be sure that very few of their residents are paying any attention. With very few people looking over their shoulder, they have little incentive to act conscientiously, and can rest assured that if they become overzealous, there will be little in the way of electoral consequences.

The Office of the Independent Police Review Director will investigate complaints against police officers in Ontario. If a police officer steps out of bounds, you have recourse in the form of an arms-length agency set up to incentivize good faith efforts on the part of police, and to follow up on cases where specific officers fail to live up to that requirement.

There is no such body responsible for ensuring the good faith efforts of by-law officers. Municipalities are eager to have neighbours make complaints against each other, because fines and penalties are cash in their pocket. But they are not at all eager to have residents lodge complaints against one of their by-law officers. There is no confidential complaint form against by-law officers who are nothing more than by-law bullies.

I speak here from personal experience. In 2010, my mom and dad had to deal with bullies from our municipality. It is foolish to trust the good intentions of council and their officers when there is little to incentivize it, and almost no negative consequences for acting in bad faith.

As for the common sense of the officers, just read the paper at the beginning of every summer. They shut down hot dog and lemonade stands run by kids. In Drummondville, Quebec, they are trying to shut down a gorgeous front-yard garden.

In Courtice, by-law decided that Hostas and tiger lillies, planted under a municipal tree, were blocking the roadway. Debbie Dell, the woman who planted them, has to now rip them out or have the city do it for her, charging her for the labour. This might sound pretty reasonable, until you realize that there is a municipal tree there already blocking the road. Also, the offending plants were planted 24 years ago. Wikipedia is silent on the growth spurt of Hostas in year 24 of their maturation.

With no one looking over their shoulders, neither voters nor an official arms-length body, and without confidential complaint forms against by-law bullies, why would we give strangers with municipal business cards the extraordinary and unreasonable power to walk onto our private property without our permission or a warrant?

Section 436(1) of the Municipal Act should be repealed. It is contrary to common sense, and it violates the spirit, if not the letter, of the Charter of Rights and Freedoms. It is time to take away the power of strangers to do the warrantless waltz on your property.