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Civil rights at risk with new bylaw



It's frustrating when we have a public meeting about an important, new bylaw and it's evident from the discussion that no one else at the table actually read the thing. Councillor McNabb had no idea there even was one, and even had to get up in the middle of the meeting to go outside to look for a copy so he could follow along with my comments.

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Several times during my comments and questions, the deputy-mayor tried to stop me and tell me the meeting was about the staff's presentation on the bylaw, not the bylaw itself. No, deputy mayor, it's not about the presentation. Questions of clarification are for deputations only, not for public meetings. This public meeting was called about the "proposed municipal licencing (sic) bylaw" and not about the staff's selective presentation. How else can staff respond to questions and how else can a member of council express publicly his or her concerns? Sending staff emails about them is not being open or accountable.*

The
new consolidated licensing bylaw conflates several other bylaws, as well as adding some new sections. I have a lot of concerns about some of the provisions - which none of my fellow councillors voiced, apparently because they hadn't read it before the presentation. That worries me. I perceive some serious threats to civil rights in this bylaw.

First concern is that "nuisance" definition again. Or rather, as in our "nuisance" bylaw, the lack of a definition. We don't say what a nuisance is, but we let bylaw officers control and define it as they see fit.

The clerk noted that not only was it a subjective definition, but that our bylaw officers had the discretion to determine what a "nuisance" is. As I mentioned in
my post on the "nuisance" bylaw, leaving the definition to the discretion of the bylaw officer gives them more authority and responsibility than their job demands, and can easily be abused. It could impinge on civil liberties.

It's unfair and lazy of council to dump the responsibility of defining what we expect from them or our residents on the shoulders of staff. But council did just that and passed the nuisance bylaw. I suspect this one will pass with the same, uncritical ease.

But this one has a darker side. It has some very authoritarian clauses buried inside it. For example:

PART 2 – LICENCE COMMITTEE

2.1 Section 5 to 15 and 21 and 24 of the Statutory Powers Procedures Act shall apply to all hearings conducted by the Licence Committee.

2.2 A person who wishes to appeal the Licencing (sic) Issuer's decision to the Licence Committee shall file an application for a hearing and pay a fee in accordance to Fees and Service Charges By-law to be collected by the Town.

2.3 The Licence Committee will review the matter and shall modify, uphold or quash the decision of the Licencing (sic) Issuer or direct the licence to be issued, renewed or reinstated.

2.4 Decisions of the Licence Committee are final. *

Whoa. All decisions of an appointed committee are final? No appeal to the elected representatives? Excuse me, but council was elected to represent the people, not staff, not committees. Everyone should have the right to appeal a committee decision to council. But according to this bylaw, you won't be able to. The committee is given power, council is rendered impotent.

More concerning is that the structure of this committee hasn't been defined, so if we pass this bylaw first, council would be handing authority over to a group whose composition, members, responsibilities and duties are undefined. I have real concerns about giving power to a group we haven't even met let alone given a job description to. Especially when a little further we read this:

4.19 The Licence Committee may modify, uphold or quash an order issued by the Licencing (sic) Issuer.*

So the committee has powers to overturn staff decisions too, with no appeal. Yet as I pointed out last night, there is no reason provided in the bylaw as to why a committee can do so or the mechanics of doing so.

Who appoints the committee? Who will sit on it and how is that appointment made? What is the term of office? To whom does the committee report? How often does it sit? What staff person is the resource? Will there be a council rep? What are the criteria for membership? No one knows (at least no one on council). Does the committee meet in secret and decide to revoke a licence and no one can appeal?

The committee is being given authority above and beyond council and town staff, and doesn't have any rules to define those powers. That's Kafkaesque in its implications.

I can't accept that. That's bureaucracy dominating democracy, and a faceless bureaucracy at that.


But then the bylaw officers get also get extra-legal powers I really have even more serious concerns about:

PART 6 –INSPECTION – POWERS OF ENTRY
6.1 In order to assess and determine compliance with the provisions of this by-law, including the determination of an unlicenced (sic) business, an Officer may at any time of day or night enter the premises licenced (sic)under this by-law and is entitled to access, and may at any reasonable time inspect any Premises used for the business, and the equipment, Motor Vehicles, records, documents and other personal property used or kept for hire in the carrying of the business, and may remove documents or things that are relevant to the licenced business for the purpose of making copies or extracts. An Officer shall return such documents within twenty-four hours of removal.*

Wait a second. A bylaw officer can enter your place of business any time - which may well be your home - including the middle of the night, without a warrant, and remove all your records including confidential material that might contain personal data such as health records, SINs, credit card information, passwords, alarm codes, addresses, drivers' licences and more (see the note on auctioneers, below).

It might be the business owner's personal information, or his/her staff's information or even customers' private information. And the bylaw officer can take and keep the documents for 24 hours!

There isn't a single reference in the bylaw to respecting - let alone protecting - the confidentiality of those records. And where will they be kept? In town hall? Hardly a secure environment. How about in a bylaw vehicle? How about at home? Nothing in the bylaw suggests that can't happen.

There's nothing that says those records won't be shared, copied, or left lying around for anyone to read. In fact it does say that records WILL be copied, so the risk is high. What will happen to those copies and where will they end up? Who will get to see them and what will we do with the information?

You're worried about personal ID theft on the Internet? I'm worried about it here in my home town!

What if, I asked, the business owner lives outside town? Seems our bylaw officers are not being limited in their geographic range, either. As it reads, they can go anywhere in the province to conduct their midnight raids. I'm sure there would be legal backlash if they did so, but that's how it is worded.

Doesn't anyone else at the table have a concern that we're letting bylaw people do midnight raids on residents and taxpayers, letting them take private and confidential materials WITHOUT A SEARCH WARRANT? Not even the police have that authority. Yet no one else at the table said anything.

Sorry, that's way too totalitarian for my tastes. These are municipal bylaw officers, not CSIS or the KGB. I won't support that.

Under section 7, I read:

7.1 The Licencing (sic) Issuer may refuse to issue a Licence, refuse to renew a Licence or may revoke or suspend a Licence or impose terms and conditions on a Licence.*

No conditions are given for refusal, nor, apparently does the licensing issuer (town staff) have to say why a licence has been refused, revoked or suspended. Again it seems it is left to the subjective discretion of staff to decide and not even council has to be informed. And again I have serious problems about creating such open-ended legislation and the potential for abuse it brings.

We should clearly state why a licence can be revoked or refused and what the appeal process is. Laws should not be open to subjective interpretation or application. That's too whimsical for my tastes. Not to mention open to legal challenge and abuse.

If you're an auctioneer, pawnbroker or fireworks seller, you have to go through a criminal records check to get a licence. Why? No one could say.

Do we refuse licences if someone has been in jail? It doesn't say. Nor does it explain what we do with that information (nor does it say it will be kept confidential!). Are fireworks sales part of some nefarious criminal ring we have to monitor? Do we share this information with police services?

Don't we have a justice system that says once time has been served, you're forgiven and can make a new life? Apparently not auctioneers, pawnbrokers or fireworks sellers in Collingwood.

Auctioneers get a double whammy. They used to pay $100 a year for a licence. Now staff decided it should be $100 per auction! Yet no reason was given when I asked what justified the increase. Some of our local, professional auctioneers may do a dozen or more auctions a year. If so, we've just increased the cost to them by 1100%, maybe more! And they have to apply for a licence every time.

I wonder how George Pfifer will react to that news. We've just made his business a whole lot more expensive - and wrapped it in more red tape.

Under the bylaw, auctioneers have to keep records that could include a lot of personal, confidential information from and about their customers:

Written records shall be kept, including a detailed list of all the items being auctioned, the names and addresses of the owners of those items, the amount received for each item, and the names and addresses of the purchasers to be submitted to the licencing issue (sic) upon request.*

So who bought what, how much they paid, and where they live would all be recorded. This information could be taken away by the licensing issuer or bylaw officer and copied for unknown purposes, perhaps even kept for for others to view. The bylaw has no provisions to keep this information confidential or secure.

Does that make you feel secure, or does it suggest a reason to avoid future auctions in Collingwood if it's passed?

Pawnbrokers - alone of all the categories in this new bylaw - must provide the town security "in the amount of $2,000." Why do we need one? Why $2,000 and not $500, or $5,000? Will it be returned? how long do we keep it? Do we pay interest? Why do we need both a criminal check and a security deposit? No one knew.

Streetside food vendors have to locate themselves 300m from any other food vendors. Why that far? No one knew. Like most distances and measurements in the bylaw, it's an arbitrary number likely picked from another municipality's bylaw, then pasted into ours without any real local reference. Our town blocks are about 200m on the long side. Why not, I asked, make that the measure so there is only one per block, not one every block-and-a-half? No one knew.

Patio licences were included in the new bylaw, and the already beleaguered restaurant owners also got hit again last night. Not only do they have to move their patios against their wishes, but we've told them they have to be four feet narrower than expected! Patios can't extend to the property line as we said before (and not onto the neighbouring property as was also suggested), but now must end two feet from the property line on each side. So they're a lot smaller than we promised earlier.

Put a tree in front of the restaurant too and you've effectively killed the opportunity to make a patio.

If the restaurant owners want to have a table or two nestled beside the building - no more than two feet wide of course - it's allowed, but it and the chairs have to be secured - i.e. chained - to the building. Is that an acceptable way to treat a heritage building, one building and restaurant owner asked. No, it isn't. Not to mention the extra costs of the chains and securing devices.

And let's not forget to throw in the new one-time $200 fee for "footing installation" to secure those patio fences. We make the restaurateurs pay for having to put footings into the sidewalk to keep the fences where they didn't want them to be in the first place. Let's make patios smaller and really, really expensive so we discourage them entirely!

And while we're at it - we will allow downtown merchants to put up tents or displays on the sidewalk (curbside, not beside the building, of course), but only on Saturdays. Not Sundays, not holidays or long weekends. Just Saturdays. Why? No one could say.

Plus in order to get a licence for that tent,

The applicant shall submit a site plan, drawn to scale which shows the delineated area of the proposed sidewalk patio/café and proposed location and all other accessories in relation to the public sidewalk and to the associated business. The plan shall show (within 6 metres (19.7ft) of the business the location of utility poles, hydrants, parking metres, shelters, manholes, traffic signs, catch basins, awnings and any other physical or drainage feature of the street or beyond 6 metres (19.7 ft) any public utility that may be affected by the development.
And... Lighting/Electricity: Shall not be permitted.

Talk about bureaucratizing things! How many downtown merchants have the skills to create such a detailled drawing? And why do we need such detail when the staff person could walk out of his/her office a few hundred feet and look at the storefront to see if a tent will work there? Don't we have detailled drawings of the downtown a staff person could look at to see if a tent was appropriate? No, we have to make it more difficult, more awkward for the merchants.

No electricity? What about merchants who have things to display and sell that require power? We've allowed it in the past, why prohibit it now? Just seems to me to be another way to discourage downtown businesses from trying to be entrepreneurial.

Collingwood isn't closed for business, we're just wrapping it in red tape so tightly it can't breathe...

Last year I brought forward the idea of allowing buskers play downtown. Buskers are included in the new bylaw, but in such a restrictive, authoritarian manner it makes it unappealling. Even panhandlers have more freedom than buskers.

First buskers will only be allowed to perform at three locations downtown. They can't roam the street, can't play at an outdoor patio (a moot point since we likely won't have any at this point - but in most places I've been wandering musicians are integral parts of the cultural environment), they can't solicit funds, can't sell their CDs, can't use amplification, and must even "refrain from requesting the crowd to cheer or yell." I'm surprised they are allowed to open their mouths or move their arms.

Talk about a Soviet-style approach to the arts. Let's strip the fun right out if it. No explanation was given why these restriction were required. Buskers are supposed to enliven and animate the downtown. Instead, we're freezing them in concrete and turning them into boring statues.

Buskers can't perform during other special events, and are restricted to June 1-Sept 20, so they can't perform on Victoria Day or Thanksgiving weekends. They can't perform in the Farmers' Market, either. Again, no reasons why.

And buskers will have to audition to get a licence. Who will judge them? We don't know. Councillor Jeffrey said last night she and her Culture Committee had already decided that, and it was in the committee's minutes. But no matter how she tries to control things, neither she nor her committee has the authority to set up other committees. Only council has that authority, no matter what her ambitions are. Minutes are only received for information and any recommendation has to be presented separately for debate and a vote. That hasn't happened yet.**

We have not been presented with any suggestion as to how this audition committee will work, or who will populate it. Would there be musicians on it, I asked, because I don't see how non-musicians can peer review a musician performer. But can we pass a licensing bylaw without simultaneously passing a bylaw to create that committee that provides the licence? What are the criteria we want the committee to use to decide whether a busker gets a licence? And can a performer appeal to council of the committee says no? We need all of those questions answered first, before the bylaw gets passed.

I raised a lot of other concerns about the bylaw, including numerous small, but to me important, points. I am concerned that the public didn't read the bylaw to understand fully the implications therein (after all, it seems council didn't, so can we expect the public to do so?).

I worry the public will only get its impression from the staff presentation, which covered a few salient points, but did not give explanation for a lot of the proposed changes or additions. For example, the presentation did not mention the extra-legal powers being given to to staff or the extraordinary powers of the yet-to-be defined but powerful licensing committee, nor anything about the confidentiality of information that will be copied or taken from a licence holder.

I can't support this bylaw as proposed. It infringes on too many civil liberties. It has serious security and confidentiality issues. It gives too much power to staff. It is too restrictive and authoritarian in many, many sections. It's a bad bylaw that needs significant revisions before it gets presented again. It's hostile to a lot of businesses and entrepreneurs, especially downtown.

We can - and should - do better, and do it in a way that more business-friendly.

~~~~~
* Yes, it really says "licencing" in the minutes. There is a general confusion throughout the bylaw between the noun licence and the verb license. In the US, license is used for both noun and verb, but in the Commonwealth - of which we are still part, the English distinction is still used. To wit, it should be a licence is granted, or an act is licensed and we are licensing the acts. Fortunately it's just a draft bylaw and this error can be corrected before it's presented on May 31. Perhaps by then staff will also correct the egregiously bad capitalization that is scattered throughout the bylaw.
** Last night Councillor Jeffrey tried to take ownership of the busking idea. The proposal had to go through both the BIA and the Arts and Culture Advisory Committee - on which she is the council rep for both. But she didn't initiate the idea, I did when I asked for a staff report on busking.





It really was a sad show at council last night. The draft proposal of the by-law was on-line and I and many others in the audience had obviously read it. It was painfully obvious that you were one of the few at the table who were prepared for the meeting. I applaud you for doing your homework. It seems Ms Mayor Wannabe Kathy has been pounding the table for months and months to get those patios moved but had no idea they were to be 4 feet narrower. Pitiful!!!!! Espresso Post and the tea shop would have laughingly tiny patios. By the way, Kathy was the one signaling DM to cut you off. She had little to add to the discussion because she wasn't prepared. I get that people are busy with jobs and family but if you don't want to look foolish at the table then come prepared. Seems to me that when one stands for office one is saying,"I have the time and the will to do a good job".
My favorite bit was the discussion about A&W... nevermind that we've allowed all these other businesses to build in the western node without following the design 'guidelines', we're putting our foot down now!
BTW, shouldn't the cat be in an SS uniform? Or would that be in grossly bad taste...
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Ian Chadwick
May 19 2010 05:51 AM
To be fair, Monday was only the presentation and public meeting - it wasn't the actual passage of the bylaw. That will come forward on May 31. But unless the revised versions comes forward with significant changes in it, I won't be supporting it.
Fair?? To whom?? Was council fair to the restaurant owners??
I like all the councilors as people and I have always admired people who want to serve their community at the council table. However, sometimes this term I have had to scratch my head and wonder WTF!! Case in point, the patios. Big Ed gave a well illustrated presentation about how wonderful curbside patios would be because they would be bigger and better. Kathy promoted the curbside patios as being bigger and better. Considering that the restauateurs had not asked for bigger patios; the initial plans show curbside patios 4 feet narrower; the new bylaw requires the patios to be 4 feet narrower...was bigger and better merely a ruse to get the whole thing passed? Was Kathy really surprised at the public meeting about the width restrictions? Had she been promoting an idea she didn't understand? So many questions. The margins in the restaurant business are very very slim yet they must pay pay pay for something neither they nor the public want. FAIR?? What's fair about that??
By the way, in case you haven't noticed, I'm going to beat the drums ad nauseam on the patio issue and the Admiral Collingwood Place hole in the ground until October 25. Then I will go away!
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Ian Chadwick
May 20 2010 09:06 AM

Fair?? To whom??


Fair to staff. A draft bylaw is not an official law. Until it gets passed, it's only a talking point. However, I really believe that council should have had the opportunity to read it and get clarification (as well as point out the spelling mistakes) before it became a public document. Council only saw this at the same time the link was posted online for public perusal. I can't guarantee that more councillors would read it than read it for last Monday's presentation, but we should have the opportunity to do so.
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Ian Chadwick
May 20 2010 01:18 PM
I've been researching search and seizure laws in Canada the last couple of days. And what I've found supports my claim that portions of this law violate our Charter of Rights and Freedoms. The Charter itself merely says

Search or seizure
8. Everyone has the right to be secure against unreasonable search or seizure.

However vague, this section has been the subject of many legal challenges and several key Supreme Court decisions.

The International Centre for Criminal Law Reform and Criminal Justice Policy writes:

The lawfulness of a search and seizure is not based on the success of the search. The fact that police found what they were looking for does not make a search legal.
<snip>
The Court ruled that fair investigative practices require preauthorization of searches by a neutral, independent person based on evidence under oath that an offence has been committed and that evidence of that offence is likely to be found at the place to be searched.

Not all searches are protected by the Charter. It only protects individuals against unreasonable search and seizure. One of the concepts our courts have developed to decide when searches are permitted and when they are prohibited is the concept of reasonable expectation of privacy.

Canadians have a high expectation of privacy in their home, in their personal information such as medical records, and in their DNA to list a few areas. Searches touching on areas such as these require high standards of proof and heavy burdens on investigators before they will be proper. Other searches, such as looking at items left in plain view by a suspect, have low standards. Canadians do not expect privacy in relation to things left in plain view.

And on the National Association of Criminal Defence Lawyers web site, it says,

Search and seizure is one area where Canada has been clearly influenced by American constitutional principles. Our Charter,1 proclaimed in 1982, is in its infancy compared to the Bill of Rights. Thus, we regularly turn to American cases to assess how U.S. courts approach searches at the border, searches of people in cars, body cavity searches, and any number of the many and varied fact situations which give rise to intrusion into privacy interests.

Section 8 of the Canadian Charter says everyone has the right to be secure against unreasonable search or seizure. Although it is worded quite differently and lacks the express warrant requirement of the Fourth Amendment, our Supreme Court has interpreted Section 8 in a manner consistent with the American approach set out in Katz v. United States:2 A warrantless search is presumed to be an unreasonable search.

It goes on to report the Supreme Court's decision, the important keystones in search and seizure operations:

In striking down the legislation which permitted the authorization in Southam Inc.'s case, the Court laid down guidelines which have become the cornerstone of search law in Canada:

  • Where it is feasible, a search must be approved by prior authorization. Although it may not always be reasonable to insist on prior authorization, there will be a presumption that a warrantless search is unreasonable.
  • The person authorizing the search must act in a judicial manner. Although the person need not be a judge, he or she must be in a position to assess in a neutral and impartial fashion whether a search is appropriate on the evidence available.
  • The standard for issuance of the warrant is similar to American "probable cause": There must be reasonable and probable grounds established upon oath to believe that an offence has been committed, and that evidence of that offense is to be found at the place to be searched.

Prior authorization by someone in the judiciary, and only for probable cause. Those are important concepts our bylaw ignores.

And then the lawyers add this:

Even a seizure of information by the police in a criminal context, where there is a reasonable expectation of privacy, may require that the police obtain a warrant.

Don't our citizens also benefit from that 'reasonable expectation' of privacy?

An East-Coast group, APMlawyers.com, writes:

In other words, Canadian law protects everyone from being subjected to unreasonable searches by the police, security guards or other persons in a position of authority.

The same law also protects us against having our personal property seized, or taken from us, without reasonable grounds.

And from the Government of Canada itself, I read that not only individuals but corporations are protected:

The courts have held that a corporation is included in the word "everyone," which delineates who should receive the protection of this section. It has also been noted that because the word "seizure" in this section is associated with the word "search," the protection afforded does not extend to the taking of real property by expropriation.

As well, in Thomson Newspapers Ltd., the Supreme Court of Canada said that the "essence of a seizure ... is the taking of a thing from a person by a public authority without that person's consent." Only something inanimate is subject to "seizure" because, as the Court said in this case, "the word 'seizure' ... should be restricted to tangible things." Thus, the "seizure" of a person's thoughts by ordering that person to testify does not amount to "seizure" under section 8.

And:

When considering the application of the Charter, it is important to recognize that it is a purposive document; that is, "its purpose is to guarantee and to protect within the limits of reason, the enjoyment of the rights and freedoms it enshrines. It is intended to constrain governmental action inconsistent with those rights and freedoms; it is not in itself an authorization for governmental action."

Alberta Justice produced a teacher's kit on this section of the Charter, which says in part:

What is the main purpose of Section 8?
Legal protections against unreasonable search and seizure are fundamentally important to a free and
democratic society. The purpose of Section 8, according to the Supreme Court of Canada, is to protect a
reasonable expectation of privacy.
What is reasonable?
Reasonable in context of the Charter means that those who act on behalf of a governmental body must carry out their duties in a fair and reasonable manner. Officials such as police officers cannot enter private property or take things from others unless they can show that they have a good reason. If an issue comes to court, the court must assess the validity of a search from three different perspectives:
• was it authorized by law;
• is that law reasonable; and
• was the search was carried out in a reasonable manner?

Charter Challenges: Search and Seizure
What is a search warrant and when do officials need a warrant?

For generations judicial officers have guarded privacy rights through the process of "judicial preauthorization" (known as getting a "warrant"). In most cases, officials are allowed to enter private property to look for evidence or to seize things only if they have been given a search warrant by a judge. On the other hand, government inspectors may enter business premises without a warrant to check whether government regulations are being observed.

What is a search?

A "search" is much wider than police rummaging around looking for evidence. A search is any invasion of a person's reasonable expectation of privacy, in whatever form, by the state. For example, collecting discarded facial tissues in a jail, intercepting private communication (even if one party consents), aerial
surveillance, and a demand for information or documents for a tax audit may all be "searches".

What is seizure?
Seizure is when something is taken from a person by a public authority without the person's consent; however, there must have first been a reasonable expectation of privacy in the materials taken.


So how can Collingwood authorize its bylaw officers to perform a search and seizure without a warrant? It can't, legally. It would violate our Charter. So why is it even written into the bylaw when it simply wouldn't withstand a legal challenge?

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