corp-15-08 - ccla and trespass by-law -...

Public Report

To: Corporate Services Committee

From: David J. Potts, City Solicitor

Report Number: CORP-15-08

Date of Report: January 26, 2015

Date of Meeting: February 2, 2015

Subject: Canadian Civil Liberties Association Correspondence and Delegation regarding Trespass By-law 98-2013

File: D 2110 0657 2014

1.0 Purpose

This report responds to Corporate Services Committee’s direction to report on the issues contained in Canadian Civil Liberties Association (C.C.L.A.) correspondence CORP-13-183 and CORP-13-195, and the subsequent delegation made by C.C.L.A. Director Cara Zwibel before the Corporate Services Committee on December 2, 2013, regarding City of Oshawa Trespass By-law 98-2013.

This report is drafted as an open session report. If necessary, questions respecting Council’s legal rights and responsibilities can be addressed in closed session.

2.0 Recommendation

That Corporate Services Committee recommend to City Council:

That Council pass a by-law to amend Trespass By-law 98-2013 in the form of amending by-law comprising Attachment 6 to report CORP-15-08.

3.0 Executive Summary

The City’s Trespass By-law 98-2013 established a system for the exercise of powers under the Trespass to Property Act including the administration of trespass notices, rights of appeal and other matters. Canadian Civil Liberties Association (“C.C.L.A.”) has questioned whether the issuance of a trespass notice would interfere with a citizen’s right to express herself by preventing participation in meetings of Council or its Standing Committees. This report recommends an amendment to the Trespass By-law to establish an exemption that would permit a person to attend a Committee or Council meeting notwithstanding that the person’s attendance would otherwise be prevented by a trespass

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Report to Corporate Services Committee Item: CORP-15-08 Meeting Date: February 2, 2015 Page 2

notice. This report also addresses other issues related to the Trespass By-law mentioned in C.C.L.A.’s correspondence and deputation.

4.0 Input From Other Sources

C.C.L.A. was invited to attend the February 2, 2015 Corporate Services Committee meeting.

The following were consulted in the preparation of this report:

• Corporate Leadership Team • Director, Municipal Law Enforcement and Licensing Services • Director, Recreation and Culture Services • City Clerk

5.0 Analysis

5.1 Background

Following are attachments to this report:

• 1 – Report CORP-13-86-CM, Administration of Notices and Other Matters under the Trespass to Property Act, dated June 7, 2013;

• 2 – Report CORP-13-154-CM Administration of Notices and Other Matters under the Trespass to Property Act (Report 2), dated September 24, 2013;

• 3 – Trespass By-law 98-2013 passed October 15, 2013 (“Trespass By-law”); • 4 – C.C.L.A. Correspondence CORP-13-183 dated November 4, 2013; • 5 – C.C.L.A. Correspondence CORP-13-195 dated November 27, 2013; and • 6 – Recommended form of by-law to amend Trespass By-law 98-2013

The Ontario Trespass to Property Act permits owners of land to prohibit entry onto land or into structures generally by giving notice to that effect ("trespass notices"). Trespass notices are infrequently issued for the protection of persons and City property. Until October 15, 2013, Delegation By-law 29-2009 delegated to the City Manager and to each Commissioner the authority to issue trespass notices. There were no restrictions on the delegation.

On June 20, 2013, Corporate Services Committee considered report CORP-13-86-CM (Attachment 1) which proposed to repeal the trespass notice delegation under the Delegation By-law and to replace it with a system that more prescriptively administered rights and obligations under the Trespass to Property Act including providing rights of appeal against trespass notices. The Committee tabled the report to its September 12, 2013 meeting. On September 12, 2013, Corporate Services Committee referred the report to staff to "consider concerns regarding the number of people defined as authorized to issue orders and the term of the initial trespass order and report back to Committee".

On October 3, 2013, Corporate Services Committee reviewed Report CORP-13-154-CM (Attachment 2) which responded to the Committee’s referral by proposing to further scope

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the list of "Authorized Persons" and by simplifying the list of "Senior Staff Persons". The Committee adopted the report’s recommendation to pass a by-law to administer notices and other matters under the Trespass to Property Act in the revised form of by-law attached to the report. On October 15, 2013, Council adopted the Committee’s recommendation and passed Trespass By-law 98-2013.

On November 18, 2013, Corporate Services Committee reviewed correspondence dated November 3, 2013 from C.C.L.A. (Attachment 4 - “C.C.L.A. Correspondence”) which had been referred to the Committee by Council. The C.C.L.A. Correspondence expressed concerns respecting the Trespass By-law and with the use of “physical force […] to remove local residents” from the September 3, 2013 Council meeting. A motion was made to contact C.C.L.A. to make a delegation to Council regarding the C.C.L.A. Correspondence and “the rights of citizens as they pertain to municipal protocol”. That motion was referred to another motion, which carried, referring the C.C.L.A. Correspondence to Legal Services for a report on the issues and future options.

On December 2, 2013, Corporate Services Committee reviewed correspondence dated November 27, 2013 from C.C.L.A. (Attachment 5) which broadened the C.C.L.A.’s concerns to include more generally “the manner in which Council meetings are being conducted and [individuals’] ability to meaningfully participate in these meetings”. The Committee heard the deputation of Cara Zwibel of C.C.L.A.. The following motion carried:

1. “That Correspondence CORP-13-195 dated November 27, 2013 from the Canadian Civil Liberties Association concerning the ability of citizens to participate in Council meetings be referred to Legal Services for consolidation with the previous correspondence and that Cara Zwibel be invited to the meeting when the report comes back; and further,

2. “That the issue of public participation be referred to Councillor Neal, Councilor Diamond and the City Clerk to bring a motion back to the Corporate Services Committee outlining the proposed terms of reference of a Committee to consider the issues related to improved public participation in Council and Committee meetings.”

On February 14, 2014, a “Public Participation Committee” (“PPC”) was struck to review Council’s Procedural By-law related to public participation in the Council and Standing Committee meeting process. On September 8, 2014, Corporate Services Committee considered Report CORP-14-98 which reported PPC’s recommendations. Corporate Services Committee referred the report to staff to prepare a summary document to outline the proposed changes to Council’s Procedural By-law. On January 12, 2015, Corporate Services Committee considered report CORP-15-02, “Public Participation Committee Recommendations”. A motion carried to recommend to Council a series of amendments to the Council Procedural By-law, to direct staff to develop policy wording for consideration at the Committee’s February 2, 2015 meeting and to table to the February 2, 2015 Committee meeting other issues related to report CORP-15-02.

This report responds to that part of the Corporate Services Committee’s December 2, 2013 direction to report on the Trespass By-law issues outlined in the C.C.L.A. Correspondence. The C.C.L.A.’s primary concern was that the Trespass By-law may have a “chilling effect” on citizens’ freedom of expression as protected by the Canadian Charter of Rights and

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Freedoms (“the Charter”) and citizens’ ability to participate in local government. The C.C.L.A. Correspondence also outlined C.C.L.A.’s other concerns respecting the Trespass By-law including

1. the number of individuals authorized to issue trespass notices; 2. the purported removal of the right of judicial review; 3. “problematic” appeal provisions, and; 4. “asymmetry” in the various methods of serving documents.

These issues are addressed below.

5.2 Freedom of Expression and Citizens’ Ability to Participate in Local Government

5.2.1 Municipal Powers Generally

Pursuant to its broad grant of powers, Council has the inherent authority to pass by-laws controlling its own processes with respect to the functioning of Council and Committee meetings as a necessary offshoot of its requirements to hold such meetings under the Municipal Act, 2001. Subsection 241(2) of the Municipal Act, 2001 allows the head of council or any other presiding officer to expel any person for “improper conduct” at a meeting. The City as an owner/occupier has the power to issue trespass notices pursuant to section 3 of the Trespass to Property Act. Council has broad powers to delegate its powers. As noted, the Trespass By-law prescriptively delegates Council’s authority under the Trespass to Property Act. Council has also established rights of appeal against trespass notices issued pursuant to the delegated authority under the Trespass By-law.

Courts must take a broad and purposive approach to the construction and interpretation of municipal powers and in order to quash a by-law there must be a “clear demonstration” that the by-law was beyond the municipality’s powers (see: Enbridge Gas Distribution Inc. v Toronto (City), 2012 ONSC 3485 (CanLII), paras. 8-10 and 33).

5.2.2 Charter Section 2 Freedoms

Council has chosen to pass the Trespass By-law to delegate the administration of notices and other matters under the Trespass to Property Act and to establish appeal rights (which are not contemplated by that Act). Municipal By-laws are presumptively valid. However, if the Trespass By-law is inconsistent with the Charter it will be found to be invalid as by-laws promulgated by a municipality pursuant to the Municipal Act, 2001 must comply with the Charter (see: Freitag v Penetanguishene (Town) (1999), 47 O.R. (3d) 301 (Ont. C.A.)).

The issues raised by the C.C.L.A. are based upon hypothetical scenarios. For instance, while a significant portion of the December 2, 2013, delegation was devoted to the Council meeting of September 3, 2013, there was no trespass notice then in effect that would have prevented any individual’s attendance at that Council meeting. The Supreme Court has repeatedly stated that Charter decisions should not be made in a factual vacuum as the contents of the rights arise out of the context (see: MacKay v. Manitoba, 1989 CanLII 26 (SCC) at pp. 361-362 and R. v. Edwards Books and Art Ltd., 1986 CanLII 12 (SCC) at p. 762).

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The freedoms protected by section 2 of the Charter have been given a broad interpretation by the Supreme Court. “[A]ll activities conveying or attempting to convey meaning” have been found to be expression protected under section 2(b) (see: Irwin Toy Ltd. v Quebec (Attorney General), [1989] 1 S.C.R. 927). Therefore, almost all expressive acts or words meet the first part of the two-step analysis the Court has put into place to be protected under the Charter (one of the only exceptions being violent forms of expression). This includes the right to express oneself at a meeting of Council or its Committees.

The court must first determine whether the activity falls within the freedom of expression protection, then determine whether the purpose or effect of the impugned government action is to restrict that freedom (see: Ross v New Brunswick School District No. 15, [1996] 1 S.C.R. 825). This analysis may depend, in part, on the nature of the space in which the expression takes place. The courts are willing to give more latitude to individuals occupying a public space such as a sidewalk to air their views as opposed to being on private property such as that belonging to an employer.

5.2.3 Charter Section 1

If an infringement of a Charter right is made out under the substantive section, the analysis then turns to section 1 of the Charter, where the impugned act or law may be proven to be reasonably and demonstrably justifiable by the government authority if it satisfies the court that: 1) the objective of the provision addresses a pressing and substantial concern, and 2) the provision is proportional to the objective. The second part of the section 1 test has three components: (1) the measures adopted must be rationally connected to the objective, (2) the measures chosen must constitute a minimal impairment on the right, and (3) there is proportionality between the effects and the objectives [the Oakes test] (see: R v Oakes, [1986] 1 SCR 103).

In the past, many municipal freedom of expression cases dealt with by-laws limiting or prohibiting signage. More recently, these cases have dealt with individuals involved in the “Occupy movement” who have set up protests or camps on public property such as parks. The most thoroughly argued of these cases, with the C.C.L.A. acting as an intervenor, was Batty v City of Toronto, 2011 ONSC 6862 (CanLII), which found that while the protestors’ rights under the Charter had been infringed by trespass notices they received for occupying a city-owned park, the limitation on their section 2(b) freedom was demonstrably justified under section 1. Of note, the City in Batty was relying not just on the Act but also upon the City’s Parks By-law, which the judge found was not impermissibly vague and clearly identified what types of conduct were permissible, and which the protestors were found to have contravened. The City of Oshawa has an equivalent Parks By-law to regulate public behaviour in its parks. As well, Council has enacted a Procedural By-law to govern its meetings. In Batty, the court found that the regulation of the use of public parks was a pressing and substantial objective and the measures chosen to achieve that objective were rationally connected to it. The restrictions the City sought to enforce by way of the trespass notice “were reasonable, tailored, minimal impairments on the expressive and associational rights of the Protesters” as well as a “reasonable balancing of the rights of all who wished to use the park”. Finally, the court in Batty found proportionality between the deleterious and salutary effects of the issued trespass notices.

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Therefore, any curtailing of an individual’s right to free speech or peaceful assembly will likely be found to infringe the broad Charter protections under section 2, causing the focus to shift to whether the municipality’s objective was to address a pressing and substantial concern (e.g. the safe and orderly conduct of Council meetings), minimal impairment of rights, and the proportionality of the measures to the objective.

The focus in these circumstances would likely be on the minimal impairment and proportionality parts of the Oakes test. While issuing a trespass notice in itself may be minimal impairment if limited in location and date, it may not be found to be minimally impairing if it extends over a swath of City-owned properties, does not make accommodation for legitimate business between the City and the person in receipt of the notice (including political participation), and can be extended for lengthy periods of time without an avenue for challenge.

The suggestion in the C.C.L.A. Correspondence that trespass notices should only be issued where there is a “serious and credible threat to safety” imports a criminal or near-criminal standard into the process. If only threats to safety resulted in trespass notices, then the more efficient mechanism might simply be to call the police, which is always an option for serious safety threats. Short of a potential criminal act or serious threat to safety, trespass notices can still play a role in the orderly functioning of the City for situations that do not rise to this level. The enactment of the Trespass By-law was an attempt by the City’s Council to provide guidance and consistency for those situations that involve disruption to such functions without having to call the police every time. Council went beyond the requirements of the Trespass to Property Act and established rights of appeal against trespass notices.

The hypothetical concern raised by the C.C.L.A. is that the issuance of a trespass notice will prevent an individual from participating politically by prohibiting her or him from attending a Council or Committee meeting. This report responds to that hypothetical concern by proposing an amendment to the Trespass By-law to establish an exception for an individual served with a trespass notice so that the individual could attend the meeting. Attachment 6 is the form of recommended amending by-law. The proposed amendment dovetails with the authority in subsection 241(2) of the Municipal Act, 2001, for the Mayor or Chair to address improper conduct at a Council or Committee meeting.

5.3 Individuals Authorized to Administer By-law

The C.C.L.A. Correspondence expressed concern that too many individuals were authorized to administer the Trespass By-law.

The Trespass By-law (Attachment 3) delegates authority to “Authorized Persons” and “Senior Staff Persons” to administer its provisions.

“Authorized Persons” are grouped into four categories. The first category consists of security guards employed with or contracted to the City. These individuals would be the ‘first responders’ in many circumstances and, as such, are appropriately named as Authorized Persons. The second category consists of supervisors or higher in the Recreation Services Branch. These individuals need to be able to address inappropriate behaviour related to the use of the City’s recreational facilities. The third category is the

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police. The fourth category is “Senior Staff Persons”. All Authorized Persons are empowered to issue a three day trespass notice to address immediate and short term issues.

Senior Staff Persons are staff with the administrative rank of Director or higher. They are authorized to issue and to extend trespass notices for up to six months, subject to rights of appeal established under the Trespass By-law.

As noted in section 5.1 of this report, Corporate Services Committee specifically addressed the scope of “Authorized Persons” when it referred Report CORP-13-86-CM (Attachment 1) back to staff. On October 3, 2013, Corporate Services Committee reviewed Report CORP-13-154-CM (Attachment 2) which responded to the Committee’s referral by proposing to revise the originally recommended form of Trespass By-law to further scope the list of "Authorized Persons". As noted, the Committee adopted the report’s recommendation to pass a revised form of by-law. On October 15, 2013, Council adopted the Committee’s recommendation and passed the revised form of Trespass By-law.

It is the writers’ view that Council has acted within its jurisdiction when it passed the Trespass By-law. Corporate Services Committee specifically considered the scope of Authorized Persons before making its recommendation to Council.

No amendment is recommended in relation to this issue.

5.4 “Privative” Clause

The C.C.L.A. Correspondence raised a concern that an affected individual’s right to judicial review was purportedly removed in the Trespass By-law.

The Trespass By-law establishes an appeal process. A person to whom a trespass notice is given has a time limited right to appeal to the City’s Hearings Officer. On appeal, the Hearings Officer may revoke the trespass notice, shorten its term or affirm it. The Trespass By-law provides that the decision of a Hearings Officer “is final and not subject to review, including review by any Court”. This is a “privative clause”.

The test to determine the standard of review applicable on an appeal of an administrative decision is set out in Dunsmuir v. New Brunswick, [2008] 1 SCR 190. In Dunsmuir, the Supreme Court held that the analysis must be contextual. The factors to be considered include the presence or absence of a “privative clause”, the purpose of the tribunal as determined by interpretation of enabling legislation, the nature of the question at issue, and the expertise of the tribunal.

As noted above, the determination of whether or how an administrative decision is reviewed is based on a number of factors, one of which is the existence of a privative clause. The inclusion of a privative clause is a signal that the legislative body (in this case, Council) intends that the administrative decision-maker’s decision should be final. In law, a privative clause is not a barrier to such review but an indication of the wishes of the legislative body.

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Accordingly, a privative clause in the Trespass By-law does not prevent any individual from applying to have the municipality’s decisions reviewed by a court. The matter is then out of the municipality’s hands, including whether or not the decision is reviewable, a question which must ultimately be decided by the courts.

No amendment is recommended in relation to this issue.

5.5 Appeal Provisions

The C.C.L.A. Correspondence expressed concern that the appeal provisions in the Trespass By-law required a fee to appeal, allowed only appeals for trespass notices with terms of three months or longer and that the appeal period expires after twenty-one days.

The appeal mechanism is an additional step to the process which is implemented by the Trespass By-law. It is an added right of review which does not exist under the Trespass to Property Act and serves as an extra ‘check and balance’ on the issuance of a trespass notice under the By-law. The appeal process was recommended in both staff reports (Attachments 1 and 2).

As discussed above, judicial review is another avenue that remains open for an affected individual. Generally speaking, existing internal appeal processes must be exhausted before recourse to the courts is granted.

The Trespass By-law contemplates the collection of a fee to appeal a trespass notice but only if a fee has been established in the General Fees and Charges By-law. No fee has yet been established by the General Fees and Charges By-law.

It is proposed to respond to the two remaining concerns expressed by C.C.L.A. by amending the Trespass By-law to lower the threshold term of a trespass notice for which a right of appeal exists from three months to one month and to ensure that the right of appeal continues to exist on each occasion that the term of a trespass notice may be extended by at least one month. The proposed amendments are included in the recommended form of amending by-law (Attachment 6).

5.6 Notification Methods

The C.C.L.A. Correspondence expresses concern that there is an asymmetry in the prescribed methods for sending notices under the By-law to individuals and to the City.

The City’s regulatory by-laws often include provisions for giving and sending notices. The By-law allows the City to provide notices to affected persons under its provisions by personal delivery, mail, fax and email. The By-law allows individuals to give notice to the City by personal delivery and mail.

Part of the rationale for the difference in methods of giving notice is the timelines involved. It is clear from the terms of the By-law that the notices anticipated to be provided by the City to any affected person is, primarily, a trespass notice, which may be required to be given in exigent or emergency circumstances. The notice given by an individual would

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likely be intended to initiate an appeal process under the By-law, which must occur within a specified period of days, i.e. twenty-one days after the trespass notice was given.

Another rationale is the institutional nature of the City regarding the trustworthiness of its information technology system and/or spam filters, which are more suited to sending trustworthy electronic transmissions versus receiving them from unidentified email addresses which may end up caught up in filters or otherwise “lost”. The same level of electronic security safeguards could not be reasonably expected from an individual.

Furthermore, there is not the same concern with institutional recipients avoiding service of legal documents as there might be for individuals, who may not be aware of the repercussions for such behavior and who may wrongly believe that avoiding service provides a tactical advantage. For instance, asymmetry may be seen in the Rules of Civil Procedure which prescribe different methods of service of documents in legal proceedings depending on the recipient’s status as an individual, corporation or lawyer.

That being said, the purpose of notification clauses is, ultimately, to ensure that timely notices come to the attention of the recipient. Similar to alternative and substituted measures in the courts, as long as the City receives the notice or could be reasonably expected to have done so upon evidence of the sender, the strict language of the By-law should not operate to provide a technical or procedural impediment for either party.

No amendment is recommended under this section.

6.0 Financial Implications

There are no financial implications related to the recommendation in this report.

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7.0 Relationship to the Oshawa Strategic Plan

The recommendation in this report responds to the theme: A Safe Community – Develop and enforce by-laws that will help address community safety concerns and respond to provincial regulations.

Visha Sukdeo, Lawyer

David J. Potts, City Solicitor

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Report Attachment 1 toReport CORP-15-08

To: Item: Date of Report:

Corporate Services Committee CORP-13-86-CM June 7, 2013

From: File: Date of Meeting: David J. Potts, City Solicitor and Head,

Legislative and Regulatory Directorate D2110 June,20,2013

Subject: Administration of Notices and Other Matters under the Trespass to Property Act PUBLIC REPORT

1.0 PURPOSE

This report recommends a system to administer notices and other matters under the Trespass to Property Act.

2.0 RECOMMENDATION


That Council pass a by-law to establish a system to administer notices and other matters under the Trespass to Property Act generally in the form of by-law comprising Attachment 1 to Report CORP-13-86-CM.

3.0 EXECUTIVE SUMMARY

The Trespass to Property Act provides a mechanism by which owners of property may prohibit entry onto the owner's property. Presently, Council has delegated authority to the City Manager and to each Commissioner to issue notices under the Act. It is proposed to replace the current broad delegation of authority with a more seeped delegation including a right of appeal to the Hearings Officer.

4.0 INPUT FROM OTHER SOURCES

4.1 General

» The following were consulted in the preparation of this report: • City Manager • Commissioner, Community Services Department

4.2 Auditor General

» The Auditor General was consulted and has no comments.

98011-0704 16

Report to the Corporate Services Item: CORP-13-86-CM Committee (Continued) -2- Meeting Date: June 20, 2013

5.0 ANALYSIS

:? The Ontario Trespass to Property Act ("Act") permits owners of land to prohibit entry onto land or into structures generally by giving notice to that effect ("trespass notices").

:? Item 42 of Schedule "A" to Delegation By-law 29-2009, as amended, currently delegates to the City Manager and to each Commissioner the authority to issue trespass notices. Trespass notices are infrequently issued in relation to protection of persons and City property.

:? It is proposed to repeal Item 42 and to replace it with a system that more prescriptively administers the City's rights under the Act. Attachment 1 is a proposed form of Trespass By-law.

:? Following are the key features of the proposed by-law (including references to applicable sections of the proposed by-law):

• The term, "Prohibited Conduct" (1.1 0), prescribes the circumstances in which a trespass notice may be issued.

• Two levels of delegated authority are proposed. "Authorized Persons" (1.3) could issue a trespass notice effective for up to 3 days (2). "Senior Staff Persons" (1.11) could extend the trespass notice for up to 6 months {3) or could independently issue a trespass notice for up to 6 months (4).

• A Senior Staff Person could revoke certain trespass notices (5).

• A Senior Staff Person could apply to the Hearings Officer to further extend a

trespass notice for a period not exceeding 1 year (6, 7).

• A person to whom a trespass notice is given has a time limited (8) right to appeal to the Hearings Officer (9, 10, 11 ). On appeal, the Hearings Officer may revoke the trespass notice, shorten its term or affirm it (11.3).

• The Director, Municipal Law Enforcement and Licensing Services, may investigate and enforce alleged contraventions of the Act (14).

6.0 FINANCIAL IMPLICATIONS

? The proposed by-law contemplates an "Appeal Fee", "if any, from time to time established by the City's General Fees and Charges By-law" (1.2). If an Appeal Fee were established, its payment would be a condition of the exercise of appeal rights (9). It is proposed that consideration of an Appeal Fee be deferred to the next series of updates to the General Fees and Charges By-law. If an Appeal Fee were established, it will not be necessary to further amend the proposed by-law.

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Report to the Corporate Services Item: CORP-13-86-CM

Committee (Continued) -3- Meeting Date: June 20, 2013

7.0 RELATIONSHIP TO THE OSHAWA STRATEGIC PLAN

? A proposed Trespass By-law is identified in the Legislative and Regulatory Directorate's 2013 Business Plan as an objective in relation to the strategic goal: "Accountable Leadership: Ensure respect, responsiveness and transparency."

J~ Conlin, Director,

Municipal Law Enforcement and Licensing Services

David J. Potts, City Solicitor and Head,

Legislative and Regulatory Directorate

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CORP-13-86-CM Attachment 1

By-law _-2013 of The Corporation of the City of Oshawa

Being a by-law to establish a system for administering notices and other matters under the Trespass to Property Act.

Now THEREFORE the Council of The Corporation of the City of Oshawa ENACTS AS FOLLOWS:

Interpretation

1. In this By-law:

1.1. "Act" means the Trespass to Property Act, R.S.O. 1990, c. T.21;

1.2. "Appeal Fee" means the fee, if any, from time to time established by the City's General Fees and Charges By-law 13-2003, as amended, in relation to an appeal pursuant to section 8;

1.3. "Authorized Person" means each of:

(a) a municipal law enforcement officer employed by the City in its Municipal Law Enforcement and Licensing Services;

(b) a security gl:'ard employed by or under contract with the City;

(c) such persons employed by the City within the City's Recreation and Culture Services Branch as are from time to time appointed by the Commissioner, Community Services Department in consultation with the Director, Recreation and Culture Services;

(d) a police officer employed by a municipal police force, by the Ontario Provincial Police or by the Royal Canadian Mounted Police; and

(e) a Senior Staff Person;

1.4. "By-law" means this by-law and any schedule to this by-law as they may from time to time be amended;

1.5. "City" means The Corporation of the City of Oshawa;

1.6. "City Facility" means any land owned or leased by the City and includes each building and other improvement thereon;

1.7. "Council" means the City's Council; 19

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1.8. "Hearings Officer" means each hearings officer from time to time appointed pursuant to the City's Hearings Officer By-law 26-2008 as from time to time amended;

1.9. "Person" includes an individual, partnership, association, firm or corporation;

1.1 0. "Prohibited Conduct" includes:

(a) damage to a City Facility;

(b) interference with the operation of a City Facility;

(c) interference with others' use of the City Facility; or

(d) contravention of a law of Canada, a law of the Province of Ontario or a municipal by-law;

1.11. "Senior Staff Person" means each of the following:

(a) City Manager;

(b) Commissioner, Community Services Department;

(c) Commissioner, Corporate Services Department;

(d) Commissioner, Development Services Department;

(e) Director, Facilities Management Services;

(f) Director, Human Resource Services;

(g) Director, Municipal Law Enforcement and Licensing Services;

(h) Director, Parks and Environmental Services;

(i) Director, Recreation and Culture Services; and

G) Director, Works and Transportation Services.

1.12. "Service Oshawa" means the Customer Service Division of the City's City Clerk Services and includes each person from time to time employed therein; and

1.13. 'Trespass Notice" means a notice pursuant to section 3 of the Act that is authorized to be given pursuant to this By-law.

Trespass Notice

2. An Authorized Person who has reason to believe that a Person has engaged in Prohibited Conduct may give to the Person a Trespass Notice that prohibits entry on or to a City Facility for a period not exceeding three (3) days.

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3. A Senior Staff Person may extend the term of a Trespass Notice given pursuant to section 2 for a period not exceeding six (6) months by giving to the Person notice of the extension.

4. A Senior Staff Person who has reason to believe that a Person has engaged in Prohibited Conduct may give to the Person a Trespass Notice that prohibits entry on or to a City Facility for a period not exceeding six (6) months.

5. A Senior Staff Person may revoke or suspend a Trespass Notice extended under section 3 or given under section 4 and may impose such conditions respecting the revocation or suspension as the Senior Staff Person considers appropriate.

Application to Extend

6. At any time prior to the expiry of the term of a Trespass Notice as extended under section 3, given under section 4 or extended under subsection 7.3, a Senior Staff Person may apply to the Hearings Officer to extend or to further extend the term of the Trespass Notice by giving to the Person to whom the Trespass Notice was given no fewer than seven (7) days' notice of the date, time and place of the hearing of the application.

7. The following applies to the hearing of an application pursuant to section 6:

7.1. Where a Person to whom notice has been given fails to appear at the time and place scheduled for a hearing of the application, the Person shall be deemed to have consented to the extension request and shall not be entitled to an opportunity to be heard respecting the extension request.

7.2. A Hearings Officer shall not make any decision respecting the application unless the Hearings Officer has given each of the Senior Staff Person and, subject to subsection 7.1, the Person an opportunity to be heard at the time and place scheduled for the hearing of the application.

7.3. A Hearings Officer may refuse to extend the term of the Trespass Notice or,

alternatively, may extend the term of the Trespass Notice for a period not

exceeding one (1) year from the date of the hearing.

7.4. The decision of a Hearings Officer is final and not subject to review including

review by any Court.

Appeal

8. The right of a Person to appeal against the Trespass Notice expires if it has not been exercised in the manner prescribed in section 9 before 4:30p.m. on the twenty-first (21 51) day after the day on which the Trespass Notice was given to the Person in which case:

8.1. the Person shall be deemed to have abandoned the appeal;

8.2. the Trespass Notice shall be deemed to be affirmed; and

8.3. the Trespass Notice shall not be subject to review including review by any Court.

21

4

9. Subject to section 8, where the term of a Trespass Notice as extended under section 3 or given under section 4 exceeds three (3) months, the Person to whom the Trespass Notice was given may appeal to the Hearings Officer against the Trespass Notice by giving to the City written notice of the Person's appeal and by paying the Appeal Fee.

10. A Person who appeals pursuant to section 9 shall be given no fewer than seven (7) days' notice of the date, time and place of the hearing of the appeal.

11. The following applies to the hearing of an appeal pursuant to section 9:

11.1. Where a Person to whom notice has been given pursuant to section 10 fails to appear at the time and place scheduled for a hearing of the appeal or fails to pay the Appeal Fee before the time scheduled for a hearing of the appeal,

(a) the Person shall be deemed to have abandoned the appeal;

(b) the Trespass Notice shall be deemed to be affirmed; and

(c) The Trespass Notice shall not be subject to review including review by any Court.

11.2. Subject to subsection 11.1, a Hearings Officer shall not make any decision respecting the appeal unless the Hearings Officer has given each of the Senior Staff Person and the Person an opportunity to be heard at the time and place scheduled for the hearing of the application.

11.3. Subject to section 8 and subsection 11.1, a Hearings Officer may

(a) revoke the Trespass Notice;

(b) shorten the term of a Trespass Notice; or may

(c) affirm the Trespass Notice.

11.4. The decision of a Hearings Officer is final and not subject to review, including review by any Court.

Notices

12. In addition to the means of giving a Trespass Notice pursuant to section 5 of the Act, a Trespass notice that is given in writing may be given in any of the following ways and is effective:

12.1. when a copy is delivered to the Person to whom it is addressed;

12.2. on the third (3rd) day after a copy is sent by registered mail or by regular lettermail to the Person's last known address;

12.3. upon the conclusion of the transmission of a copy by facsimile transmission to the Person's last known facsimile transmission number; or

!"·.·.!1 ") 22

5

12.4. upon the sending of the notice or document or a copy thereof by e-mail transmission to the Person's last known e-mail address.

13. Any notice or document respecting this By-law to be given to the City shall be in writing, shall be given in any of the following ways and is effective:

13.1. subject to compliance with a Trespass Notice, when a copy is delivered to Service Oshawa during its regular business hours at its reception area in the City's Civic Administration Complex, 1st Floor, West Wing, 50 Centre Street South, Oshawa; or

13.2. on the third (3rd) day after a copy is sent by registered mail or by regular lettermail to the attention of the Authorized Staff Person or Senior Staff Person, as applicable, who issued the Trespass Notice at City of Oshawa, 50 Centre Street South, Oshawa, Ontario, L 1 H 3Z7;

General

14. Nothing in this By-law limits the City's ability to enforce its rights under the Act by all legal means. Without limitation, the Director, Municipal Law Enforcement and Licensing Services may cause to be investigated and to be undertaken such enforcement as the said Director considers appropriate respecting each alleged contravention of the Act.

15. It is Council's opinion that the delegations in this By-law to Authorized Persons, to the Commissioner, Community Services Department, to Senior Staff Persons and to the Hearings Officer are of a minor nature. In forming this opinion, Council has had regard to the number of people, the size of geographic area and the time period affected by the exercise of each delegated power.

16. The short title of this By-law is the 'Trespass By-law".

Consequential Amendment

17. Delegation By-law 29-2009, as amended, is further amended by deleting in row 42 of its Schedule "A" the text in each of the adjacent cells of that row and by substituting the following text: "Deleted by By-law [insert Trespass By-law number]".

By-law passed this __ day of June, 2013.

Mayor City Clerk

23

Attachment 2 toReport CORP-15-08

p---oshawa· Report

To: Item: Date of Report:

Corporate Services Committee CORP-13-154-CM Sept 24, 2013

From: File: Date of Meeting:David J. Potts, City Solicitor and Head,

Legislative and Regulatory Directorate D2110 Oct3, 2013

Subject: Administration of Notices and Other Matters under the Trespass to Property Act (Report 2) PUBLIC REPORT

1.0 PURPOSE


2.0 RECOMMENDATION


That Council pass a by-law to establish a system to administer notices and other matters under the Trespass to Property Act generally in the form of by-law comprising Attachment 1 to Report CORP-13-154-CM


The Trespass to Property Act provides a mechanism by which owners of property may prohibit entry onto the owner's property. Presently, Council has delegated authority to the City Manager and to each Commissioner to issue notices under the Act. It is proposed to replace the current broad delegation of authority with a more scoped delegation including a right of appeal to the Hearings Officer.


4.1 General

>- The following were consulted in the preparation of this report: • City Manager • Commissioner, Community Services Department

98011-0704 24

Report to the Corporate Services Item: CORP-13-154-CM Committee (Continued) -2- Meeting Date: October 3, 2013

5.0 ANALYSIS

~ Attachment 2 is Report CORP-13-86-CM in which staff recommends a proposed form of Trespass By-law which would more prescriptively administer the City's rights under the Ontario Trespass to Properly Act ("Act").

~ On Jun 20/13, Corporate Services Committee tabled the report to its Sep 12/13 meeting.

~ On Sep 12/13, Committee referred the report to staff to "consider concerns regarding the number ofpeople defined as authorized to issue orders and the term of the initial trespass order and report back to Committee".

~ It is proposed to further scope the list of "Authorized Persons" by deleting paragraph 1.3(a)- municipal law enforcement officers- and by seeping the class of appointed employees referenced in paragraph 1.3(c) to those at the rank of Supervisor or above. The changes to subsection 1.3 are highlighted in Attachment 1.

~ It is proposed to simplify the list of "Senior Staff Persons" with a generic reference to Directors. The changes to subsection 1.11 are highlighted in Attachment 1.

~ It is proposed to maintain the period, three (3) days, as the maximum term for which an "Authorized Person" may issue a Trespass Notice (section 2). This short term is considered the minimum reasonably required for a Senior Staff Person to consider the extension of the three-day term if required (eg., on the Monday following a Friday on which a Trespass Notice is given) (section 3).

~ It is proposed to maintain the reference to a simple number of days, as opposed to "business days" or some other method of computing time. The current reference to a simple number of "three (3)" days is the clearest expression of the maximum term of Trespass Notice applicable to Authorized Persons.

6.0 FINANCIAL IMPLICATIONS

~ Not applicable.

1n .. ·

25

Report to the Corporate Services Item: CORP-13-154-CM Committee (Continued) - 3 - Meeting Date: October 3, 2013


);> A proposed Trespass By-law is identified in the Legislative and Regulatory Directorate's 2013 Business Plan as an objective in relation to the strategic goal: ",L\c.cpuntable Leadership: Ensure respect, responsiveness and transparency."

,. \

\"J k

,i ~

Jerry C nlin, Director,

Muni' 1pal Law Enforcement and Licensing Services

David J. Potts, City Solicitor and Head,

Legislative and Regulatory Directorate

Attachments

26


By-law _-2013~Oshawa® of The Corporation of the City of Oshawa


NOW THEREFORE the Council of The Corporation of the City of Oshawa ENACTS AS FOLLOWS:

Interpretation

1. In this By-law:




(a) a security guard employed by or under contract with the City;

(b) such persons employed by the City within the City's Recreation and Culture Services Branch at the rank of Supervisor or higher as are from time to time appointed by the Commissioner, Community Services Department in consultation with the Director, Recreation and Culture Services;

(c) a police officer employed by a municipal police force, by the Ontario Provincial Police or by the Royal Canadian Mounted Police; and

(d) a Senior Staff Person;




1.7. "Council" means the City's Council;

27

2

1.8. "Hearings Officer" means each hearings officer from time to time appointed

pursuant to the City's Hearings Officer By-law 26-2008 as from time to time

amended; ·







1.11. "Senior Staff Person" means the City Manager, each Commissioner and each Director of the City

1.12. "Service Oshawa" means the City's Customer Service Division and includes each person from time to time employed therein; and

1.13. "Trespass Notice" means a notice pursuant to section 3 of the Act that is

authorized to be given pursuant to this By-law.

Trespass Notice







28

3



7.2. A Hearings Officer shall not make any decision respecting the application unless the Hearings Officer has given each of the Senior Staff Person and, subject to subsection 7.1, the Person an opportunity to .be heard at the time and place scheduled for the hearing of the application.




7.4. The decision of a Hearings Officer is final and not subject to review including review by any Court.

Appeal

8. The right of a Person to appeal against the Trespass Notice expires if it has not been exercised in the manner prescribed in section 9 before 4:30p.m. on the twenty-first (21 5t) day after the day on which the Trespass Notice was given to the Person in which case:





10. A Person who appeals pursuant to section 9 shall be given no fewer than seven (7) days' , notice of the date, time and place of the hearing of the appeal.





(c) The Trespass Notice shall not be subject to review including review by any Court. ");' f'i ' ?..' • .

29

4







Notices







13.1. subject to compliance with a Trespass Notice, when a copy is delivered to Service Oshawa during its regular business hours at its reception area in the City's Civic Administration Complex, 50 Centre Street South, Oshawa; or


30

5

General


15. It i's Council's opinion that the delegations in this By-law to Authorized Persons, Senior Staff Persons and to the Hearings Officer are of a minor nature. In forming this opinion, Council has had regard to the number of people, the size of geographic area and the time period affected by the exercise of each delegated power.

16. The short title of this By-law is the "Trespass By-law".


17. Delegation By-law 29-2009, as amended, is further amended by deleting in row 42 of its Schedule "A" the text in each of the adjacent cells of that row and by substituting the following text: "Deleted by By-law [insert Trespass By-law numberf'.

By-law passed this __ day of October, 2013.

Mayor City Clerk

31

CORP-13-154-CM

Attachr!Jent 2

Report ~Oshawa· To: Item: Date of Report:

Corporate Services Committee CORP-13-86-CM June 7, 2013

From: File: Date of Meeting: David J. Potts, City Solicitor and Head,

Legislative and Regulatory Directorate D2110 June,20,2013

Subject: Administration of Notices and Other Matters under the Trespass to Property Act PUBLIC REPORT

1.0 PURPOSE


2.0 RECOMMENDATION


. That Council pass a by-law to establish a system to administer notices and other matters under the Trespass to Property Act generally in the form of by-law comprising Attachment 1 to Report CORP-13-86-CM.


The Trespass to Property Act provides a mechanism by which owners of property may

prohibit entry onto the owner's property. Presently, Council has delegated authority to the

City Manager and to each Commissioner to issue notices under the Act. It is proposed to

replace the current broad delegation of authority with a more scoped delegation including

a right of appeal to the Hearings Officer.


4.1 General

> The following were consulted in the preparation of this report: • City Manager • Commissioner, Community Services Department

4.2 Auditor General

> The Auditor General was consulted and has no comments.

,.:,•., J 98011-0704 32

Report to the Corporate Services Item: CORP-13-86-CM Committee (Continued) -2- Meeting Date: June 20, 2013

5.0 ANALYSIS

? The Ontario Trespass to Property Act ("Act") permits owners of land to prohibit entry onto land or into structures generally by giving notice to that effect ("trespass notices").

? Item 42 of Schedule "A" to Delegation By-law 29-2009, as amended, currently delegates to the City Manager and to each Commissioner the authority to issue trespass notices. Trespass notices are infrequently issued in relation to protection of persons and City property.

? It is proposed to repeal Item 42 and to replace it with a system that more prescriptively administers the City's rights under the Act. Attachment 1 is a proposed form of Trespass By-law.

? Following are the key features of the proposed by-law (including references to applicable sections of the proposed by-law):

• The term, "Prohibited Conduct" (1.1 0), prescribes the circumstances in which a trespass notice may be issued.

• Two levels of delegated authority are proposed. "Authorized Persons" (1.3) could issue a trespass notice effective for up to 3 days (2). "Senior Staff Persons" (1.11) could extend the trespass notice for up to 6 months (3) or could independently issue a trespass n

Report to the Corporate Services Item: CORP-13-86-CM Committee (Continued) - 3- Meeting Date: June 20, 2013


);- A proposed Trespass By-law is identified in the Legislative and Regulatory Directorate's 2013 Business Plan as an objective in relation to the strategic goal: "Accountable Leadership: Ensure respect, responsiveness and transparency."

Je~ Conlin, Director, 1

Municipal Law. Enforcement and Licensing Services

David J. Potts, City Solicitor and Head, Legislative and Regulatory Directorate

34


By-law _-2013~Oshawa· of The Corporation of the City of Oshawa



Interpretation

1. In this By-law:




(a) a municipal law enforcement officer employed by the City in its Municipal Law Enforcement and Licensing Services;

(b) a security g~ard employed by or under contract with the City;

(c) such persons employed by the City within the City's Recreation and Culture Services Branch as are from time to time appointed by the Commissioner, Community Services Department in consultation with the Director, Recreation and Culture Services;

(d) a police officer employed by a municipal police force, by the Ontario Provincial Police or by the Royal Canadian Mounted Police; and

(e) a Senior Staff Person;





35

2

1.8. "Hearings Officer" means each hearings officer from time to time appointed pursuant to the City's Hearings Officer By-law 26-2008 as from time to time amended;







1.11. "Senior Staff Person" means each of the following:

(a) City Manager;

(b) Commissioner, Community Services Department;

(c) Commissioner, Corporate Services Department;

(d) Commissioner, Development Services Department;

(e). Director, Facilities Management Services;

(f) Director, Human Resource Services;

(g) Director, Municipal Law Enforcement and Licensing Services;

(h) Director, Parks and Environmental Services;

(i) Director, Recreation and Culture Services; and

(j) Director, Works and Transportation Services.

1.12. "Service Oshawa" means the Customer Service Division of the City's City Clerk Services and includes each person from time to time employed therein; and

1.13. "Trespass Notice" means a notice pursuant to section 3 of the Act that is authorized to be given pursuant to this By-law.

Trespass Notice


36

3







7 .1. Where a Person to whom notice has been given fails to appear at the time and place scheduled for a hearing of the application, the Person shall be deemed to have consented to the extension request and shall not be entitled to an opportunity to be heard respecting the extension request.







Appeal

8. The right of a Person to appeal against the Trespass Notice expires if it has not been exercised in the manner prescribed in section 9 before 4:30p.m. on the twenty-first (21 5t) day after the day on which the Trespass Notice was given to the Person in which case:

8.1. the Person shari be deemed to have abandoned the appeal;


8.3. the Trespass Notice shall not be subject tg_ revie~.igc;l.uding review by any Court.

37

4


10. A Person who appeals pursuant to section 9 shall be given no fewer than seven (7) days' notice of the date, time and place of the hearing of the appeal.





(c) The Trespass Notice shall not be subject to review including review by any Court.







Notices





38

5



13.1. subject to compliance with a Trespass Notice, when a copy is delivered to Service Oshawa during its regular business hours at its reception area in the City's Civic Administration Complex, 151 Floor, West Wing, 50 Centre Street South, Oshawa; or


General

14. Nothing in this By-law limits the City's ability to enforce its rights under the Act by all legal means. Without limitation; the Director, Municipal Law Enforcement and Licensing Services may cause to be investigated and to be undertaken such enforcement as the said Director

·considers appropriate respecting each alleged contravention of the Act.

15. It is Council's opinion that the delegations in this By-law to Authorized Persons, to the Commissioner, Community Services Department, to Senior Staff Persons and to the Hearings Officer are of a minor nature. In forming this opinion, Council has had regard to the number of people, the size of geographic area and the time period affected by the exercise of each delegated power.

16. The short title of this By-law is the 'Trespass By-law".


17. Delegation By-law 29-2009, as amended, is further amended by deleting in row 42 of its Schedule "A" the text in each of the adjacent cells of that row and by substituting the following text "Deleted by By-law [insert Trespass By-law numberf'.

By-law passed this __ day of June, 2013.

Mayor City Clerk

39

By-law 98-2013 ~Oshawa• of The Corporation of the City of Oshawa

Being a by law to establish a system for administering notices and other matters under the Trespass to Property Act.

Now THEREFORE the Council of The Corporation of the City of Oshawa ENACTS AS FOLLOWS:

Interpretation

1. In this By-Jaw:

1.1. "Act" means the Trespass to Prope.rty Act, R.S.O. 1990, c. T.21 ;

1.2. "Appeal Fee" means the fee, if any, from time to time established by the City's General Fees and Charges By-law 13 2003, as amended, in relation to an appeal pursuant to section 8;


(a) a security guard employed by or under contract with the City;

(b) such persons employed by the City within the City's Recreation and Culture Services Branch at the rank of Supervisor or higher as are from time to time appointed by the Commissioner, Community Services Department in consultation with the Director, Recreation and Culture Services;

(c) a police officer employed by a municipal police force, by the Ontario Provincial Police or by the Royal Canadian Mounted Police; and

(d) a Senior Staff Person;





1.8. "Hearings Officer" means each hearings officer from time to time appointed

pursuant to the City's Hearings Officer By-law 26-2008 as from time to time

amended;


1.10. "Prohibited Conduct" includes:





1.11 . "Senior Staff Person" means the City Manager, each Commissioner and each Director of the City

1.12. "Service Oshawa" means the City's Customer Service Division and includes each person from time to time employed therein; and 40

7.

2

1.13. 'Trespass Notice" means a notice pursuant to section 3 of the Act that is

authorized to be given pursuant to this By-law.

Trespass Notice






6. At any time prior to the expiry of the term of a Trespass Notice as extended under section 3, given under section 4 or extended under subsection 7.3, a Senior Staff Person may apply to the Hearings Officer to extend or to further extend the term of the Trespass Notice by giving to the Person to whom the Trespass Notice was given no fewer than seven (7) days' notice of the date, time and place of the hearing of the application. The following applies to the hearing of an application pursuant to section 6:








Appeal

8. The right of a Person to appeal against the Trespass Notice expires if it has not been exercised in the manner prescribed in section 9 before 4:30 p.m. on the twenty-first (215t) day after the day on which the Trespass Notice was given to the Person in which case:





10. A Person who appeals pursuant to section 9 shall be given no fewer than seven (7) days' notice of the date, time and place of the hearing of the appeal. 41

3

11 . The following applies to the hearing of an appeal pursuant to section 9:

11.1 . Where a Person to whom notice has been given pursuant to section 10 fails to appear at the time and place scheduled for a hearing of the appeal or fails to pay the Appeal Fee before the time scheduled for a hearing of the appeal,



(c) The Trespass Notice shall not be subject to review including review by any Court. 11.2. Subject to subsection 11 .1, a Hearings Officer shall not make any decision

respecting the appeal unless the Hearings Officer has given each of the Senior Staff Person and the Person an opportunity to be heard at the time and place scheduled for the hearing of the application.

11 .3. Subject to section 8 and subsection .11 .1, a Hearings Officer may





Notices







13.1. subject to compliance with a Trespass Notice, when a copy is delivered to Service Oshawa during its regular business hours at its reception area in the City's Civic Administration Complex, 50 Centre Street South, Oshawa; or


General


42

4

15. It is Council's opinion that the delegations in this By-law to Authorized Persons, Senior Staff Persons and to the Hearings Officer are of a minor nature. In forming this opinion, Council has had regard to the number of people, the size of geographic area and the time period affected by the exercise of each delegated power.

16. The short title of this By-Jaw is the ''Trespass By-law".


17. Delegation By-law 29-2009, as amended , is further amended by deleting in row 42 of its Schedule "A" the text in each of the adjacent cells of that row and by substituting the following text: "Deleted by By-law 98-2013".

By-law passed this fifteenth day of October, 2013.

City Clerk

43

CORP-13-183

CANADIAN ASSOCIATIONeee

CIVIL LIBERTIES CANADIENNE DESeoe

ASSOCIATION eee LIBERTES CIVILES

215 Spadina Ave., Suite 210 215 ave Spadina, Bureau 210 Toronto, ON MST 2C7 Toronto, ON M5T 2C7

Telephone (416) 363-0321 Telephone {416) 363-0321 FAX (416) 861-1291 Teh9copieur (416) 861-1291

E-mail: [email protected] Courriel: [email protected] s ~ 'L..§_f~

~y- ~,,,,("'~ Mayor John G. Henry & City Councillors "vf RE:CE

"interference with others' use of the City Facility". 1 In addition, issuing a trespass notice because an individual has contravened a federal or provincial law, or a municipal by-law, is also extremely broad. For example, this would allow trespass notices to be issued because of parking violations or other infractions completely unrelated to conduct on municipal property. There is no reason to believe that this kind of approach to such problems is helpful or necessary. The right to participate in one's local government is crucial in a democratic society and cannot be lightly swept aside (or otherwise constrained).

The manner in which the policy is currently drafted simply leaves too much discretion in the hands of those charged with its enforcement by allowing them to determine when behavior constitutes sufficient "interference" to warrant issuing a notice. CCLA has been critical in a number of cases where municipalities have issued trespass notices against residents who attend at council meetings and are critical of their elected officials, sometimes in harsh terms. On a number of occasions, CCLA has written to municipalities and succeeded in having these notices rescinded or reviewed. 2 Indeed, the CCLA has requested information from Oshawa in the past with respect to its trespass notice practices. However, residents should not need the assistance of our organization to secure their basic rights. Municipal governments, like all public bodies, should not have the ability to exclude individuals from a public location simply because they disagree with the content of the messages being conveyed. It is incumbent on municipal agents to act with restraint when the message is critical of members of the municipal government. As currently drafted, the Policy does not safeguard against this potential for abuse. Trespass notices issued by municipalities to keep individuals off public property and out of City Hall should be rare and only used where there is a serious and credible threat to safety.

In addition to the overriding concern about eliminating rights of participation from local residents - which we reiterate is a hallmark of the democratic process -- there are a number of instances where the by-law appears to contain procedural provisions that may result in prejudice to the individual subject to the notice:

• First, the number of individuals who are authorized to issue trespass notices is unduly large. Given that the issuance of a notice has the potential effect of excluding individuals from public property for a substantial period of time, we would suggest that only a relatively small group of individuals should be empowered to enforce the Trespass to Property Act and/or issue a trespass notice.

• Second, the by-law purports to remove a right of judicial review from individuals whose banning from City Hall has been the subject of a decision by a Hearing Officer. While we do not believe this clause effectively bars individuals from seeking recourse to the

1 By-law 90-2013, s. 1.10.

2 See e.g. CCLA's March 2013 e-bul!etin, available online at: http:l/ccla.org/2013/02/28/march-2013-e

bulletin/#tresgassbans.

2

45

http:l/ccla.org/2013/02/28/march-2013-e

courts (nor could it), we are concerned that it sends a message to residents that they have no rights ofjudicial review. This is misleading and troubling.

• Third, the by-law's appeal provisions are problematic. Individuals may only appeal a ban

that is longer than three months, but being banned from City Hall, even for a short period

of time, is a serious infringement of basic rights and freedoms. The right of appeal also requires residents to pay an Appeal Fee and expires twenty-one days after the Notice is

issued. There is no similar restriction on when a Senior Staff person can apply to extend an order and it therefore appears to be possible that a Notice could be extended after a resident's right of appeal has expired.

• Fourth, there is asymmetry in the manner in which Notices may be given to a resident versus how the City is to be notified. While the City can notify individuals (of a hearing to extend, for example) by way of delivery, registered mail, regular mail, fax or email,

residents may only provide notice to the City by delivery, or registered or regular mail. Creating additional burdens on individuals subject to these notices is not justified. In addition, this asymmetry may result in lost communications since a resident may justifiably assume that if the City sends them correspondence via email, they can respond using the same method.

To conclude, by-law 98-2013 is problematic from a number of perspectives and we urge you to reconsider it or delay its implementation so that individuals can participate in a public consultation process and the issues highlighted above can be rectified.

Please don't hesitate to contact me if you would like to discuss this matter further. CCLA would welcome the opportunity to speak with the Mayor and/or City Councillors about an appropriate way to address some of the municipality's recent issues at local meetings.

Sincerely,

Cara Faith Zwibel Director, Fundamental Freedoms Program

4

3

46

Attachment 5 toReport CORP-15-08

CORP-13-195

CANADIAN ASSOCIATIONeee CIVIL LIBERTIES CANADIENNE DESeoe ASSOCIATION LIBERTES CIVILESeee

215 Spadina Ave., Suite 210 Toronto, ON M5T 2C7

Telephone (416) 363-0321 FAX (416) 861-1291

E-mail: [email protected]

215 ave Spadina, Bureau 210 Toronto, ON M5T 2C7 Telephone (416) 363-0321 Teh§copieur (416) 861-1291 Courriel: [email protected]

Corporate Services Committee c/o Mary Medeiros, Manager, Support Services

Oshawa City Hall 50 Centre Street South

Oshawa, ON L1H3Z7

November 27,2013

VIA EMAIL

Dear Committee Members,

I am writing on behalf of the Canadian Civil Liberties Association (CCLA) and further to my correspondence of November 4, 2013 regarding by-law 98-2013 (Administration ofNotices and Other Matters under the Trespass to Property Act). I understand that the Committee has recommended that my correspondence be referred to Legal Services to prepare a report.

Since sending my previous correspondence, I have been contacted by a number of individuals in Oshawa who are concerned about the manner in which Council meetings are being conducted and their ability to meaningfully participate in these meetings. I would like an opportunity to address the Corporate Services Committee on this issue with a view to addressing the full Council at its next meeting.

Sincerely,

Cara Faith Zwibel Director, Fundamental Freedoms Program

47

mailto:[email protected]:[email protected]

By-law ___-2015 of The Corporation of the City of Oshawa Attachment 6 to Report CORP-15-08 Being a by-law to amend Trespass By-law 98-2013.


1. Trespass By-law 98-2013 is amended as follows:

1.1. By adding a new subsection 1.8.1 as follows:

1.8.1 “Meeting Room” means that part of a City Facility in which Council or one of its

Standing Committees is holding a meeting pursuant to the Municipal Act, 2001,

S.O. 2001, c. 25, as amended;

1.2. By adding a new section 5A as follows:

5A. A Trespass Notice is not effective during the period and only to the extent that

the Trespass Notice prevents a Person from entering or remaining in a Meeting

Room provided that the Person complies with the following conditions:

5A.1. The Person notifies the City Clerk of the Person’s intention to attend the

meeting no later than one (1) day prior to the scheduled commencement

of the meeting;

5A.2. The Person enters the Meeting Room no earlier than fifteen (15) minutes

prior to the scheduled commencement of the meeting;

5A.3. The Person remains in the Meeting Room no longer than fifteen (15)

minutes after the meeting is adjourned; and

5A.4. The Person complies

corp-15-08 - ccla and trespass by-law -...

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