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HomeMy WebLinkAboutLGL-012-11 li REPORT LEGAL DEPARTMENT Meeting: GENERAL PURPOSE AND ADMINISTRATION COMMITTEE Date: December 12, 2011 Resolution#: (0 / t/ By-law#: Report#: LGL-012-11 File#: L1000-12 Subject: PROPOSED NUISANCE BY-LAW RECOMMENDATIONS: It is respectfully recommended that the General Purpose and Administration Committee recommend to Council the following: 1. THAT Report LGL-012-11 be received; 2. THAT the By-law attached to Report LGL-012-11 be approved; and 3. THAT Inspector Chris Ostler of the Durham Regional Police Service be advised of Council's decision. :i t _ r Submitted by: Reviewed by: Andrew C. Allison Franklin Wu Municipal Solicitor Chief Administrative Officer ACA/j b CORPORATION OF THE MUNICIPALITY OF CLARINGTON 40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L1C 3A6 T 905-623-3379 REPORT NO.: LGL-012-11 PAGE 2 1.0 BACKGROUND 1.1 At the November 7, 2011 Council meeting, Council resolved (Resolution #C-482- 11) as follows: THAT the proposed nuisance by-law be referred to the solicitor to consider and incorporate Dr. Larose's comments; and THAT a copy of the report be forwarded to the City of Oshawa. 1.2 During his deputation on November 7, 2011, Dr. Larose made the following comments in relation to the proposed Nuisance By-law: 11-Concerns The proposed By-Law intends to address, and rightly so, various issues that are deemed to be offensive and socially unacceptable— So far, so good! However, it fails to distinguish between... • the unacceptable gatherings and actions of the less desirable elements of the human species and • the acceptable gatherings and actions that are associated with a healthy democracy. V-Recommendations In order to avoid future subjective interpretations, the text of the proposed By-Law should be amended as follows: 1 - Include the following limitation..... • This By-Law should explicitly and formally indicate that the expression "Nuisance"is limited to Socially Reprehensible and Destructive Behaviors. 2 - Amend the list of interpretations and Prohibited Activities. 3 - Include a new section entitled "Scope and Extent", with appropriate numbering of items... • No provision of this By-Law is intended to intimidate people in pursuit of democratic activities or in the expression of their displeasure vis-a-vis the conduct of elected officials. REPORT NO.: LGL-012-11 PAGE 3 • Nothing in this By-Law should be construed to bar in any way Legitimate Peaceful, but possibly Vocal, Assemblies and the Freedom of Expression. • This By-Law is consistent with the Charter of Rights and Freedoms. 2.0 DISCUSSION 2.1 The general intent and purpose of the proposed Nuisance By-law was addressed in Report CLD-027-11 (Attachment 1). In order to further clarify the purpose of the proposed by-law, a new section has been added (section 7 in Attachment 2). 2.2 Many of the concerns expressed by Dr. Larose regarding Charter rights were addressed in a recent decision dealing with the "Occupy Toronto" movement (Batty v. City of Toronto, 2011 ONSC 6862). This decision addressed the concerns expressed by Dr. Larose in his request for a new "Scope and Extent" section. 3.0 CONCURRANCE 3.1 The Municipal Clerk has reviewed this report and concurs with the recommendations. Attachments: Attachment 1: Report CLD-027-11 Attachment 2: Proposed Nuisance By-law ATTACHMENT NO. 1 TO REPORT LGL-011-12 Kam E rwft 0 K'T CLERK'S DEPARTMENT Meeting: GENERAL PURPOSE AND ADMINISTRATION COMMITTEE Date: October 31, 2011 Resolution#: 9M- 631-11 By-law#: Report#: CLD-027-11 File#: Subject: PROPOSED NUISANCE BY-LAW RECOMMENDATIONS: It is respectfully recommended that the General Purpose and Administration Committee recommend to Council the following: 1. THAT Report CLD-027-11 be received; 2. . THAT the By-law attached to Report CLD-027-11, a by-law to regulate and prohibit public nuisances be approved; and 3. THAT Inspector Chris Ostler of the Durham Regional Police Service be advised of Council's decision. Submitted by: Reviewed by: Vu t ' �pdlrC ie Franklin Wu, nici ler k Chief Administrative Officer PLB/LDC CORPORATION OF THE MUNICIPALITY OF CLARINGTON 40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L1C 3A6 T 905-623-3379 REPORT NO.: CLD-027-11 PAGE 2 1. BACKGROUND In 1994, the Municipality, in response to a request from the Durham Regional Police, passed a Loitering By-law. The By-law was intended to assist the police in dealing with groups of people congregating and causing problems for pedestrians in various areas within the Municipality. It was felt that such a by-law would give the police the tools necessary to deal effectively with these situations. While it has proven to be a useful tool, it has not gone far enough to address all the needs of the police. In recent years, acts of general rowdiness and unacceptable conduct have increased and the police have once again come to the Municipality for assistance. 2. COMMENTS In order to address the concerns of the police, a by-law to regulate and prohibit public nuisances has been prepared. The proposed by-law contains many of the key elements of the City of Oshawa's by-law and others in effect around the province. By creating offences for public urination, fighting, vandalism and other public nuisances in a municipal by-law, it will be easier for the police to respond to these situations. The police are requesting this by-law be enacted in Clarington to offer them a more expedient option to address these situations. 3. PARTICULARS OF RESTRICTIONS The Municipal Act, 2001 allows a council to designate certain activities as a public nuisance within the municipality. For the purposes of this by-law, these activities will include public urination; defecation, vomiting, screaming and other acts which are injurious or offensive to the general public. This collection of offences will give the police an option for enforcement beyond that of a criminal charge, thus allowing for faster, more effective response to public calls for service. Including these activities in the by-law does not remove them or protect an individual from possible criminal prosecution if, in the opinion of the investigating officer, such action is warranted. It simply adds to the list of available options for police enforcement. i REPORT NO.: CLD-027-11 PAGE 3 4. CONCURRENCE This report has been reviewed by the Municipal Solicitor who concurs with the recommendations. Copies of both the Report and the By-law have been forwarded to the Durham Regional Police for their information. Inspector Ostler has indicated that they concur with the recommendations. 5. CONCLUSION Staff have spoken at length with the Durham Regional Police about this proposal and it has been strongly encouraged and endorsed by the police. During those conversations, it was clearly understood that the most logical agency to enforce the provisions of this by-law would be the police and they will, in fact, be the primary agency to enforce this by-law. CONFORMITY WITH STRATEGIC PLAN — Not Applicable I Staff Contact: Len Creamer, Manager, Municipal Law Enforcement Attachment: Attachment 1 - Proposed Nuisance By-law List of interested parties to be advised of Council's decision: Inspector Ostler, Durham Regional Police Service i i ATTACHMENT#–.L—To REPORT# d k0-0 V` -11 i MUNICIPALITY OF CLARINGTON BY-LAW 2011- A By-law to regulate and prohibit public nuisances i WHEREAS Section 128 of the Municipal Act, 2001 provides that a municipality may prohibit and regulate with respect to public nuisances including matters that, in the opinion of Council, are or could become or cause public nuisances; NOW THEREFORE the Council of The Corporation of the Municipality of Clarington enacts as follows; Part 1 -INTERPRETATION Definitions 1. In this by-law, "defecate" means to discharge excrement from the human body; "highway"has the same meaning as in the Highway Traffic Act, R,S.O. 1990 c. H. 8; "Municipality"means The Corporation of the Municipality of Clarington or the geographic area of Clarington, as the context requires; "nuisance"includes, (a) soliciting; (b) fighting, screaming,yelling or using profane or abusive language or gestures; (c) defacing, damaging or vandalizing public or private property; (d) expectorating in a public place; (e) anything which is injurious to the health, or indecent,or offensive to the senses, or an obstruction to the free use of property so as to interfere with the comfortable enjoyment of life or property;and (f) any other activity or conduct that is disorderly, annoying, unpleasant or obnoxious; "officer" means any employee, officer or agent of the Municipality whose duties include the enforcement of this by-law and any police officer as defined in section 2 of the Police Services Act, R.S.O. 1990, c. P.15; "person"includes an individual, association,firm, partnership, corporation, trust, organization, trustee, or agent, and their heirs, executors,or legal representatives; "public place"includes a highway and any place to which the public has access as of right or invitation, express or implied,and private property that is exposed to public view,whether or not the property is owned by the person contravening the by-law; "solicit" means to request, in person,the immediate provision of money or another thing of value, regardless of whether consideration is offered or provided in return, using spoken,written or printed word, a gesture or other means; Nuisance By-law 2011-XXX Page 2 "urinate" means to discharge urine from the human body; and "vomit"means to throw up the contents of the stomach, i References 2. In this by-law, reference to any Act is reference to that Act as it is amended or re- enacted from time to time. 3. Unless otherwise specified, references in this by-law to sections and subsections are references to sections and subsections in this by-law. Word Usage 4. This by-law shall be read with all changes in gender or number as the context may require. 5. A grammatical variation of a word or expression defined has a corresponding meaning. Application 6. This by-law applies to all land within the Municipality unless specifically exempted by this By-law. Part 2-PROHIBITED ACTIVITIES 7. (a) No person shall cause, create or permit a nuisance in any public place without reasonable excuse, (b) For the purposes of this section, "reasonable excuse"means, (i) the contravention of this by-law must be inevitable, unavoidable and afford no reasonable opportunity for an alternative course of action that does not contravene this by-law; and (ii) where the contravention of this by-law is the consequence of illness, the person did not contemplate or, acting reasonably ought not to have contemplated,that the person's actions would likely cause the illness or give rise to the contravention of this by-law. 8. No person shall knock over,attempt to knock over, deface, attempt to deface, remove or attempt to remove a Canada Post mailbox, relay box, newspaper box, Blue Box, garbage container, traffic or street sign, utility pole or any other public or private property. Order to Discontinue Activity 9. (1) Where an officer is satisfied that a person has contravened this by-law, the officer may make an order requiring the person who contravened the by- law or who caused or permitted the contravention or the owner or occupier of the land on which the contravention occurred to discontinue the contravening activity. (2) An order under this section shall set out, (a) reasonable particulars of the contravention adequate to identify the contravention and the location of the land on which the contravention occurred; and (b) the date by which there must be compliance with the order. I i i Nuisance By-law 2011-XXX Page 3 10. No person shall fail to comply with an order issued under this by-law. Obstruction 11. No person shall hinder or obstruct, or attempt to hinder or obstruct, an officer who is exercising a power or performing a duty under this by-law. Offence and Penalty 12. Every person who contravenes any provision of this by-law guilty of an offence upon conviction is liable to a fine pursuant to the provisions of the Provincial Offences Act, R.S.O, 1990, c, P.33. Part 3 -GENERAL, PROVISIONS Conflict 13, If there is a conflict between a provision of this by-law and a provision of any other Municipal by-law, the provision that establishes the higher standard to protect the health and safety of the public and to maintain clean and tidy condition on land shall apply. Short Title 14. The short title of this by-law is the"Nuisance By-law", Effective Date 15, This by-law shall be effective on the date of its passing. By-law approved this _day of November, 2011. Mayor Adrian Foster Patti L Barrie Municipal Clerk ATTACHMENT NO. 2 TO REPORT LGL-011-12 I MUNICIPALITY OF CLARINGTON BY-LAW 2011- A By-law to regulate and prohibit public nuisances WHEREAS Section 128 of the Municipal Act, 2001 provides that a municipality may prohibit and regulate with respect to public nuisances including matters that, in the opinion of Council, are or could become or cause public nuisances. NOW THEREFORE the Council of The Corporation of the Municipality of Clarington enacts as follows: Part 1 - INTERPRETATION Definitions 1. In this by-law, "defecate" means to discharge excrement from the human body; i "highway" has the same meaning as in the Highway Traffic Act, R.S.O. 1990, c. H. 8; "Municipality" means The Corporation of the Municipality of Clarington or the geographic area of Clarington, as the context requires; "nuisance" includes, (a) soliciting; (b) fighting, screaming, yelling or using profane or abusive language or gestures; (c) defacing, damaging or vandalizing public or private property; (d) expectorating in a public place; (e) anything which is injurious to the health, or indecent, or offensive to the senses, or an obstruction to the free use of property so as to interfere with the comfortable enjoyment of life or property;and (f) any other activity or conduct that is disorderly, annoying, unpleasant or obnoxious; Nuisance By-law 2011-XXX Page 2 "officer" means any employee, officer or agent of the Municipality whose duties include the enforcement of this by-law and any police officer as defined in section 2 of the Police Services Act, R.S.O. 1990, c. P.15; "person" includes an individual, association, firm, partnership, corporation, trust, organization, trustee, or agent, and their heirs, executors, or legal representatives; "public place" includes a highway and any place to which the public has access as of right or invitation, express or implied, and private property that is exposed to public view, whether or not the property is owned by the person contravening the by-law; "solicit" means to request, in person, the immediate provision of money or another thing of value, regardless of whether consideration is offered or provided in return, using spoken, written or printed word, a gesture or other means; "urinate" means to discharge urine from the human body; and "vomit" means to throw up the contents of the stomach. References 2. In this by-law, reference to any Act is reference to that Act as it is amended or re- enacted from time to time. 3. Unless otherwise specified, references in this by-law to sections and subsections are references to sections and subsections in this by-law. Word Usage 4. This by-law shall be read with all changes in gender or number as the context may require. 5. A grammatical variation of a word or expression defined has a corresponding meaning. Application 6. This by-law applies to all land within the Municipality unless specifically exempted by this By-law. Purpose 7. This by-law is intended to regulate and prohibit socially reprehensible and destructive behaviours. Nothing in this by-law is intended to regulate or in any I i Nuisance By-law 2011-XXX Page 3 way prohibit the freedom of expression and the freedom of peaceful assembly guaranteed under the Canadian Charter of Rights and Freedoms. i Part 2 - PROHIBITED ACTIVITIES 8. (a) No person shall cause, create or permit a nuisance in any public place without reasonable excuse. (b) For the purposes of this section, "reasonable excuse" means, (i) the contravention of this by-law must.be inevitable, unavoidable and afford no reasonable opportunity for an alternative course of action that does not contravene this by-law; and (ii) where the contravention of this by-law is the consequence of illness, the person did not contemplate or, acting reasonably ought not to have contemplated, that the person's actions would likely cause the illness or give rise to the contravention of this by-law. 9. No person shall knock over, attempt to knock over, deface, attempt to deface, remove or attempt to remove a Canada Post mailbox, relay box, newspaper box, Blue Box, garbage container, traffic or street sign, utility pole or any other public or private property. Order to Discontinue Activity 10. (1) Where an officer is satisfied that a person has contravened this by-law, the officer may make an order requiring the person who contravened the by- law or who caused or permitted the contravention or the owner or occupier of the land on which the contravention occurred to discontinue the contravening activity. (2) An order under this section shall set out, (a) reasonable particulars of the contravention adequate to identify the contravention and the location of the land on which the contravention occurred; and (b) the date by which there must be compliance with the order. i Nuisance By-law 2011-XXX Page 4 i 11. No person shall fail to comply with an order issued under this by-law. Obstruction 12. No person shall hinder or obstruct, or attempt to hinder or obstruct, an officer who is exercising a power or performing a duty under this by-law. Offence and Penalty 13. Every person who contravenes any provision of this by-law guilty of an offence and upon conviction is liable to a fine pursuant to the provisions of the Provincial Offences Act, R.S.O. 1990, c. P.33. Part 3- GENERAL PROVISIONS Conflict 14. If there is a conflict between a provision of this by-law and a provision of any other Municipal by-law, the provision that establishes the higher standard to protect the health and safety of the public and to maintain clean and tidy condition on land shall apply. Short Title 15. The short title of this by-law is the "Nuisance By-law". Effective Date 16. This by-law shall be effective on the date of its passing. By-law approved this _day of November, 2011. Mayor Adrian Foster Patti L Barrie Municipal Clerk i