Cramahe Twp. Council voted 3-2 in a recorded vote on February 14 to approve a fortification bylaw, despite what appeared to be a lack of understanding of how the bylaw will operate. The recorded vote was requested by Councillor Ed Van Egmond who wants it on the record who is responsible for the passing of what he considers to be an offensive and invasive bylaw.
The bylaw will allow police to enter any property in the township without a warrant. A search warrant will now only be required under this bylaw when police wish to search a dwelling where the resident refuses access.
Councillor Pat Westrope claimed there must be just cause before police would be allowed to enter a property. Deputy Mayor Jim Williams agreed and stated that police would need a search warrant for residences.
But the bylaw does not require a warrant for a property search or the search of any building other than a dwelling.
It is the interference with personal property rights that irritates Councillor Van Egmond. He is backed up in his concerns by the Ontario Landowners Association (OLA), a property rights group. Mr. Van Egmond says, "My property is my castle and if I want to, I'll build a moat."
A June, 2011 position paper produced by the OLA states that municiaplities will be in violation of the law if they "interfere with the chattel owner's possession or exclusive use of personal property".
The bylaw prohibits excessive fortification of property and makes it an offence to hinder or obstruct the enforcement of the bylaw. As of February 14 residents are not allowed to install or use perimeter warning devices which would forewarn them of intruders. Electrified fencing is also prohibited, including barriers on windows and doors. Any video equipment capable of viewing or listening beyond the perimeter of the land is barred.
Taken literally, the bylaw could be construed as barring gates which obstruct access to property. One critic of the bylaw suggests that the bylaw may even encourage crime in the township, as criminals may realize that video surveillance, laser entry warning devices and gates are not allowed.
Landowners can apply in writing to the twp Chief Building Official Natalie Moroz-Cornell for an exemption as long as they state the rationale for their request.
Mr. Williams, Ms. Westrope, and Councillor Clinton Breau voted in favour of the resolution but seemed unsure of its ramifications. All members of council were asked during press question period what the restrictions covered. There was open disagreement about what could be construed as a barrier and none seemed omfortable clarifying what could fall under the bylaw, except Councillor Ed Van Egmond.
Mr. Van Egmond and Mayor Marc Coombs opposed the motion.
Councillor Van Egmond questions the legitimacy of police enforcement and sees the potential for police to use the bylaw to go on “fishing trips”. He would like to see this type of legislation reviewed by the provincial and federal governments before is it enacted and wonders about the constitutionality of the bylaw which infringes on the Criminal Code of Canada. He says the Ontario government wants no part of this legislation. The councillor feels that there are laws in place to protect society from gangs and that this bylaw goes beyond the intent to protect. It restricts residents from buying commercial products and is open to interpretation. It is not clear in his mind what is covered by the bylaw. And he thinks it makes everyone guilty until proven innocent.
The uncertainty over interpretation was borne out in a conversation he had with fellow councillor Pat Westrope over the potential dangers of electric fences employed by farmers. Under the bylaw they would face prosecution unless they applied in writing for an exemption on the basis of need.
He claims that he asked for staff to get a legal opinion from the twp lawyer, Peter Hustler.
Cramahe CAO Christie Alexander says there is no need.
Deputy Clerk Candice Doiron sees it differently than Mr. Van Egmond. She says the question of legal advice came up in an open house held by the Cramahe Police Services Board. There was no motion to staff in a council meeting.
Clinton Breau feels that the Police Services Bard was asked to review the bylaw. It did, and brought it back to council
The proposal first came before council at the request of the Cramahe Police Services Board. Mayor Coombs says that, if the OPP had supported this type of legislation, he would have received a letter from them. He hasn't. The mayor says living off the avails of prostitution, and drug dealing aren't governed by municipal bylaw, why this? He see the bylaw as part of a slippery slope where rights are lost through the enforcement of the police and actions of government.
Deputy Mayor Williams doesn't agree. he's comfortable with the restrictions on surveillance equipment and their use only in buildings.
There appeared to be differences even among staff.
When Coombs was asked for an interpretation of “ authorizes and expects the Ontario Provincial Police will take an active role in the enforcement... “, he deferred to staff.
Moroz-Cornell was one of two stated staffers who submitted the bylaw (Doiron was the other) but said she did not write it. Doiron then stated that Moroz-Cornell had reviewed it, and the Chief Building Official denied she had. Finally the two were able to establish that Moroz-Cornell had reviewed the original draft.
Breau took a stab at the question, suggesting that the police would be taking “an active role” at the time.
In the council discussion Councillors Westrope and Van Egmond had the final words.
Ms. Westrope suggested he was over-reacting. Mr. Van Egmond responded that she wasn't recognising the implications.