Thou shall not have large picnics: One Ontario family’s run-in with the bylaw cops

For the past ten years, my family and I have been organizing the annual Liberty Summer Seminar on my parent’s property in the municipality of Clarington, Ontario.

The Liberty Summer Seminar is an event that brings young people together to discuss and celebrate Canada’s history and tradition of liberty. It is a two-day, outdoor event with seven speakers, a barbecue, and a concert featuring Toronto’s Lindy Vopnfjord. It has a summer camp feel, which is why some of us refer to it as “LibertyStock.”

This past year, after our ten-year anniversary, my mom and dad were charged with running a “commercial conference centre” on land zoned Agricultural by the Clarington bylaw department.

The event is a non-profit event, hosted by the Institute for Liberal Studies, a registered charity. My mom and dad faced a possible fine of up to $25,000 each, for letting me, their son, host an event that promotes Canada’s founding values of civil, political and economic freedoms — the values that motivated my parents to escape to Canada from Communist Poland in 1984.

The legal fees, and the frightening prospect of not only being fined $50,000, but the possibility of having to cancel the Liberty Summer Seminar after celebrating the ten-year anniversary, was devastating.

Few people think about what it’s like to be paid a visit from a bylaw officer. Unlike with real police officers, there is no complaints procedure against bylaw officers. In Ontario, the Office of the Independent Police Review Director will field your complaints against rude, disrespectful, or aggressive police officers. They will pursue an investigation if necessary. There is a procedure for keeping police officers accountable. There is no such procedure for keeping bylaw officers accountable.

The power of bylaw is extraordinary, and, in a free country like Canada, unacceptable.

In our case, the bylaw officer in charge of fielding complaints against my mom and dad was aggressive and threatening. My mother lost 20 pounds and was prescribed anti-depression pills because of his behaviour. Sun columnist, Ezra Levant, called that bylaw officer for a column about our situation and described his interaction with the bylaw officer on his blog as “embarrassing; enraging; frightening.” The bylaw officer was “on a mission”, “boasting” about what he’d done to my mom, and what he still planned to do (take my mother’s bed and breakfast sign because he thinks it might be on city property).

My parents went to a meeting with city officials to talk about the situation. I was on the phone with them. I asked then-mayor, Jim Abernathy, if he could please put another bylaw officer in charge of our case, because my mother was frightened of the one currently assigned to this matter. His response? “We’re not going to talk about that.” I say “then-mayor” because Abernathy did not win his bid for re-election. Adrian Foster won. His platform included a promise to encourage and promote events like the Liberty Summer Seminar and neighbourhood street parties that “foster community.”

Without some sort of accountability, there really is no check on bylaw officers. They can do more or less as they please, and harass property owners without fear of losing their job, or being reprimanded. A proper complaints procedure would help landowners who are dealing with an aggressive bylaw officer, but so would proper property rights protection in the Charter of Rights and Freedoms. We did not have recourse to a Charter-guaranteed private property protection.

In December, 2010, the Canadian Constitution Foundation chose to represent us to defend our right to host this seminar. Karen Selick, our lawyer, argued, amongst other arguments, that the Charter of Rights and Freedoms protects our right to host an event like this under Freedom of Peaceful Assembly. The Municipality’s lawyers agreed with the Canadian Constitution Foundation’s arguments, finally dropping the charges against my mom and dad, and clearing the way for the 11th annual Liberty Summer Seminar (which is in the planning stages right now, and will be hosted over the August 6, 7 weekend).

But my parents should never have been charged in the first place. For nine months, my family lived under a cloud of uncertainty about what we are and are not permitted to do on our own property. Entrenching property rights protection in the Charter would have acted as a bulwark against an overzealous bylaw department. If we had entrenched property rights, my parents would likely have never had to deal with the expense, anxiety, and heartache associated with being fined for hosting an event on their own property to celebrate freedom.

Our story is neither unusual nor uncommon in Ontario. Property owners all across Ontario, especially farmers and homeowners in rural Ontario, are facing crippling fines and excessive regulations with no compensation for the lost use and enjoyment of their property.

Bob Mackie, for example, had his archery business shut down by the Niagara Escarpment Commission, and has to pay $15,000 in fines. George Eng, a peat farmer, is facing a fine of $10,000 or three months in jail for digging up peat on his own property. More recently, I had a conversation with a business owner who bought land for development, when a rare snake was found on his property. Now he can’t develop the land, and his investment has turned into a pure loss — there is no requirement that the government compensate him for what is effectively a taking.

Member of Parliament Scott Reid and Member of Provincial Parliament Randy Hillier were both aware of what my family, and countless others, have had to go through. Both of them have attended the Liberty Summer Seminar in the past, and both of them did what they could to help my family navigate through our legal ordeal. After the charges were dropped against my family, Reid and Hillier decided to put forward an amendment which would enshrine property rights protection in the Charter.

Importantly, the effort is making use of the section 43 amendment formula, which allows individual provinces to amend the Charter without affecting other provinces. A section 43 amendment requires passage in the provincial Parliament. It does not require the 7/50 amendment formula to amend the Constitution (seven provinces comprising at least 50 per cent of the Canadian population), making it more likely to pass. The amendment, if it’s successful, could be copied by other provinces.

Motion M-646 in the Ontario Legislature, reads:

That, in the opinion of this House, the Canadian Charter of Rights and Freedoms should be amended to enshrine property rights for Ontarians, as follows:–

1. The following section is inserted after section 7:

7.1 (1) In Ontario, everyone has the right not to be deprived, by any Act of the Legislative Assembly or by any action taken under authority of an Act of the Legislative Assembly, of the title, use, or enjoyment of real property or of any right attached to real property, or of any improvement made to or upon real property, unless made whole by means of full, just and timely financial compensation.

(2) Subsection (1) refers to any Act of the Legislative Assembly made before or after the coming into force of this section.

2. This Amendment may be cited as the Constitution Amendment, 2011 (No Expropriation in Ontario without Compensation), and reference to the Constitution Act, 1867 to 1982 shall be deemed to include a reference to the Constitution Amendment, 2011 (No Expropriation in Ontario without Compensation).

Entrenched property rights would help ensure that Canadians have a defense against powerful governments in safeguarding their freedom and liberty. A Charter guarantee of property protection would help to prevent such encroachments into freedom and liberty as my family has endured. Property protection in the Charter would not undermine the legitimate functions of municipal governments, but it would constitute a check on some of the more egregious activities of bylaws.

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