When will enforcement start?

failure-1

The Municipal Trees and Natural Areas Protection Bylaw 2006-279 has been in place for 8 years. When the Champlain Oaks Project started in late 2010 we were told by the City’s Forestry Services that this and the Urban Tree Conservation Bylaw 2009-200 were primarly educational tools. Enforcement would come later, once property owners and contractors were aware of the By-laws and understood their intent and value. It is time to recognize that the strategy has been a failure. The photo from today of two City street trees (public property) down the street from my house is a graphic illustration. Despite the clear requirements of the Municipal Trees and Natural Areas Protection Bylaw to have written approval from the City prior to commencing work around a City tree (section 7.1) and to agree in writing to conditions (protective fencing; keeping construction materials away from the tree, etc.), the trees have been treated as a dumping ground for boulders and dirt that is likely to sit there for weeks. Damage to the bark has already occured. The trees (lindens) are about 65 years old, mature by this species’ standard but still healthy enough to grace the street for years if not stressed into pre-mature death.

In this case, the contractor (a young woman) claims to not be aware of the bylaw, or that her actions might damage the trees. I’m not sure if the property owner knows a violation of the Bylaw is underway. My call to 311 to report the situation confuses the service provider so much it becomes clear she is not aware of the Bylaw or how to report the complaint.

It is time Forestry Services reported to Council and to the public on implementation of these two By-laws, and on the gaps in its strategy to educate and enforce them. The new Council must demand such a report, and follow up until the Bylaw does what it is supposed to do.

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4 Responses

  1. Katherine
    Katherine February 20, 2015 at 9:00 am | | Reply

    I would hope that the City gets organized enough to be able to take complaints like this and act on them. I know that the RVCA depends on information from the public to help them enforce by-laws that affect our waterways.

    Would it work to send an email directly to the Forestry Department also?

    I hope something changes soon!

  2. John Dunn
    John Dunn March 31, 2015 at 1:21 am | | Reply

    I don’t know if you know this but you don’t even have to call the City. Many by-laws which create offences, create a provincial offence meaning that you personally can take action and lay an information (charge) directly to a Justice of the Peace at the Ontario Provincial Court (Near Algonquin College) at Baseline Station. (The Tall City Building down the path with the City Logo beside the Theatre)

    Section 1 of the Provincial Offences Act defines the following:
    “offence” means an offence under an Act of the Legislature or under a regulation or by-law made under the authority of an Act of the Legislature; (“infraction”)

    (This means, that a by-law can create an “offence” under the Provincial Offences Act (POA) which means you can use the POA and it’s sections to “enforce” a by-law.

    “prosecutor” means the Attorney General or, where the Attorney General does not intervene, means the person who issues a certificate or lays an information and includes an agent acting on behalf of either of them; (“poursuivant”)

    (This means that usually POA offences are initiated and pursued by the Attorney General (actually done by, or delegated to Crown Attorneys … ‘The Crown’)… then it says.. where the Attorney General does not intervene… meaning if the Crown does not pursue the charge, (by issuing a certificate, or laying an information) then it means the person who lays the information becomes the “prosecutor”. That means YOU! 🙂

    Now moving on to the good part (Section 23 of the POA) See the section below

    23. (1) Any person who, on reasonable and probable grounds, believes that one or more persons have committed an offence, may lay an information in the prescribed form and under oath before a justice alleging the offence and the justice shall receive the information. R.S.O. 1990, c. P.33, s. 23 (1).

    Section 23, Subsection (1) above actually shows or instructs that if you have reasonable and probable grounds (both reasonable and probable) to believe that someone (or more than one person) has committed an offence (violated a by-law) you can be the person who goes and tells a Justice of the Peace (not a Judge) at their desk in a private office, at the Provincial Offences Court near Algonquin College … that you believe an offence has been committed under article number X of by-law (name here). You do so by “laying an information” which just means you fill out the charging form (the prescribed form) called an “Information” or an “Information Form”, and bring your evidence or photos etc. and copies of the by-law or the section of the by-law that creates the offence into the Justice of the Peace so that you can explain the offence, show the law, and evidence, they will voice record you as you “lay the information”. The Justice of the Peace SHALL (must) at least hear you out and record your “Information” and you swearing that you are being truthful etc. Now to the part that tells the Justice of the Peace (Justice) what to do once you have laid the information (given the Information form to the Justice and swore and told your story, and presented your evidence in their office at a desk)

    24. (1) A justice who receives an information laid under section 23 shall consider the information and, where he or she considers it desirable to do so, hear and consider in the absence of the defendant the allegations of the informant and the evidence of witnesses and,

    (a) where he or she considers that a case for so doing is made out,
    (ii) issue a summons

    This just means that once the Justice of the Peace has received the “Information” form or the charging document, they must then hear you out and recorded it all.. and review your evidence and that of any witneses you bring (photos, records/documents or people etc.) the Justice SHALL (aka MUST) consider the information and, if the justice considers that you have a case, shall issue a summons (another document to be served upon the offender(s)) according to the other sections of the POA which govern and direct how that is to be done etc.

    So hopefully all this helps you realize that YOU can press charges directly anytime you see someone violating a by-law, especially if you call by-law and they don’t do anything about it.

    Once you have done this, it is possible that the Crown Attorney will take over the case, or the Crown can intervene and “Stay” or kill the charges basically… or not intervene at all and allow you to proceed with the charges.

    Hope this helps. Feel free to contact me. 613-709-3866 if you need any info on this procedure. I am not a lawyer, I have just conducted a private prosecution myself from start to finish so know the process.

  3. Erwin Dreessen
    Erwin Dreessen March 31, 2015 at 3:53 pm | | Reply

    Very interesting, John. How does one determine whether the tree protection by-laws (##s 2009-200 – Urban Trees Conservation By-law; and 2006-279 – the one Daniel referenced) create a Provincial offence?

    1. John Dunn
      John Dunn September 22, 2015 at 12:39 pm | | Reply

      Just if you open the bylaw and do a ctrl-f search on the browser page for the various instances of the word “offence” and you will see them if they exist. There are specific offences and then there may be general ones which would say something like … Anyone who contravenes any provision of this bylaw is guilty of an offence and may be liable to pay a fine of….or sentenced to x years in prison or both”

      The general one above means you could charge any person with violating any line of the bylaw.

      But more specific offences would say something like…”Anyone who contravenes section 34 of the bylaw is guilty of an offence is guilty of an offence May be liable to pay $5000.00 …etc

Please comment with your real name using good manners.

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