What's a nuisance? Maybe you are. Here's your ticket, pay at the counter.
A nuisance is "a person or thing that causes annoyance or bother," say several online dictionaries. That could be almost any of us at some time. It could be all of council, most of the time, according to some people. Some definitions add the phrase, "injurious to the community at large" to the list.
As of last night, it's against the law to be a nuisance in Collingwood. Well, at least on a town sidewalk. I suppose you could still legally be a nuisance on private property or on the street.
The bylaw was really put in place to ban panhandlers from the downtown, where, we heard, the very small number of them had become harassing and even intimidating to some pedestrians, and annoying to shopkeepers. The proposed bylaw (2010-52) stated, "No person shall solicit funds on any Town sidewalk or other Town pedestrian-way, or portion thereof unless authorized by the Town."
While I felt that the a bylaw to control three, perhaps at most five, people (no one on staff could actually say how many there were) was swatting mosquitoes with a sledgehammer, I could accept the clause because the BIA has expressed concerns about these panhandlers affecting both business and the image of the downtown. But as far as I can tell, all we've done is moved them to private property or to the streets. The bylaw doesn't prohibit panhandlers from parking lots, alleyways, streets or private property, which gives them some scope to relocate.
The bylaw also says "No person shall block, interfere with or otherwise impede the passage of any pedestrian on any Town sidewalk or other Town pedestrian-way, or portion thereof unless authorized by the Town."
While that sounds logical and fair, I get a little uncomfortable thinking it might be used for crowd control in ways that have a distinctly authoritarian taint. Comes, I suppose, from growing up in the era of civil rights protests and the anti-war protests of the 60s. But I don't like laws that give anyone broad control that could infringe civil liberties.
And, it says, "No person shall obstruct, hinder or otherwise interfere with an Officer of the Town while carrying out an investigation, making inquiries, or performing an inspection for the purposes of enforcing this By-law." Okay, I can accept that.
But I didn't like the provisions for "nuisance" that were also included. Or rather, weren't included. The bylaw doesn't define nuisance at all, merely says, "...a local 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."
Council defining nuisance? That worries me. To me, that allows way too much leeway for arbitrary decisions. Do you think this council, for example, is capable of making fair and unbiased decisions about who or what is obnoxious, bothersome or annoying to everyone? Neither do I. However, the phrase is lifted right from the Municipal Act.
The Ministry of Municipal Affairs and Housing* also warns that "Council's opinion regarding a nuisance, if arrived at in good faith, is not subject to review by any court." What is "good faith"? It's not defined either. I'm not sure the developers of the Admiral Collingwood building or The Strand would think there's a lot of "good faith" to be found in this council.
In theory, as the ministry says, the bylaws are supposed to regulate "adverse effects on the local environment or on people's enjoyment of their property." But I worry they could easily be used to enforce authoritarian standards or controls or simply someone's personal standards of behaviour on public property.
Earlier this year, a councillor in Ottawa proposed nuisance bylaw amendments that controlled "boisterous" crowds and "indecent" language in the tourist-and-student dense Byward Market district. The amendment would make it an offence, punishable by a $300 fine, to "engage in loud, boisterous, threatening, abusive, insulting or indecent language" or "become a nuisance to the general public using the highway or to adjacent property owners." The highway, in this case, includes public roads and sidewalks.
Jasna Jennings, executive director of the market's business association, said "It's really for the benefit of everyone. If you behave, you have nothing to worry about."
Be good or you won't be allowed to play on our streets. Well, those proposed amendments generated a lot of protest and even threats of legal challenges. A lot of the uproar was over who would defines "boisterous" and "indecent." Back when I was growing up, saying "bloody" and "damn" was indecent enough to earn me a sound smack on the ear from my Dad. Today they're considered too mild to even comment on. In the era of gangsta rap, and readily available online pornography, who will define "indecent" today?
Many Ontario municipalities have nuisance bylaws. Most of them have specific clauses or definitions as to what they control or address. The City of London's bylaw says, "No person shall urinate or defecate in a Public Place." Well, that would be a nuisance, no argument there.
It also says, "No person shall knock over or attempt to knock over a Canada Post mailbox, Canada Post relay box, newspaper box, Blue Box, or garbage container, lawfully located on a Highway. This section shall not apply to City employees, or any person under contract with the City, acting under the City's Waste Management By-law." Which is a bit odd, first making me think such petty vandalism must have been a serious problem there, but also makes me imagine gangs of unruly city employees roaming the streets legally knocking over mail boxes.
Anyway, that's it as far as nuisances in London goes. Defecating, urinating and knocking over mail boxes. Pretty clear as to what it controls.
In Cambridge, nuisance is focused on people littering or taking material from garbage bins, including "fouling" of property. Cambridge also prohibits blocking sidewalks Again it's clear.
In Waterloo, that same scary phrase about council's opinion surfaces. While the Waterloo bylaw is very similar to the previous two - prohibiting littering and "fouling" - it also has a definition of nuisance as "any action or activity that is annoying, unpleasant or obnoxious." That's way too vague and open to interpretation - and abuse - for my liking.
What's annoying? Who defines unpleasant? Is slurping coffee loudly annoying? To some folks it is. Smoking is obnoxious to a lot of people. So is swearing. Does Waterloo round these people up off their streets and shuffle them off to jail? Or just give them tickets?
Homie-style clothes with low crotches and backwards baseball caps are seriously unpleasant, not to mention clownish. I can see the water cannons being prepared to control the crowds of kids around the high school now... oh wait, the bylaw doesn't define nuisance as silly, just unpleasant. Well, keep them prepped in case they spit. Then we can hose them...
Barrie has a serious nuisance bylaw that prohibits littering, fouling, blocking passage, selling things, busking, donating or giving away items and riding bicycles and skateboards on town sidewalks or public property. No busking? Seems pretty mean-spirited from my perspective, but at least the bylaw is very clear as to its intent and what it is meant to control.
Mississauga declared "declare signs and advertising devices illegally placed on public road allowances in the City as matters of public
nuisances" and delegate residents the authority to remove them. That's a pretty specific clause for what a nuisance is (I suspect they have others).
Best of all, to my mind, is Vaughan's bylaw which defines nuisance as:
Nuisance" includes shouting, screaming ,unusual noises, ringing of bells, sounding of horns, blowing of whistles, squealing of tires, revving of engines, the idling of vehicles longer than five (5) minutes; the playing of music or any other noise that disturbs or is likely to disturb persons or the occupants of a dwelling; the use or display of placards, play bills, posters on public land other than at a permitted event: the display or use of posters, placards, drawings or the writing of words which are offensive on public land, buildings or structures; expectorating, urinating or defecating in any public place or highway other than a washroom facility; obstructing the passage of pedestrians on a walkway or highway in a public place rendering passage impassable or difficult; the creation of discomfort, disturbance or confusion for pedestrians or the occupants of a dwelling or to passing motorists; loitering in a public place after being instructed to move by a peace officer; loitering, remaining in or refusing to leave a public building after it is closed and/ or when ordered to do so by a peace officer; the use of offensive language or gestures; the harassment or the intimidation of another person or persons on public lands or in public facilities; willfully causing damage to public property; the use of a public facility or public lands for other than their lawful intended use; soliciting for illegal activities; the carrying of open liquor on public lands or in a public building.
You don't have to agree with all those definitions, or like them, but there's certainly no question in Vaughan as to what constitutes a nuisance. I liked the clause about causing "confusion for pedestrians." Does that include giving muddled directions?
Collingwood's nuisance bylaw, in contrast, says nothing. It is far too vague for my liking, and thus open to subjective - and potentially oppressive - interpretation. **
I wanted the bylaw deferred so that a more formal definition of the word "nuisance" was included that would not only define the behaviours we want to control or prohibit, but also limit the powers of the bylaw officers to arbitrarily determine what is or is not allowed or prohibited.
As noted in the Enterprise-Bulletin story:
Clerk Sara Almas said enforcement of the bylaw - and determining what may be a 'nuisance' - would be left to the discretion of the bylaw officer.
No disrespect to the bylaw officers, but it's not their role to determine the scope of the law or to interpret the definitions. They are hired to enforce the law. Council's role to to create the laws. With something this vague, we open a can of worms as to what defines nuisance and who makes that interpretation.
My request for a deferral to get that definition inserted got no support.
From my conversations with residents as councillor these past six-and-a-half-years, there are those in town who would use the bylaw to chase the kids from the street. There have been discussions about loitering an curfew bylaws. This nuisance bylaw could be used in their stead. If a group of young people are hanging around in front of a coffee shop downtown, does that constitute a nuisance or the enjoyment of a public place?
A good bylaw should have a clear definition of what constitutes "nuisance" - perhaps based on noise, on specific types of activity like spitting, littering or riding a bicycle on a sidewalk.*** I think it's council's responsibility to ensure our bylaws are clear, enforceable and not open to broad interpretation (which could create loopholes or legal challenges).
However, I was the only one at the table who voted for the deferral (and thus against the bylaw). Seems the rest of council is happy without a clear definition. That, of course, shouldn't surprise me since as a council we've been pretty vague about many of our initiatives and directions to date.
* MMAH - an acronym that Councillor Foley said he was unaware of, last night. Which really turned a few heads, given how many years he's been on council.
** If it were up so some members of council, any signs not painted in the sombre heritage colours would be classified as a nuisance. Anyone drinking from a plastic water bottle would be a nuisance. Anyone wearing faux Elvis gear would be a nuisance. Anyone not practicing reverse-angle parking would be a nuisance... I'm sure some members of council - the mayor in particular - would consider local bloggers (including me) a nuisance. I'm waiting for the amendment to the bylaw to prohibit blogging within town limits... To paraphrase Pastor Martin Niemöller, "First they for the skateboarders, and I didn't speak up because I wasn't a skateboarder. Then they came for the panhandlers, and I didn't speak up because I wasn't a panhandler. Then they came for the Elvis impersonators, and I didn't speak up because I wasn't an Elvis impersonator. Then they came for the bloggers and by that time no one was left to speak up."
*** Collingwood already has a bylaw that prohibits riding bicycles and skateboards on sidewalks, but given the number of people I see doing just that downtown every day, I'd suggest it's about as effective as our pointless cat bylaw. It certainly doesn't seem to be enforced to any significant degree.
NB. I found this definition of nuisance online at Duhaime.org:
A person's enjoyment of their property ends when they interfere with their neighbours. A simple concept but as elsewhere in the law, an area where legal theory rules the deep-water of its seas. "Nuisance" is the pretty little word the law uses to capture that area of tort law concerned with the interference of other people's property by one's own things.
Well, that's fine for private property (and relevant to Burlington's nuisance bylaw), but our law is for public property.