It is a situation playing out in many municipalities, well meaning groups serving the homeless who are struggling to obey COVID gathering restrictions.

In Oshawa, a group providing sandwiches to the homeless posted on Facebook they were facing bylaw enforcement. A City Councillor quickly jumped in, and wrote the City’s Director of Municipal By-Law enforcement asking if this were true, for the Director to explain if it were true, and for the Director to cease enforcement until “a full report is presented to members of Council and we as the elected Council have had the opportunity to debate and decide on any further course of action”.

A complaint was made to Oshawa’s Integrity Commissioner, Guy Giorno, that directing staff violated the Code of Conduct.

Giorno, in a well written report, finds that the Councillor did use his office to try to influence enforcement and that this is a violation of the Municipal Act, the Police Services Act, and the Code of Conduct for the City of Oshawa.

Giorno did not recommend a sanction writing:

“I accept that Councillor Nicholson was motivated by a desire to secure the continued provision of food and necessities to the homeless and people living in extreme poverty. Despite the gravity of interference in the independence of law enforcement, I accept that his contravention of section 15 was an error of judgment made in good faith.”

Giorno’s report will be foundational to future Integrity rulings across Ontario as it is very informative and educational on the rules regarding the separation between councils, councillors, and the day-to-day operations of a municipality. (The reference is Gobin v Nicholson, 2020 ONMIC 13 (CanLII))

A couple of key paragraphs:

  1.       Section 15 of the Police Services Act provides that a municipal council may appoint persons to enforce the by-laws of the municipality, and that municipal law enforcement officers are peace officers for the purpose of enforcing municipal by-laws.[8] While in the discharge of their duties, they are provincial offences officers.[9]

  2.       The jobs of law enforcement officers involve discretion. While law enforcement officers have a duty to enforce the law, they also have a duty to exercise their discretion, including the discretion to write or not to write a ticket, or to pursue or not to continue an investigation.[10] Police discretion (or, in this case, the discretion of municipal by-law officers) is not absolute,[11] but nonetheless is an essential element of the justice system.[12]

  3.       The independence of law enforcement officers underpins the rule of law.[13] Independence means that a law enforcement officer cannot be subject to political direction in deciding whether to lay a charge or whom to charge with an offence.[14]

  4.       The connection between municipal law enforcement officers’ discretion and their independence from Council Members was explained in this manner in a staff report to Toronto City Council:

    Once officers determine the permitted tools, they use their discretion to determine the tool that will achieve compliance most effectively. Officers consider the seriousness of the violation, the impact of the violation on public safety, the likelihood of the person to repeat the violation, and the impact of the enforcement activity on business and community in Toronto. The decision to take enforcement action must be free from bias and political interference.[15] [emphasis added]