COLEMAN: Politicians Must Stay Out of Bylaw Enforcement – TPR Hamilton | Hamilton's Civic Affairs News Site

October 16, 2023
Politicians create laws and bylaws. This is their role.
Enforcement of laws and bylaws is independent of politics. This is a fundamental principle of democracy.
The Mayor’s comments in the media the past two days regarding bylaw graffiti enforcement did not directly violate this principle.
Mayor Horwath responded to a reporter’s questions about a property standards order issued to The Hub by stating she wished bylaw would apply their enforcement efforts to other properties.
With Hamilton about to have an independent Integrity Commissioner beginning on November 1, this is a good opportunity to explain why most Ontario municipal integrity commissioners enforce a strict code of conduct when politicians comment about bylaw enforcement.
This is especially true when bylaw officers are enforcing provincial or municipal council policies.
A few weeks ago, City Council unanimously passed a series of measures to address graffiti in the Downtown Core, including a new grant to assist property owners with the cost of graffiti removal.
“Through grants such as these, we can help business owners in the heart of the city who’ve experienced vandalism and graffiti keep their businesses clean and thriving. With a focus on enhanced cleaning service levels and safety, this is one of the ways in which we can demonstrate that our local businesses matter and that their success is critical to our local economy and tourism sector,” Mayor Andrea Horwath stated on September 13, 2023.
Council added funding to the city’s bylaw budget to increase property standards enforcement. This followed adding more litter collection crews and increasing public garbage bin collection in the Downtown.
In short, the City’s bylaw enforcement officers are implementing Council policy direction.
Two weeks ago, bylaw ordered a well-regarded non-profit, The Hub, to remove graffiti on its building at 78 Vine Street.
The Hub’s Executive Director, Jennifer Bonner, was angry with the order and took to social media to express displeasure.
Bonner correctly notes the graffiti has been on the Vine Street building for years, that the City is not following its own property standards and failing to maintain the public right-0f-way, and that removing graffiti is an added cost for the non-profit.
A reporter picked it up as a story, framed it as unfair, and contacted the Mayor’s Office for comment about what they determined to be a bad decision by the City.
In this context, the Mayor told the reporter the City should focus its enforcement efforts elsewhere.
Following the media action, bylaw managers now state they regret their decision to enforce, and the City will assist The Hub to access the new graffiti removal grant.
The decision of bylaw managers to express regret for following policy, in an article where the Mayor is quoted as being critical of a specific enforcement decision, could gain the attention of Hamilton’s new independent Integrity Commissioner.
This is a teachable moment, especially because Council members will be held to the Code of Conduct by the new IC.
Integrity Commissioner Guy Giorno wrote an extensive explanation of the rules governing municipal politicians’ commenting upon bylaw enforcement.
In 2021, dealing with a somewhat situation – enforcement of rules upon an organization serving the homeless during COVID gathering restrictions – Giorno issued a formal caution to an Oshawa councillor.
The councillor wrote to the director of bylaw asking them to cease enforcement of COVID gathering restrictions for groups providing food to the homeless.
Giorno wrote the councillor’s email constituted an attempt to influence enforcement and in doing so, the councillor violated the Police Services Act and the Municipal Act.
The full 119-paragraph ruling is here: Gobin v Nicholson, 2020 ONMIC 13 (CanLII)
I wish to highlight a couple of key paragraphs:
. Doing so can create the appearance of bias, particularly if council later hears an appeal on the same matter after bylaw enforcement action is taken. Moreover, any action by a council member that is motivated by favouritism or personal animosity toward an individual may be perceived as an improper use of discretion. .[16] [emphasis added]