Markham's new Public Nuisances By-law is open to abuse

2018年5月29日,万锦市议会通过了“公共场合行为规定(2018-55)”。该规定是对市府条例第14条的补充。条例对公共场合的不当行为,拥有第二套房屋单元,短期房屋租赁(Airbnbs)和拥有多个房间的出租房做了相关定义和规定。这一规定获得通过,只有万锦市第3选区的议员Karen Rea和约克区议员Nirmala Armstrong对这一补充规定投了反对票。

On May 29, 2018 Markham City Council passed a “Public Nuisance By-law (2018-55)” as part of an omnibus 14 section by-law that included provisions on nuisances, secondary suites, short-term rentals (Airbnbs) and rooming houses. The package passed with the only oppositions coming from Ward#3 Councillor Karen Rea and Regional Councillor Nirmala Armstrong.


The By-law came into force and effect once it was passed but one would have trouble locating it on the City's web site even as of now. The nuisance by-law was created to support the enforcement of noise control and other issues arising from a few short-term rental incidents.


Within the by-law, definition of nuisances, enforcement of control by City Officials using Work Orders, and collection of penalties are stipulated. Many residents found the words in this by-law to be ambiguous and subject to abuse by those who want to take advantage of it.
To start with, the definition of “Public Nuisance” under by-law 2018-55 is all encompassing. It is defined as :


Any activity on Property within the municipality which results in any conduct that is likely to be unwanted or disturbing to persons, or that may cause an unsafe environment, or affect the well-being of persons or the enjoyment of Property.


A list of activities is identified which include public drunkenness, use of abusive language, fights, vandalism and graffiti painting, improper parking, public urination and defecation, unlawful open burning, unlawful discharge of fireworks, and littering. Most of these activities are normally handled by the police! Does that mean the City is going to add another layer of law enforcement to the system?


While the above activities are described in general terms and easily understood by most residents, there are some more activities specially tied to the wording “likely to be unwanted by or disturbing to persons”. This association of the activities to “persons” open up all kinds of wild possibilities for abuses.


The definition of “Persons” above covers an individual, association, organization, partnership, corporation, and includes not just the owners but all other stakeholders of the Property. In other words, neighbours can make a determination that the activities are “offensive” to them and they may not even necessarily be a law-breaking event. Let us look at these activities:“


1) Sound or noise that is unreasonable or excessive, including but not limited to loud music. There are no references to hours of the day or measurable noise levels. As long as your neighbour feels that you are disturbing him/her, the by-law officer can be called in to charge you with a fine. Not only that, the officer can enter onto your property for investigation purposes.


2)  Loitering! Obviously not on someone's property but if people are walking up and down the sidewalk within your sight, you or your neighbour can now call in the by-law officer.


3) Any smoke that is excessive. In this scenario, it can be you have a barbecue in your backyard and the nice aroma and smoke drifting onto your neighbour's property are unwanted and disturbing to them. It can also be smoke and smell from the cigarettes or marijuana when their smoking becomes legal in October.


4) Any social gathering that may or may not result in any activities identified under the by-law. Let’s say that you have a religious wedding reception in your backyard and your neighbours find that “disturbing” due to their religion affiliations or gender preference, they can theoretically call the by-law officer to discontinue the “nuisance” and have all those who are not residing on the property to leave.

The language within this by-law is either deliberately left to the imagination or purposely authored to allow for extreme interpretations by the users. Either way, it is opening up itself to challenges in court. How this got passed by City Council show us the need to reign in the city staff and have a more attentive slate of Councillors to run this City.

We have a chance to effect the change of Council members soon. On October 22, 2018 make sure you participate in the voting for the municipal elections!


我们鼓励所有读者在我们的文章和博客上分享意见。We are committed to maintaining a lively but civil forum for discussion, so we ask you to avoid personal attacks, and please keep your comments relevant and respectful. Visit the FAQ page for more information.