Ignorance is Bliss?
Ron Bolin, April 12, 2011
The email exchange below has led me to some pretty scary contemplation of the slippery legal slope on which we are all so delicately balanced:
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Hi Ron,
Yes you heard correctly. The City has no obligation to enforce its bylaws.
This is true even if the City is aware of an infraction.
Failure to enforce a bylaw has no implication (in law at least) to any future enforcement ability.
Al
From: Ron Bolin [mailto:rlbolin@telus.net]
Sent: March 24, 2011 1:36 PM
To: Al Kenning
Subject: Question
Good afternoon Al:
I am trying to remember something that you said to Council at the end of either a Council Meeting or a Public Hearing. If memory serves, in speaking to Council on the matter of bylaws, you noted that the city was not obliged to enforce its bylaws. Did I hear correctly and if so, could you explain?
Thanks,
Ron
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Naïve as I apparently am, Mr. Kenning’s response set me back on my heels. I suppose that I have not given sufficient attention to what it is that really makes the world go around. Further contemplation, analysis, comparison and research, has set me mostly straight and certainly given me cause for alarm.
This question came to light some months ago when it was noted in a FPCOW meeting that, despite complaints about some signs in town which contravened the Sign Bylaw, Council had advised Staff to ignore those complaints. This stimulated my interest in this topic and began a process which eventually led to my request from Mr. Kenning.
My reaction to his response was to start to ask myself how this could be. I first got as far as the complaint process. It became evident why most bylaws depend on the complaint process rather than the active pursuit of infractions. It is a bit like the old question of whether, if a tree falls in the forest and no one is there to hear it, did it make a sound? If an infraction occurred and nobody complained, was a crime committed? If, for example, I was robbed, but for whatever reason make no complaint, was a crime committed? And from a panel of judges: If an 85 year old great grandmother with no criminal record is held by a store for shoplifting and the police officer at the scene in the light of the situation lets her go with a stern warning, was a crime committed?
In this context is it only when the governing body, in this case the City, is itself offended by, for example, the non-payment of taxes or some other such infraction which affects itself that it becomes a complainant on its own behalf, but feels no compulsion to act on infractions affecting its citizens, even on complaint? Are the complaints of citizens of lesser significance and can thus be ignored, even if they do complain? The answer seems to be yes.
As Saturday, April 9 was Law Day, the celebration of which included a Q&A opportunity with a panel of judges, I took the opportunity to raise the question with them. They concurred with Mr. Kenning’s response. Upon reflection, I suppose that given free will, there is no other answer possible. But what is it them than separates a law abiding society from one in which chaos, usually guided by unchecked personal interests, prevails? We say we are a nation of laws, but so are all of the third world countries in which I have lived. In some one can find just as much justice as he or she can afford. The difference is in the hearing. The tree may fall; the crime may occur; but if the forest of citizens either doesn’t hear or doesn’t follow up on those vibrations, there is no sound and no crime. Think about it. Think about how small is the difference between the society we enjoy and anarchy.
A further interesting example can be found in a clause included in a student housing agreement which the city recently approved:
“The parties agree that the City is not obligated to inspect the Lands or to otherwise
ensure compliance with this Agreement, nor is the City obligated to remedy any default
of this Agreement. A failure by the City to enforce this Agreement shall not constitute a
waiver of any of the City’s rights hereunder.”
Nudge, nudge, wink, wink….
Remember that phrase from Animal House: “All animals are equal, but some animals are more equal than others.” Consider what happens when the notion of justice is overwhelmed by the law and those who generate and administer it. Do your homework and get out and VOTE. Your representatives at all levels not only make the rules, they can also choose to ignore them at your peril.
Posts and Comments on Nanaimo Governance 
This is funny on a number of fronts. Before I ramble though I must comment that you, dear sir must have much more free time than most but by which has served you well since it allows for a great uncovering, in plain english, I might add, of items such as this.
Now, one could argue that this nothing more than the squeaky gears, a bottle of grease and even in some cases greed. But whether you agree or not with that it is always about public perception. These individuals running the show, using tax dollars and making silly rules with in some cases sometimes more silly answers really can make your head spin. Whether anyone heard the tree in the forest or not is really somewhat mute because depending on whom heard it, what their “pull or influence” with those in power might be and where the actual incident may have occurred is generally what results in the “infraction”. Simply put we’d be even more broke if every difference of opinion, tied to a bylaw, was ever examined, inspected or otherwise with the amount of time that is “wasted” in such matters.
Think about, your neighbour doesn’t like the colour of your fence and some how believes that there is an infraction there – off the boys go in their truck to inspect, take photo’s write up tickets or whatever is deemed applicable in this particular case. The 2 land owner bicker more and more and it is finally brought to chambers for discussion. The amount of hours that would have been expended to get there would have put that simple disagreement in tune with likely a few $10’s of thousands when you consider billable hours, charge out rates, pensions, mileage and even legal council… EEK!
Still funny nonetheless…
Cheers,
If you believe that my point was to suggest that every infraction deserves a trial, I’m afraid that I did not make myself clear. Rather I wanted to ask the question concerning when a society like ours turns into a society like theirs. It is a slippery slope open, as you suggest, to considerable misuse, for whatever reason. Perhaps we should not pass silly (by)laws that we have no intention of enforcing and perhaps we are correct to ignore some of them? But which ones? For who? Perhaps citizens deserve transparency. All I know is that it is not the laws that protect our freedoms, but the extent to which we allow our leaders and ourselves to ignore them.
Ron;
It is not laws, nor their enforcement that is needed but rather a change in the heart. Alas, no law can accomplish that.
The residents of area A of the RDN have recently completed their OCP.
Throughout the last 18 months the OCP committee have committed themselves to coming to terms with what they the residents thought best for the area.
A long standing issue put to the committee was the industrialisation of the Nanaimo airport lands without the BC environmental statutes being enforced.
After a challenge by West Coast Environmental Law the RDN finally admitted that BC Provincial law(through the RDN)would be applicable to the airport lands on non aviation matters.
None the less the RDN through it’s elected & none elected officials decided ,in camera, to ignore this legal challenge & without the approval of the Committee enter into a off the books agreement with the NAC for an ‘accord’ of agreement upon the land use of the airport.
We do indeed have laws & laws.
Laws often depend upon the ability to challenge or resist them.
The same laws also rely upon the apathy of those that would object to them or the financial inabilty of others to challenge them.
Ron:
A quick response for now … You may recall that Nanaimo’s former Mayor,(Korpan), wrote the following response to a Nanaimo resident back in July, 2007:
[begin quote] “In municipal govt, a Council policy, resolution, guideline, etc. (anything short of an actual adopted bylaw) may, (by authority of the Community Charter) be followed, altered, or ignored by a simple vote of Council. It happens all the time.
A formal amendment duly adopted in 4 readings is needed to alter the direction of a bylaw. Mind you it might take an order of the Court to force enforcement if a Council is reluctant to do so. Most bylaws are “out of date” and not enforced.
That’s why it comes down to the quality and integrity of the people you elect to Council.” [end quote]
Food for thought,eh!!
It is well established law that a municipality is not required to enforce its bylaws. There is obvious justification for this principle. Firstly municipal bylaws are highly pervasive. The average basically law abiding citizen breaches many a bylaw over the course of a lifetime. If bylaws were enforced to the letter there would be a constant, full-scale war between the citizens and City Hall. The enforcement staff (and costs thereof) would be enormous.
An interesting example of selectively enforced bylaws concern so-called illegal suites. There are probably about 5000 illegal suites in Nanaimo. If they were all closed down, there would be an enormous housing crisis. As a consequence the City pursues a policy which I label calibrated hypocrisy. Acceptable complainants are deliberately limited to close neighbors and tenants. Thusly a job is created for a certain number of bylaw enforcement officers – but not too big a job such that a housing crisis would ensue. Of course, the end result is a highly discriminatory situation where every month a certain number of unlucky home owners are compelled to extinguish their mortgage helpers. It is kind of like a reverse lottery.
I think at some point selective bylaw enforcement could be challenged since it obviously can lead (and does lead) to an abuse of power by City Hall bureaucrats. Bureaucrats are usually fairly talented at picking weak targets; i.e. people who do not have the resources or personal skills to effectively fight back. But the bottom line whenever there is selective enforcement is discriminatory treatment.
The inverse to bureaucrats picking on the weak targets is their reluctance to pursue the strong.Here I refer to the owners of abandoned service stations who leave the property in totally unacceptable condition then leave town.The City does nothing about it because they know they will get a fight (due to weak bylaws)and of course it could end up being some extra work for staff which would cut into their easy work day and vacation plans,Also the Council is composed in the main of a bunch of useless paper pushing,report reading dinosaurs who stay on Council for the income and health care benefits.
David Brown 14 April 2011 at 10pm
“But the bottom line whenever there is selective enforcement is discriminatory treatment.”
You’ve got that right, David! And I have an example of selective enforcement that I have experienced, which would have cost the taxpayers plenty. My FOI attempt to obtain such information resulted in receiving a written response to the effect that the actual time spent by the officers on a particular matter is not recorded … much to my dismay!
In one tel/con with a bylaw officer on said matter, I raised the issue of the amount of time that various officers had spent on the same rental property, which can best be described as a slum and the response that I received from said officer was that that was what she got paid for. These matters involve not only the bylaw officer’s time … but, of course, the resident/taxpayer’s time. Is the time taken by a resident actually taken into consideration? I really don’t think so.
Just another matter that I should be writing about but am presently working on a Federal election campaign.
How about the ‘busking” bylaws?
Every day a certain fellow plays at the library. It is a yellow spot but he plays when he feels like it. He plays the same song over and over for hours at a time and is not ticketed.I complain for eight years and nothing is done.Bylaws tells me he has a mental disability, and thus they do not ticket him.Finally, I protest this arbitrary enforcement and refuse to buy a licence.I am immediately ticketed even though there is no complaint. Others play unlicenced on non busking spots and are not ticketed.
The busking bylaw is unenforcable and thus should be recinded as The Dolphin Bylaw was in Vancouver.
When a city picks and chooses who to ticket is it discretionary enforcement?
We need to make bylaw enforcement a voting issue. There is no need to spend more money. Our Bylaw officers have no mandate to do anything. It costs nothing to have them come out and give the offender a letter. After 21 days you get the offence cleaned up or buskers hauled away and fines levied. Simple. The fine goes on the taxes if it is a property maintenance complaint. If they default on taxes ……. well, they sure know how to deal with that one don’t they. If there are no taxes to put the fine on then a bus ticket out of town will do nicely and let a city that can handle things deal with it. Obviously our citizens do not complain loudly enough.
It just floors me that city council spends so much time being mealy mouthed and wishy washy when it comes to making people actually honor decent human obligations to neighborhoods and to the general public.
Just give our Bylaw officers the power to issue an order, notice or license on behalf of coucil. Why does all the deciding come from council. Is it another good old boy’s club.
Apathy by people feeds this . Very few people will actually stand up and defend their rights.
Our justice system is another big failure.
The writer of the blog is very correct when he says do your homework , go to town meetings, get involved and by all means VOTE.
Is this person at the library hurting anyone? Is he just sitting there singing his one song? As long as this person is not assaulting anyone as they walk by then leave the person alone. Who cars if he only know one song, please call bylaw about something that is more important than a poor man, who I am guessing has no where to go during the day.
If on the other hand this person is harming people then he needs to be picked up and housed somewhere, that mental healthcare can be provided.
I would think after 8 years there would be more important things to complain to the city bylaw enforcement about.
I can drive around this town and see so many house that have total crap in their yards, lawns uncut that do more to hurt this city than one man singing one song.