Invasive section of Ontario Municipal Act should be repealed
by Peter Jaworski
Did you know bylaw officers in Ontario can waltz onto your private property without your permission and without a warrant?
I’ve asked almost everyone I know, and a few strangers too, and the response I get is uniformly the same, “no, surely they can’t!” Oh, but they can.
Section 436 of the Ontario Municipal Act gives municipalities the power to pass bylaws that permit their officers to walk around in your backyard “at any reasonable time” to pursue an “investigation” stemming from a complaint. Or if the officer has a hunch that maybe you’re up to no good, erecting too large of a tent in your backyard or, God forbid, breaking some other persnickety bylaw regulation.
Section 436 is an affront to the values of privacy and control over our property, and should be repealed.
Bylaw officers and their allies might argue that it’s precisely because bylaws are comparatively minor that we shouldn’t worry so much about their power to send a burly man to go on your property when your children are home alone. After all, bylaw violations result in nothing more than a fine or penalty. Sometimes, depending on how neighbourly they are, just a warning.
This reasoning is precisely backwards. The less significant the offence, the more hoops an officer should have to jump through before being permitted to go on our property without our permission.
If the town bylaw officer sees flowers in the backseat of your car, wilting for want of a cool breeze, we would be outraged if he presumed to open your door and roll down a window. We would laugh in his face while calling the police if he were to say, “hey, wait, it’s no big deal! There’s no fine or penalty involved for letting your flowers wilt.” Few of us would object if, instead of flowers, an officer spotted a dog or a child in the backseat of a car suffering in the sweltering heat.
We wouldn’t object because compromising values like privacy and control over our property for something of equal or greater value is less objectionable than the reverse.
But bylaw offences are minor offences. Section 436 permits unreasonable searches, compromising our privacy and control over our property, for the sake of basically the equivalent of ensuring that flowers don’t wilt.
If bylaw officers and their allies argue that they must have this power to make bylaws effective, tell them to talk to Alberta. Section 542 of the Alberta Municipal Government Act requires that reasonable notice be given to the property owner or occupier of the land before any investigation or inspection takes place. As far as I can tell, municipalities in Alberta are not suffering from an uncontrollable explosion in kids flying kites in their backyards contrary to bylaw.
Giving “reasonable notice” is the absolute minimum that Ontario can do to respect our privacy.
Peter Jaworski teaches business ethics at Georgetown University. He will be speaking on the subject of bylaw bullies at the Canadian Property Rights Conference in Ottawa, Sept. 14-16.