Gobin v. Nicholson, 2020 ONMIC 13

City of Oshawa Integrity Commissioner, Guy Giorno

Citation: Gobin v. Nicholson, 2020 ONMIC 13 Date: November 30, 2020

Report on Complaint

Notice: Municipal Integrity Commissioners provide investigation reports to their respective municipal council and, in most cases, make recommendations for imposition of penalty or other remedial action to the municipal Council. Therefore, reference should be made to the minutes of each particular municipal council to obtain information about the particular council's consideration of each report. When possible, a link to the relevant municipal council minutes is provided.

Please find below the link to the corresponding council decision.

http://app.oshawa.ca/agendas/City_Council/2020/12-14/MINUTES_2020-12-14_Council.pdf (pages 382-383, resolution no. 387)

TABLE OF CONTENTS

The Complaint 3

Summary 3

Background 4

Positions of the Parties 7

Preliminary Issue 7

Complainant’s Position 8

Respondent’s Position 9

Reply and Sur-reply 9

Process Followed 10

Findings of Fact 11

Issues and Analysis 12

A. Preliminary Issue: Should the Complaint be dismissed because it was based on partial information in a social media post? 12

B. Does section 15 of the Code of Conduct cover political interference in the independence of municipal law enforcement? 12

C. Did Councillor Nicholson contravene section 15 of the Code of Conduct? 16

D. Did the contravention of section 15 result from an error of judgment made in good faith? 20

Recommendations 21

Content 22

The Complaint

1Mr. Marty Gobin (Complainant) alleges that Councillor Brian Nicholson (Respondent) contravened sections 13 and 15 of the Code of Conduct for Members of the Council of The Corporation of the City of Oshawa and the Board of Management of the Oshawa Central Business District Improvement Are, Consolidated By-law 51-2015, by attempting to interfere with the independence of the City’s municipal law enforcement officers.

2I decided to inquire only into the allegation under section 15 of the Code of Conduct. In my view, section 13 does not apply to the facts alleged in the Complaint.

3The Complaint involves a current political and community issue within the City of Oshawa. As Integrity Commissioner, I have no business inserting myself into that issue. I am not commenting on the outreach mission of LIFE Community Project, on homelessness, on strategies to support those in need, on the use of municipal parks, or any related matter. This report must not be interpreted as commentary on these topics. It only addresses whether Councillor Nicholson interfered with the independence of municipal law enforcement, contrary to the Code of Conduct

Summary

4I find that the Respondent’s communication contravened section 15 of the Code of Conduct (Conduct Respecting Staff). The basis for my finding is the well-established principle that politicians must not interfere in the independence of law enforcement.

5I arrive at this conclusion based a fair and reasonable reading of the Respondent’s own words, in the context of Canadian law upholding the independence of law enforcement from political interference.

6Councillor Nicholson acknowledges the findings in this report, and he apologizes. He was motivated by the 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 find that the contravention resulted from an error of judgment made in good faith.

7I recommend that Council accept this report. I also recommend that Council assess the need for training or refresher training for Members on the essential separation between Council Members and municipal law enforcement officers.

Background

8Oshawa is home to more unsheltered homeless people than anywhere else in Durham Region. By one account, some three-quarters of the Region’s unsheltered homeless live in Oshawa.¹ Large numbers of the homeless are children and youth, and individuals who identify as Indigenous or having Indigenous ancestry are significantly over-represented among the homeless.²

9The LIFE Community Project describes its mission as, “Providing free clothing/necessities/food for those most in need!” Its communications add the explanation, “No one should have to go without these necessities of life.”

10LIFE stands for “Life Is For Everyone.” The LIFE Community Project is not a registered charity nor even a legal entity. It is an unincorporated group of volunteers active in the community. In the group’s own words, “we are just individuals that believe in showing love & compassion for all!”

11Since March 17, around the time of the provincial declaration of emergency arising from the COVID-19 pandemic, LIFE volunteers have provided sandwiches and snacks to needy residents of Oshawa. I have not verified the numbers (nor is the exact count relevant to the issues in this report), but social media posts suggest that 200 sandwiches are made and distributed each day.

12This would mean that, as of the date of this report, more than 51,000 sandwiches have been distributed during 258 days of volunteer outreach to the homeless and people living in extreme poverty. LIFE also provides clothing and necessities such as toiletries. It also currently provides free breakfasts.

13The LIFE Community Projects relies not just on the active contribution of volunteers, but also the support of donors who provide food, toiletries, etc.

14Memorial Park is a City park. It is located downtown, on Simcoe Street South, between Metcalfe Street and John Street West.

15As its name suggests, Memorial Park is home to the Cenotaph that honours members of the community who lost their lives in service to Canada. Since it was unveiled November 11, 1924, the Cenotaph has listed the names of 138 Oshawa residents killed in what was then known as the Great War. Later, plaques were added to commemorate those who fell during World War II and who served in Korea.³

16An inscription on the Cenotaph names the place, “The Garden of the Unforgotten.” It further reads:

DEDICATED TO THE HONOURED MEMORY OF THE MEN OF OSHAWA WHO GAVE ALL THAT MAN CAN GIVE, LIFE ITSELF IN THE GREAT WARS 1914 - 1918 1939 - 1945 1950 KOREA 1953 KNOW YE WHO PASS THIS WAY THAT THOUGH WE FELL AND OTHER LANDS NOW CLAIM OUR DUST WE SLEEP CONTENT

17Memorial Park is where, starting in approximately 2015, volunteers associated with the LIFE Community Project distributed free sandwiches and snacks, weekly on Sunday, to residents in need.

18As mentioned, since the onset of the pandemic, this outreach and support are now provided daily, in the same location.

19The use of Memorial Park has become the subject of considerable attention, discussion, activity, law enforcement issues, City decision making, and news media coverage, none of which fall within an Integrity Commissioner’s jurisdiction. It would be inappropriate for me to comment on them. This report addresses only the Code of Conduct issue.

20On August 31, at 7:04 p.m., a co-founder of LIFE Community Project posted the following message⁴ on Facebook:

I am an individual that was told today that I can no longer provide free food for those most in need, that I can no longer help those most in need in a public space of my choosing! There are those that feel that love & compassion should be practiced in a hidden far away place!

Tomorrow I will be at Memorial Park in Oshawa like I have been, if laws are not just or abused we must do the right thing. We must make a stand St draw the line in the sand! I will continue to practice love & compassion for all!

Why not join me tomorrow between 1-3 pm, we are continuing each day to provide free food for those most in need between 1-3 pm at Memorial Park!

LIFE - Love Is For Everyone

21Another individual saw this post, drew it to the attention of Councillor Nicholson, and then reported on Facebook: “I shared this to Oshawa Councillor Brian Nicholson!”

22Councillor Nicholson sent a message to the City staff, and shared it with the individual, who then posted the following⁵ on Facebook:

I copied this from my note to Brian Nicholson. This is his reply!! He is trying to help!!

Brian Nicholson I have sent the following to the City >>>

I am writing to you on a matter of some concern.

I have been informed by representatives of the LIFE (Love Is For Everyone) group which has been supplying food to those in need that they were approached by a bylaw enforcement officer who instructed them that they are no longer allowed to distribute food in Memorial Park. They indicated that the Bylaw officer stated that the orders came from their supervisor and were at the direction of the City.

I am writing to you to determine if this action as described is accurate and have we as a city decided to remove LIFE from Memorial Park. If not, can I get a clear statement that LIFE may continue to provide free food to those in need as long as they meet all reasonable regulations regarding health, safety etc.

If it is true, can you provide me with the rationale and authority to remove this operation and with the names of the staff or elected official who initiated this course of action?

As a member of Council who supports this group and their efforts, and who was not consulted in any way with this decision, I would like to be informed as to why, who and how this occurred.

I would also like to officially request that any actions to remove this group from Memorial Park be put on hold 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.

The last thing we need as a City is to act precipitously and give our community a black eye on this issue.

As I am told that the group intends to be at the park tomorrow, a prompt answer would be appreciated.

Thank you

Councillor Brian N

23During the inquiry I received and reviewed the entire August 31 email of Councillor Nicholson. The subject line was “Memorial Park.” It was sent to Brenda Jeffs, Director, Municipal Law Enforcement and Licensing Services, and to Chief Administrative Officer Paul Ralph,⁶ with a copy sent to Mayor Dan Carter.

24The only portions of the email that had not been posted on Facebook were an introductory paragraph (“Hello Brenda, I hope you have had a good summer.”) and the full name and title of the sender (“Councillor Brian Nicholson [new line] Ward 5 Oshawa”)

25The City’s Director, Municipal Law Enforcement and Licensing Services, responded the next day, September 1:

Good morning Councillor Nicholson

[sentence containing irrelevant personal information of sender and recipient omitted]

Municipal Law Enforcement began working with [co-founder of LIFE], as well as other organizations operating out of the park, in early July as the City has been receiving complaints about these daily food distribution events and the corresponding impact to Memorial Park. Complaints range from debris, smoking, drug use, loitering for long periods, fights and altercations, lack of social distancing, lack of permit and the general inability of others to comfortably use the park and access the sidewalk.

We understand your concerns and will be discussing today and hope to have more information by the end of the day.

Brenda Jeffs, Director, Municipal Law Enforcement and Licensing Services | City of Oshawa

Positions of the Parties

Preliminary Issue

26Councillor Nicholson notes that the email’s opening line, “Hello Brenda, I hope you have had a good summer,” was omitted from the Complaint. Mr. Gobin states that the Complaint is based on the Facebook post and he did not have access to the entire email. Councillor Nicholson takes issue with the fact that Mr. Gobin “is relying on a partial submission of information on a social media site provided by another unidentified person. This fact alone would appear to be sufficient grounds to dismiss his application.”

Complainant’s Position

27The Complainant alleges that the Respondent’s email contains a series of requests, demands and declarations that contravene the Code of Conduct.

28The Complainant draws particular attention to the portions of Councillor Nicholson’s email that:

• Requested the names of staff members who made the decision to enforce the City’s by-laws against LIFE.
• Demanded that the City staff provide a rationale directly to a sitting Oshawa City Councillor explaining the reason for exercising the discretion to enforce the City’s by-laws.
• “Officially” requested “that any actions to remove this group from Memorial Park be put on hold 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.”

29According to the Complainant, the email contravenes both section 13 and section 15 of the Code of Conduct. Section 13 provides that each Member must show respect for the staff, and for staff members’ professional capacities and responsibilities. (I have informed both parties that this section is not relevant to the inquiry.) Section 15 reads as follows:

No Member shall use or attempt to further her or his authority or influence by intimidating, threatening, coercing, commanding or influencing improperly any staff member or interfering with that person's duties, including the duty to disclose improper activity.

30The Complainant cites Greatrix v. Williams, 2018 ONMIC 6, at paras. 132-142, as support for the proposition that the independence of law enforcement officers underpins the rule of law, and 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.

31According to the Complainant, the Respondent’s request for individual staff members’ names was improper. If Councillor Nicholson were only interested in a general policy debate at a Council meeting, then the names would be irrelevant. The Complaint feels that asking for names amounts to intimidation and an attempt to influence improperly.

32Also improper, the Complainant argues, was the request for “the rationale and authority” to remove LIFE from the park. The Complainant refers to statements that enforcement action would be taken starting September 1. In his view, Councillor Nicholson was effectively asking law enforcement officials to explain the decision to lay a charge or to issue an administrative penalty notice.

33Finally, the Complainant objects to Councillor Nicholson “officially” requesting that law enforcement activities cease until City Council was able to debate and to decide on the matter. He states that Councillor Nicholson, as one of eleven Council Members, does not possess the authority to speak for Council or to give direction to staff on behalf of Council. He adds that it would nevertheless be outside the jurisdiction of City Council to instruct law enforcement officers on whether or not to undertake enforcement action against specific individuals.

Respondent’s Position

34Councillor Nicholson submits that at no time did he give any direction to the staff or seek to coerce the staff into any decision. He acknowledges that an individual Council Member “has no authority to direct staff to undertake any action.”

35Instead, he says that his communications were consistent with his role as a Council Member in that he “raised some inquiries that [he] felt were relevant and sought information as to the status of the issue raised to [him].” He submits that Council Members have a “duty and obligation” under the Municipal Act to exercise an “oversight responsibility” and make inquiries when they are concerned with actions taken by the staff.

36Councillor Nicholson notes that the tone of his email to the Director, Municipal Law Enforcement and Licensing Services, was cordial, as was the tone of her reply.

Reply and Sur-reply

37In Reply, Mr. Gobin agrees that a Council Member lacks the authority to direct the staff to undertake any action, but disagrees with Councillor Nicholson’s claim that he never gave any direction. He states that the phrasing of the email indicates a clear intent to influence using his office by using the phrase “officially request.” The Complainant then reiterates that Councillor Nicholson’s use of influence was improper because individual Councillors are not supposed to attempt to influence the actions of law enforcement officers.

38Mr. Gobin rejects the Councillor’s assertion that he and other individual Council Members have a duty under the Municipal Act to make inquiries regarding issues that are raised with them, noting that no such duty exists under the Act.

39The Complainant argues that the cordial tone of a communication but that is irrelevant to whether it attempted to influence the action of the City staff and whether the attempt to influence was improper.

40The Respondent’s sur-reply sets out his position on the allegation with law enforcement. Councillor Nicholson believes there is no evidence of interference with the actions of law enforcement officers because he was never in contact with “any of the law enforcement officers who were involved in the file.” He says the Director, Municipal Law Enforcement and Licensing Services, was not the investigative officer and had no carriage of the file.

41Councillor Nicholson states the following:

Ms Jeffs is the Director of the Municipal Law Enforcement and Licensing Department and is the appropriate person to which a Council member shall make all enquiries regarding the department. She is so designated so as to prevent any contact with those who are actively involved in investigation. It is entirely appropriate to contact the Manager when a member of Council has questions regarding interpretations of bylaws or administrative decisions. It is also appropriate to enquire as to who initiated the course of action as it could provide an opportunity to better understand the rationale behind the investigation. As indicated in my email to Ms Jeffs I requested that she consider delaying further action until a full report could be provided to City Council as a body. The decision to do so or not is solely at her discretion.

42His sur-reply also addresses the Complainant’s emphasis on the phrase “officially request” and argues that the entire Complaint is based on Mr. Gobin’s interpretation of that phrase. Councillor Nicholson uses dictionary definitions of the terms “officially” and “request” in order to demonstrate that he was politely requesting information, not demanding for any type of remedial action. As noted above, he believes that his email was merely a request that the Director, Municipal Law Enforcement and Licensing Services, consider delaying further action until a full report could be provided to Council.

Process Followed

43In operating under the Code, I follow a process that ensures fairness to both the individual bringing a Complaint and the Council Member responding to the Complaint. This process is based on the Code of Conduct Complaint Procedure that was adopted by Council.

44The Complaint was submitted on September 1. I issued a Notice of Inquiry on September 14 and Councillor Nicholson submitted his Response on the same day. The Complainant replied on October 22. The Respondent provided a sur-reply on November 2.

45The Notice of Inquiry informed the parties that the inquiry would proceed only under section 15 of the Code of Conduct. It stated that I would not investigate or inquire into the allegation under section 13, which provides that, “Each member shall show respect for staff, and for their professional capacities and responsibilities.” Based on the facts alleged in the Complaint, section 15 was and is the applicable provision. In my view, section 13 is intended to mean something different than section 15.

46I am mindful of the fact that the financial impact of code of conduct complaints and integrity commissioner investigations falls entirely on the municipal tax base. Integrity commissioners and codes of conduct have been mandated by the Province without any corresponding provincial funding. Consequently, I conduct a full and fair process that at the same time is efficient and reasonable taking into account the circumstances of each case.

47The Complaint is based on single email, that Councillor Nicholson has shared with me and acknowledges sending. Apart from the email, no other actions of Councillor Nicholson are alleged to have contravened the Code of Conduct.

48I have, therefore, confined the inquiry and this report to the August 31 email, which speaks for itself. I have not expanded the inquiry to encompass the reactions and perceptions of other individuals, as these are irrelevant to the allegation. The evidence before me, and the very thorough submissions of the parties, are sufficient for me to report on the allegation.

49Each party had the opportunity to make two written submissions to me and comment on the other party’s submissions in this proceeding.

50Before reporting to Council, I sent Councillor Nicholson a draft of this report, including preliminary findings but excluding the recommendation, and invited him to comment. I explained that the findings were preliminary pending his submissions, which I would take into account.

51I received comments from Councillor Nicholson which I have taken into account.

Findings of Fact

52The facts are set out in the Background section of this report.

53Councillor Nicholson emailed the Director, Municipal Law Enforcement and Licensing Services, on August 31. The text of email (including the opening line “Hello Brenda, I hope you have had a good summer”) is presented above.

Issues and Analysis

54I have considered the following issues:

A. Preliminary Issue: Should the Complaint be dismissed because it was based on partial information in a social media post?

B. Does section 15 of the Code of Conduct cover political interference in the independence of municipal law enforcement?

C. Did Councillor Nicholson contravene section 15 of the Code of Conduct?

D. If Councillor Nicholson contravened the Code of Conduct, did the contravention result from an error of judgment made in good faith?

A. Preliminary Issue: Should the Complaint be dismissed because it was based on partial information in a social media post?

55No.

56The Respondent submits that the Complaint constitutes a “partial submission of information from a social media site provided by another unidentified person.” He says this fact alone is sufficient grounds to dismiss the application.

57I disagree.

58First, I note that the Complaint includes copies or screen captures of the relevant Facebook posts, including the names of the individuals who posted. No one is an “unidentified person.”

59Second, fairness requires that a Respondent have sufficient notice of the case against him to be able to respond meaningfully: Michael Di Biase v City of Vaughan, 2016 ONSC 5620, at paras. 138-139. Councillor Nicholson knows what was alleged. He has received, and he has exercised, the right of meaningful response.

B. Does section 15 of the Code of Conduct cover political interference in the independence of municipal law enforcement?

60Yes, section 15 prohibits political interference in the independence of municipal law enforcement.

61Also, the Director, Municipal Law Enforcement and Licensing Services is an “Officer” under the City’s Enforcement By-law and is included among the law enforcement officials protected from political interference.

62Section 15 broadly covers the attempt to influence improperly any staff member or to interfere with that staff member’s duties. Since municipal law enforcement officers are staff members, and law enforcement is their duty, it is obvious that section 15 protects municipal law enforcement officers, just as it protects the rest of the staff, from attempted influence and attempted interference.

63This interpretation of section 15 is bolstered by the fundamental legal principle that the independence of law enforcement must be free from political inference, and by the City’s Enforcement By-law, By-law 92-2014,⁷ which expressly protects municipal law enforcement officers from such interference.

64The legal principles are summarized in Greatrix v Williams, 2018 ONMIC 6, and Re Partner, 2018 ONMIC 16.

65Section 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

66The 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

67The 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

68The 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]

69This specific issue was considered at great length by the British Columbia Ombudsperson, whose observations (in a 2016 special report) represent the most detailed review of the independence of municipal law enforcement officers in a Canadian context:

… council establishes overall priorities for enforcement, enacts bylaws, and adopts bylaw enforcement policies and standards of conduct for bylaw enforcement staff. Council may also provide direction on types of bylaw enforcement issues. For example, council may direct its enforcement staff to prioritize enforcement of certain bylaws, or to issue warnings rather than tickets for specific categories of violations.

Within this framework, everyday enforcement decisions are delegated to staff. Defining and maintaining separation between council and front-line enforcement staff is essential to an administratively fair bylaw enforcement system. It is important for council members to be aware of how their own actions can affect the fairness of an enforcement process. This means that while council sets policy and provides general direction on enforcement priorities, its individual members should not become directly involved in enforcement action by directing enforcement against specific residents, groups or businesses, or by directing that enforcement action not occur in a particular circumstance. Rather, individual enforcement decisions should be made by delegated bylaw enforcement staff or contractors.

It can be difficult for council members to remain a step removed from the day-to-day enforcement process when they are a main point of contact for members of the public who have complaints or who have been the subject of enforcement. It is understandable that council members want to be responsive to the concerns of those who elected them. In such situations, it is certainly appropriate for a member of council to seek assurance that bylaw enforcement staff have fairly responded to a person’s concerns.

However, even if motivated by good intentions, council members should not advocate either publicly or privately for a particular result in a specific case. 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. Each member of council should strive to remain uninvolved in a specific bylaw enforcement decision unless and until the matter is put on the agenda for the entire council to consider.¹⁶ [emphasis added]

70In the City of Oshawa, these legal principles have been codified in the Enforcement By-law. The Preamble to the Enforcement By-law recognizes that:

Council considers it appropriate to ensure the proper administration of justice, to respect the roles of Council members, complainants, staff investigators and prosecutors in the administration, enforcement and prosecution of alleged contraventions of municipal bylaws and other applicable provincial legislation, and to ensure that such investigations and prosecutions occur in a fair and unbiased way, free from any improper influence or interference.¹⁷ [emphasis added]

71The Director, Municipal Law Enforcement and Licensing Services, is defined as an “Officer” under the Enforcement By-law.¹⁸

72Under section 2 of the Enforcement By-law, an individual Council Member may only make a complaint to the City regarding alleged contraventions of by-laws. An individual Council Member may also be summoned to testify in the prosecution of an alleged contravention.

73According to the Enforcement By-law, the only roles of Council as a whole are: to make, amend and repeal by-laws; to set the budget and policies for municipal law enforcement; and “at meetings of Council or of one its Standing Committees, [to] ask questions of, and [to] receive information from, the Director on general questions relating to the enforcement of Municipal Standards.”¹⁹ [emphasis added]

74Section 4 of the Enforcement By-law confirms the broad discretion possessed by municipal law enforcement officers. Without limiting the full range of options available to officers, I note that they may receive complaints, screen complaints, and undertake investigations. They may conclude an investigation on the basis that there is insufficient evidence to proceed with enforcement, that the matter has been brought into compliance, that the complaint is trivial, frivolous, vexatious or made in bad faith, or that the matter should be enforced. Enforcement tools include requests, administrative orders, municipal remedial work, administrative penalty, Provincial Offences Act Part I or Part II proceedings, Provincial Offences Act Part III prosecutions, and seeking relief by way of action or application in the Superior Court of Justice.

75Officers are subject to the directions of the Director, Municipal Law Enforcement and Licensing Services.²⁰ On a case-by-case basis, all investigations and enforcement are subject to any directions of the Director.²¹ This is significant. Not only is the Director herself defined as an Officer, she has the authority to give direction in any investigation or enforcement matter. Contrary to Councillor Nicholson’s argument, channeling the attempt to influence through the Director does not insulate a Council Member from a finding of interference in the law enforcement process. On the contrary, attempting to influence the Director is interference with the senior municipal law enforcement officer who possesses authority in every individual case.

76Section 6 of the Enforcement By-law confirms that all investigations and enforcement must be undertaken “independently of political or other external influences.”

77The Enforcement By-law further provides that:

11. Each Officer who is contacted by a member of Council with respect to an outstanding complaint or investigation matter, other than a complaint made by or against the Council member or in which the Council member is a witness, shall immediately disclose such contact to the Officer’s Director.

12. Each Director shall disclose to the City Solicitor the particulars of each report provided to the Director pursuant to sections 10 and 11. The City Solicitor may report the particulars to Council.

78I repeat that the By-law defines the Director, Municipal Law Enforcement and Licensing Services, as an Officer. Contact by an individual Council Member with any Officer, about an individual case, is considered so significant that it must be reported up to the City Solicitor and possibly to Council.

79Any steps under sections 11 and 12 of the Enforcement By-law that might have been triggered by Councillor Nicholson’s email have no bearing on this Code of Conduct inquiry.²² It is not my place to administer the Enforcement By-law. I have considered the Enforcement By-law only in the course of interpreting and applying section 15 of the Code of Conduct. In my view, section 15 clearly covers the attempt to influence or to interfere in a particular law enforcement case.

C. Did Councillor Nicholson contravene section 15 of the Code of Conduct?

80Yes. I find that August 31 email constituted the use of authority and influence as a Council Member, in an attempt to influence improperly, and in an attempt to interfere with the duties of, the municipal law enforcement officers.

81Councillor Nicholson was writing as a Council Member, and he used the word “officially.” It is clear that the email represented the use of the authority and influence that he possessed as a Council Member.

82Councillor Nicholson seems to disagree that he was acting in an official capacity. He cites dictionary definitions to support the explanation that one can use the word “officially” without using the influence of one’s official capacity.

83Having considered everything Councillor Nicholson says on this point, I find that he was clearly emailing as a Council Member and not in a personal capacity. (This not the case where a Council Member is the subject of an investigation, for example in relation to a property standard affecting a Council Member’s property, or where a Council Member is being interviewed or testifying as a witness to an incident.) Including the Mayor and CAO on the email, use of the City’s email account, use of his title, the familiar tone with which he addressed the Director: all are indicia of a communication sent in his capacity as a Council Member.

84The content of the email is unambiguously written in the capacity of a Council Member. Councillor Nicholson writes, “we as a city … As a member of Council … we as the elected Council … The last thing we need as a City …” The email makes a specific request to defer action pending Council consideration.

85In summary, I find that the email unquestionably employs the authority and influence of the author’s position as a Council Member.

86The next consideration is whether the Respondent’s authority and influence were used in an attempt to influence to influence improperly, and to interfere with the duties of, the municipal law enforcement officers.

87Councillor Nicholson submits that he was merely asking questions, and not attempting to influence action. As I explain below, I find that Councillor Nicholson was, in part, seeking to influence action. I also find that many of his questions, by themselves, constituted interference in law enforcement.

88The email asked for “any actions to remove this group from Memorial Park be put on hold until a full report is presented to members of Council …” Asking a municipal law enforcement officer to put enforcement action “on hold” was an attempt to influence enforcement in an individual case. The attempt to influence enforcement action in an individual case is always improper, and contrary to section 15.

89The email stated, “The last thing we need as a City is to act precipitously and give our community a black eye on this issue.” This was clearly an attempt to influence enforcement action (that is, not to have action occur “precipitously”) in an individual case. This was improper, and contrary to section 15.

90Further, the email asked questions that were improper and interfered in law enforcement.

91I consider first the sentence, “If not, can I get a clear statement that LIFE may continue to provide free food to those in need as long as they meet all reasonable regulations regarding health, safety etc.” I find that this was not really a question in the sense of a request for information. Instead, I find that this sentence advocated a particular enforcement outcome in a particular case: namely, that the LIFE Community Project be allowed to continue to provide food to those in need. I expressly refrain from commenting on the importance of LIFE’s work or on the use of Memorial Park. I simply observe that this sentence sought to influence the outcome of a particular law enforcement matter and was, therefore, contrary to section 15.

92The email then asked for, “the rationale and authority to remove this operation and .. the names of the staff or elected official who initiated this course of action.” It continued, “I would like to be informed as to why, who and how this occurred.” These two sentences were requests for information, and not requests for action. However, I find that the requests for information were improper and constituted interference with law enforcement.

93The absence of political interference in municipal enforcement means that Council members must not interfere. Asking the justification for the exercise of discretion in a particular case constitutes interference. Asking who exercised discretion in a particular case constitutes interference.

94Municipal law enforcement officers are never answerable to an individual Council Member. Municipal law enforcement officers are certainly not answerable to an individual Council Member for how they exercise discretion in a particular case. The request, “I would like to be informed as to why, who and how this occurred” was improper, constituted political interference, and was contrary to section 15.

95I draw attention to the full sentence in those words appear.

As a member of Council who supports this group and their efforts, and who was not consulted in any way with this decision, I would like to be informed as to why, who and how this occurred.

96The reference to support for LIFE, in an individual law enforcement case, is problematic. Municipal law enforcement must be independent of political interference. It should be irrelevant whether a politician supports or does not support the person or entity that is the subject of the law enforcement action.

97The words, “who was not consulted in any way with this decision,” are also concerning. It would be improper to involve a politician in deciding on law enforcement action in an individual case, and a Council Member should not expect to be consulted.

98This report is based on the email of Councillor Nicholson. In reviewing such a communication, it is important to be reasonable and fair in considering the gist of the Council Member’s message, without placing undue emphasis on a particular word. As was noted in Greatrix v. Williams, at paragraph 164:

It is important to remember that Council Members, when they send emails, use the language of ordinary people and not of legal drafters or judges. It would be inappropriate, therefore, to pick apart the wording of a Council Member’s email as if it were a legal contract or a judicial decision.

99I have considered the Respondent’s email based on this fair and reasonable standard, considering the gist of his message and not placing undue emphasis on any particular word. I cannot arrive at any conclusion other than that the email was written in the capacity of a Council Member and attempted to influence improperly, and interfere in the duties of, the municipal law enforcement staff.

100I have considered the Respondent’s explanation for contacting the Director, Municipal Law Enforcement and Licensing Services. The explanation does not alter my finding that section 15 was contravened.

101He states that the Director “is the appropriate person to which a Council member shall make all enquiries regarding the department.” This may be true as a general matter, but inquiries that interfere with individual law enforcement cases are simply impermissible, regardless of which law enforcement officer (I repeat, again, that the Director is one of the officers) is contacted.

102He refers to “questions regarding interpretations of bylaws or administrative decisions.” Law enforcement actions in individual cases are not merely “administrative decisions.” They are independent exercises of discretion that must be protected from political interference. Intervening in an individual case cannot be explained away as asking questions about an administrative decision.

103He states, “It is also appropriate to enquire as to who initiated the course of action as it could provide an opportunity to better understand the rationale behind the investigation.” [emphasis added] With great respect, I disagree strongly with the underlined words. An individual Council Member has no need to understand the rationale for a particular law enforcement investigation, or a particular step in an investigation, and no right to ask for an explanation.

104He notes that he does not possess the authority to direct the Director. Lack of actual authority does not negate an attempt to influence and to interfere.

D. Did the contravention of section 15 result from an error of judgment made in good faith?

105According to the Complaint Procedure:

If upon completion of the investigation, the Integrity Commissioner finds that … the contravention committed was trivial or committed through inadvertence or an error of judgment made in good faith, the Integrity Commissioner shall set this out in its report to Council.

106I am therefore required to include in my report whether the contravention of section 15 resulted from an error of judgement made in good faith.

107Similar passages appear in the codes of conduct of many different municipalities. Some of the similar provisions state that a finding of inadvertence or good-faith error must lead to a recommendation that no penalty be imposed. The Oshawa provision, quoted above, simply states that inadvertence or good-faith error is to be reported to Council.

108Passages such as this appear to be borrowed from subsection 31(6) of the Members’ Integrity Act, which provides as follows:

If the Commissioner determines that … a contravention occurred that was trivial or committed through inadvertence or an error of judgment made in good faith, the Commissioner shall so state in the report and shall recommend that no penalty be imposed.

109Previous provincial Integrity Commissioners²³ set a relatively low bar for what constitutes an error of judgment made in good faith. Former Ontario Integrity Commissioner Osborne found good-faith errors by an MPP who passed off a news reporter as a legislative staff member, in order to facilitate her unauthorized entry into the Don Jail during the SARS lockdown,²⁴ and by an MPP who used the Government of Ontario courier service to ship eight large boxes overseas for a friend.²⁵ In each case, a key factor seemed to be the presence of an altruistic motive.

110A similarly low bar was set in the City of Toronto, where good-faith errors were attributed to a councillor who used a ward newsletter to announce her candidacy in a provincial by-election,²⁶ and a councillor who accepted a benefit of below-market rent for his constituency office. ²⁷ An altruistic motive (to save taxpayers’ money) was cited in the second instance. In the first case, no reason was given for the finding of good faith.

111The application of the old “error in judgment” language of the Municipal Conflict of Interest Act²⁸ (different than the language at issue here) involved stricter criteria.²⁹ Even then, good intentions were considered mitigating factors.³⁰

112Upon review of a draft of this report, Councillor Nicholson stated that he never intended to influence decisions in the investigation, but only to secure information for follow up, but now recognizes how the wording of his email could have been more clear.

113He explains that he acted pursuant to his understanding of the role as a councillor based on the training and instructions that he had received. He indicates that the findings in this report are more in-depth, and provide more clarity on the separation of roles of Council Members and the municipal law enforcement staff, than training previously received. He suggests that Council may benefit from an education and training session on this topic.

114He now understands that his email was contrary to section 15 of the Code of Conduct and says the breach was certainly inadvertent and an error in judgement made in good faith, as it was never his intent to insert himself in the decisions of a law municipal enforcement officer. He offers an apology.

115I 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.

Recommendations

116Having found that Councillor Nicholson contravened the Code, I must recommend an appropriate consequence.

117Councillor Nicholson acknowledges the findings in this report, and he apologizes. He made an error of judgment in good faith. I recommend that Council accept this report.

118I also recommend that Council assess the need for training or refresher training on the essential separation between Council Members and municipal law enforcement officers.

Content

119Subsection 223.6(2) of the Municipal Act states that I may disclose in this report such matters as in my opinion are necessary for the purposes of the report. All the content of this report is, in my opinion, necessary.

Respectfully submitted,

Guy Giorno Integrity Commissioner November 30, 2020

Footnotes

1. 1Community Development Council Durham and Durham Mental Health Services, Durham 2017 PiT Count Report (June 2017).
2. 2Ibid. Persons who identify as Indigenous or of Indigenous ancestry make up a percentage of the homeless population 17 times greater than their representation among the general population of the Region.
3. 3Canada, Department of Veterans Affairs, Canadian Military Memorials Database, online: https://www.veterans.gc.ca/eng/remembrance/memorials/national-inventory-canadian-memorials/details/5571
4. 4At the time of this report, the post remains available online: https://www.facebook.com/TheArcherRedHeart/posts/10157991053926379
5. 5This comment is also available online: https://www.facebook.com/TheArcherRedHeart/posts/10157991053926379?comment_id=10157991342201379
6. 6I note for completeness that the email addresses of both Ms Jeffs and Mr. Ralph appeared in the “To” line of the email, even though the body of the email suggests the correspondence was directed to Ms Jeffs.
7. 7City of Oshawa, By-law 92-2014, Being a by-law to establish a transparent, consistent, fair, unbiased, and effective process for the enforcement and prosecution of alleged contraventions of municipal standards.
8. 8Police Services Act, R.S.O. 1990, c. P.15, s.15.
9. 9Provincial Offences Act, R.S.O. 1990, c. P.33, subs. 1(1), definition “provincial offences officers,” clause (d).
10. 10R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190 at para. 37.
11. 11Ibid., at para. 38.
12. 12Ibid., at paras. 51, 86.
13. 13R. v. Campbell, 1999 CanLII 676 (SCC), [1999] 1 S.C.R. 565, at para. 29.
14. 14Ibid., at para. 33
15. 15City of Toronto, Executive Director, Municipal Licensing and Standards, “Tools Available to Municipal Licensing and Standards for Enforcement” (September 7. 2016), at 3.
16. 16British Columbia, Office of the Ombudsperson, “Bylaw Enforcement: Best Practices for Local Governments” (March 2016), Special Report No. 36, at 15-16.
17. 17By-law 92-2014, Preamble, para. 5.
18. 18Ibid., para. 1.4(c) and para. 1.6(a).
19. 19Ibid., section 3.
20. 20Ibid., section 4.
21. 21Ibid., section 6.
22. 22I note that the Chief Administrative Officer received Councillor Nicholson’s original email.
23. 23I refer to previous Ontario Integrity Commissioners, because the current Integrity Commissioner, the Honourable J. David Wake, appears never to have relied on a finding of inadvertence or good-faith error.
24. 24Re David Levac (July 23, 2003), Integrity Commissioner Osborne, at 10-11, paras. 32-35.
25. 25Re Sandra Pupatello (December 12, 2002), Integrity Commissioner Osborne, at 11, paras. 33-34.
26. 26O’Reggio v. Watson, 2007 ONMIC 1, Integrity Commissioner Mullan.
27. 27Sweeney v. Palacio, 2008 ONMIC 1, Integrity Commissioner Mullan.
28. 28Subsection 10(2), as it read prior to March 1, 2018.
29. 29Magder v. Ford (2012), 2012 ONSC 5615, 112 O.R. (3d) 401, at para. 52; rev’d on other grounds, but aff’d on this point, (2013), 2013 ONSC 263, 113 O.R. (3d) 241 (Div. Ct.).
30. 30Jaffary v. Greaves, 2008 CanLII 28055 (Ont. S.C.), at para. 42; Davidson v Christopher, 2017 ONSC 4047, at para. 31.