Municipality of Clarington Integrity COMMISSIONER, Guy Giorno
Citation: Gogos v. Jones, 2022 ONMIC 7 Date: April 5, 2022
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 links to the corresponding council decisions.
https://pub-clarington.escribemeetings.com/FileStream.ashx?DocumentId=32310 (Minutes of May 2, 2022, Regular Council Meeting, see item 9.2.2, Resolution # C-107-22, adopting recommendations contained in Minutes of the General Government Committee Meeting dated April 11, 2022)
https://pub-clarington.escribemeetings.com/FileStream.ashx?DocumentId=32215 (Minutes of April 11, 2022, General Government Committee Meeting, see item 7.5, Resolution # GG-181-22)
TABLE OF CONTENTS
The Complaint 3
Summary. 3
Background. 4
Process Followed. 12
Positions of the Parties. 16
Complainant’s Position. 16
Respondent’s Position.. 20
Findings of Fact 22
Issues and Analysis. 27
Issue A: Did Councillor Jones misuse her office or the influence of office, contrary to section 13.1?. 27
Issue B: Did the Code apply to Councillor Jones’s treatment of the Complainant?. 28
Issue C: Did the manner in which Councillor Jones treated the Complainant involve bullying, harassment, or discrimination, or otherwise contravene section 7?. 34
Content 34
Appendix: Excerpts from Code of Conduct for Members of Council 35
The Complaint
- Ms Christine Gogos (Complainant) alleges that Councillor Janice Jones (Respondent) contravened sections 7 and 13.1 of the Code of Conduct for Members of Council, By-Law 2017-020, in the course of a neighbourhood dispute. Section 7 of the Code prohibits harassment, bullying, discrimination, and similar inappropriate conduct toward other people. Section 13.1 prohibits the misuse of the influence of office.
Summary
The Respondent’s dispute with the Complainant was related to a personal matter that had no connection to the Municipality.
A careful review of the evidence confirms that, in the course of the dispute, the Respondent did not use or attempt to use the influence of her office as a Council Member. A painstaking examination of recordings disproves the allegation that the Respondent was using her office as a Council Member for purposes unrelated to municipal business. Consequently, section 13.1 (Improper Use of Influence) was not contravened.
The Code states that every Council Member must comply with the Code, “whether or not acting in his or her capacity as a member of Council.” Despite this provision, I find that the Code does not apply to an incident that is unrelated both to the office, role, function, influence, authority, and responsibility of a Council Member, and to the interests and business of the Municipality. It cannot be the case that an Integrity Commissioner has authority to make findings about whether somebody has been a good neighbour, friend, co-worker, spouse, parent, child, sibling, or community resident, or that Members are subject to Council-imposed penalties if their personal lives are less than exemplary. Unless it relates to Clarington’s interests, a Council Member’s personal life is beyond the scope of the Code.
Consequently, the harassment, bullying, and discrimination provisions of the Code (section 7) do not apply to the interaction between the Complainant and the Respondent.
The events giving rise to the Complaint involve the interaction among the Complainant, the Respondent, and a third individual whom I refer to in this report as the Other Adult. The Other Adult is not covered by the Council Code of Conduct and is not a party to his inquiry. I mention the Other Adult only to the extent it is necessary to understand and assess the Complainant’s allegations against the Respondent.
Background
In this report, including the transcripts, I have used placeholders, Name1, Name2, Name3 and Name4, instead of four proper names (first names). Name1 is someone who was telephoned by the Other Adult and whom the Complainant believes was another Council Member. Name2 is the driver of a Chevy Blazer that appears on the second video recording. Name3 is the name by which the police constable greeted the Other Adult. Name4 is the Other Adult’s actual first name.
Subsection 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. Because of the findings that I am making, including the finding about the application of the Code to what took place, I include in this report only the facts that are directly relevant to the allegations and findings. There was history between the parties prior to what occurred in June 2021. The inquiry canvassed that history thoroughly, but I am choosing not to include it in this report. Given that the facts are interwoven with the private lives of the parties and the Other Adult, this report sparingly describes the background facts. As a result, the summary of events starts abruptly, and individuals’ acts may seem to lack context. This is because restraint in describing people’s private lives takes precedence over narrative flow.
The Complainant says that on June 15, 2021, she was at home with a minor child when she heard the Respondent outside stating that the Complainant had “killed” the Respondent’s vines.
Soon afterward, the Respondent and the Other Adult came to the Complainant’s front door.
In total that evening, the Respondent and the Other Adult made three visits to the Complainant’s doorstep. The parties agree on the number of visits. They disagree on the sequence of what occurred.
During or shortly after the first visit of the Respondent and the Other Adult, the Complainant phoned the police.
According to the police report, the Complainant’s first call to the police was made at approximately 7:10 p.m.
At or shortly before 7:18 p.m.,1 the Respondent and the Other Adult returned to the Complainant’s door a second time. The Respondent rang the doorbell seven times over an eight-minute span,2 and the Complainant did not answer. After yelling to attract the Complainant’s attention (see paragraph 23 for the transcript) they left the porch at 7:26 p.m.3
At approximately 7:33 p.m., the Respondent and the Other Adult returned to the Complainant’s door a third time. The Respondent rang the doorbell once during this visit, at 7:33 p.m. The Respondent and the Other Adult departed the Complainant’s property at 7:35 p.m., after the arrival of a Durham Regional Police Service constable.
Near the start of the Respondent’s second visit, the Complainant activated her porch camera. The camera was also active during the third visit.
Consequently, two recordings (recordings of the second and third visits) were available to the inquiry. The video footage is clear. The audio is of moderate quality. Repeated, patient listening is required to make out some portions of the conversation. Frequently words are obscured by the sounds of contractors working across the street.4
According to time stamps, one recording runs from 7:18 p.m. to 7:28 p.m.5 The second recording runs from 7:33 p.m. to 7:35 p.m. and ends when the police constable arrives on the Complainant’s porch.
On both recordings, the video runs at approximately twice normal speed, while the speed of the audio is normal. Each video must be slowed to normal speed to be aligned with the audio.
The first recording shows the Respondent and the Other Adult standing on the Complainant’s porch. They remain there until 7:26 p.m., when they leave the porch (and move out of view) for the rest of the recording, which stops at 7:28 p.m. The second recording, from 7:33 p.m. to 7:35 p.m., begins by showing the Respondent alone on the porch, after which the Other Adult joins her. The recording ends with the Respondent and Other Adult moving from the porch to the driveway, where they speak briefly to the police constable, who then walks up the porch steps toward the Complainant’s door.
The Complainant states that she phoned the police three times more, once during the second visit, once during the third visit, and once more that night.
At approximately 7:35 p.m., Constable Clinton Pipe of the Durham Regional Police Service arrived at the Complainant’s house.
The following transcript is based on my analysis of the first recording, which corresponds to the Respondent’s second visit to the Complainant’s door:
Other Adult: No. I don’t want to sit on their fucking, nasty furniture. They’re [ethnicity]. They’re dirty people.
Respondent: Don’t say that. That’s wrong.
Other Adult: [inaudible] terrible.
Respondent: That’s wrong. They’re just mean people.
(pause)
Other Adult: I mean, you could always call the cops on her and get a restraining order.
Respondent: What is the point? I mean, that’s just wasting their time.
Other Adult: That is the [inaudible] angle. Like the police come running.
Respondent: That’s the whole problem. Like, it’s wasting By-law’s time. It’s wasting the police’s time.
Other Adult: Um hmm.
Respondent: [inaudible]
Other Adult: No.
(pause)
Respondent: [inaudible] They don’t care for anything unless [inaudible]’s there [inaudible]
Other Adult: They don’t care about everybody, in their fucking, stupid, little property.
(pause)
Respondent: How is this legal?
Other Adult: Should I report it’s illegal?
Respondent: No.
Other Adult: Why not?
Respondent: What’s the point?
Other Adult: Because if they –
Respondent: They can go ahead and charge me. If it’s that –
Other Adult: If they try –
Respondent: – a problem they can charge me –
Other Adult: No. If they try to say anything, I’ll burn the [inaudible] right now.
(pause)
Other Adult: OK. Call the cops. We’ll keep ringing your bell.
(pause)
Other Adult (on phone): [inaudible] they’ve got a big generator on the back, and some tanks.
Voice on phone: [inaudible]
Other Adult: Ring the doorbell, dude.
Voice on phone: [inaudible]
Respondent: What is [inaudible]?
Voice on phone: [inaudible]
Other Adult: He’s more [inaudible] than anything
Voice on phone: [inaudible]
Other Adult: [inaudible] He says [inaudible] like they actually do good work
Respondent: [inaudible]
(pause)
Respondent: Watch [inaudible] the door.
Other Adult: I know. Doesn’t mean we can’t stand here. They want to be a prick, I can be a fucking prick.
(pause)
Other Adult: I’m gonna call Name1 and see what he’s doing.
(ringing sound)
Other Adult (on phone): Hello? Hello?
Recorded greeting: After leaving a message –
Other Adult: Oh. Oh my [inaudible]
(pause)
Other Adult: [inaudible] the Noise By-law too, and I ain’t got shit to do with the grass [inaudible]
Respondent: I do. I am the law –
Other Adult: I know you do.
Respondent: – practically.
(pause)
Other Adult (speaking to phone): The [ethnicity] have fucked us over for the last time. Me and [Respondent] are standing in front of their fucking house. We already were here.
Male voice on cell phone: [inaudible]
Other Adult: Fucking dumbass [ethnicity] bitch was like I’m calling the cops, so I yelled at her and called her a fucking bitch. Cut [Respondent’s] vine and killed it. That fucking vine’s been –
Male voice on cell phone: [inaudible]
Other Adult: Exactly, it was just on the fence, and they fucking killed it. And that vine’s been growing for like 15 years.
Male voice on cell phone: [inaudible] said they would call the cops?
Other Adult: Yes, because [Respondent] rang the door— yeah because [Respondent] –
Male voice on cell phone: I know what to do: [inaudible] come over and [inaudible] fucking eavestrough right off the roof.
Other Adult: Come do it. I’m giving you permission. I don’t even give a shit.
Male voice on cell phone: [inaudible] tonight
Respondent: [inaudible]
Male voice on cell phone: slash the tires [inaudible]
Other Adult: Come right now. Come right now.
Male voice on cell phone: I’m in Port Hope right now.
Other Adult: Oh shit.
Respondent: (laughs)
Other Adult: Oh –
Male voice on cell phone: [inaudible] open that [inaudible] bar.
Other Adult: Where is – Actually you don’t do it yourself. Send someone like Cameron to do it. Pay him some fucking money to do it.
Male voice on cell phone: [inaudible]
Other Adult: Exactly. So you’re going to want to fucking get like Cameron [inaudible]
Respondent: [inaudible]
Male voice on cell phone: Kick their front door open or something.
Other Adult: Well, that’s a little belligerent. They care more about their stupid little – Yeah, they care more about their stupid little plants anyway, than they do [inaudible]
Male voice on cell phone: [inaudible]
Other Adult: [inaudible] This is unreal. [inaudible]
Male voice on cell phone: [inaudible]
Other Adult: We’ve been ringing the doorbell. They won’t come to the door because they’re fucking [inaudible]
Male voice on phone: [inaudible] bitch, she’s like that.
Other Adult: Well, yeah, I actually want the cops to come. I actually do want the cops to come, because we haven’t done shit. They’re the ones that are being dumbasses, and if cops come over [inaudible] and the [inaudible] going on [inaudible]
(pause)
Respondent: Well, the beauty of vines is that it will always grow back.
Respondent (yelling): I can’t believe you people are afraid to talk to me. We’re like grown ups. Like that’s part of the problem people.
Other Adult (yelling): You guys are fucking pussies.
Respondent (yelling): Call the police. I’d love to talk to them.
Other Adult (yelling): Fucking call them, bitch.
From the above transcript, I have removed references to the Complainant’s national or ethnic origin.
The second recording shows P.C. Pipe arrive in an unmarked, dark grey Ford Interceptor Utility, and park across the street. Apparently by coincidence, the police vehicle is followed by a light grey Chevy Blazer. The Other Adult uses his hand to motion to the driver of the Chevy Blazer to back off, and then leaves the porch, goes onto the street, and speaks to the driver of the Chevy Blazer. (I refer to the driver as Name2 in the transcript below.) The Chevy Blazer turns around in a driveway and exits toward the direction from which it came. When P.C. Pipe gets out of the Ford Interceptor, the Respondent leaves the porch, and the Respondent, the Other Adult, and the police constable speak to another while standing on the Complainant’s driveway. The recording ends with P.C. Pipe walking onto the Complainant’s porch.
The following is a transcript of the audio portion of the second recording, which corresponds to the Respondent’s third visit to the Complainant’s door. The Respondent and Other Adult remain silent, and only start to speak when they see the police constable arrive in an unmarked vehicle.
Respondent: Oh, who’s that?
Other Adult: I was wrong.
Respondent: Now, you just keep quiet.
Other Adult: Oh God, Name2’s here.
Respondent: Oh. Tell him to leave. Seriously, tell him, go and tell him to leave.
(pause)
Police: Hi there.
Respondent: Hi.
Police: You call?
Respondent: I did not call. The neighbour has called. I’m just [inaudible] for the last year or so, and I’m just trying to talk to them. I want to end the war.
Police: OK. (to Other Adult:) Are you Name3?
Other Adult: Name3?
Respondent: Name4 is [redacted]. They called; he was with me.
Police: OK.
Respondent: Name4 has –.
Police: All right. Because they called, I’ll see them first.
Respondent: Yep. I’m right over here.
Police: Yeah.
In the above transcript, Name4 represents the Other Adult’s actual name. Name3 represents what the police constable said to the Other Adult, which was either a mispronunciation of the Other Adult’s name or a mistake in naming the Other Adult.
When Constable Pipe was admitted to the Complainant’s home, he found that she had been crying.
The background above is either agreed by both parties or confirmed by me based on a review of the recordings and the police report.
The parties dispute the sequence of what happened during the three visits.
The Complainant says that she opened the door in response to the Respondent’s first visit, and she did not open the door when the Respondent returned the second and third times.
The Respondent states that the Complainant opened the door during the second visit, and she did not open the door during the first and third visits.
More specifically, the Complainant’s version is that the Respondent and the Other Adult arrived a first time at 7:08 p.m., yelling, “Open the door, we know you’re home,” and “I’m not leaving until you come out.” The Complainant states that she then opened the door and told the Respondent and the Other Adult to get off of her property. In the Complainant’s words, what happened next was that
Janice slapped her left hand on my door and aggressively pushed herself halfway in to my front foyer and yelled “I'm not leaving until I talk to you.” I then pushed her out with the door and locked it right away and called the police.
According to the Complainant, during the Respondent’s second and third visits, the Complainant did not open the door but made another call to the police on each occasion.
In the Respondent’s version of the visits, during the first visit, “Get off my porch” was yelled without the door being opened. The door was eventually opened, during the second visit:
When I first came to [Complainant’s] door, I rang her doorbell and waited for her to answer the door. No one answered so I continued to ring the doorbell. I wanted to talk to her [background details redacted]. I continued to ring her doorbell, and no one answered. After some time, she yelled through the door, “I’m calling the police. Get off my porch.” I then returned to my property. I waited on my porch and then thought this is crazy, we need to work this out, so I returned to her porch and rang the doorbell and waited for her to come to the door. She eventually came to the door, opened it, and yelled, “I’m not talking to you,” and slammed the door in my face. At no time, did I touch her door, or attempt to enter her home. She has a large plant in the middle of her porch, and it is difficult to even get near the door; it would be very difficult to force open the door as you cannot get near it. I waited at the front of her house and then the police arrived and I spoke with them.
Both parties agree that the Respondent offered, through the police constable, to discuss and work out the issues between her and the Complainant, and the Complainant declined. (The Complainant explains that she felt the Respondent’s offer was insincere.)
Later than same evening, there was a further communication between the parties, leading to a fourth telephone call by the Complainant to the police.
The parties agree on the fact that there was a brief, subsequent discussion, and generally agree on the content. The only material point of disagreement is whether the Respondent called the Complainant a “bitch.”
According to the Complainant:
Within an hour after the officers [sic]6 left, I was visiting my neighbour across the street and Janice came outside and walked to her car. Janice then looked over at us and began yelling at me. She yelled, “Too bad you didn't want to talk to me, Christine.” I then said, “You’re not allowed to speak to me, please stop.” Janice then replied, “No one ever told me I can’t speak to you. Who do you think you are? You’re crazy. You are crazy, lady,” and then called me a crazy b*itch. I did not reply and Janice drove off.
- The Respondent’s recollection is as follows:
My comments to [Complainant] while walking to my car that “too bad you didn’t want to talk to me” was my opinion at the time. Again I made no reference to my role as a Councillor, and I did not attempt to use my Council position to influence her to speak to me. I believe that I referred to her as crazy, but at no time did I call her a bitch.
After this conversation, the Complainant called the police again. P.C. Pipe came back and spoke to the Complainant in person. He was unable to speak to the Respondent in person, but spoke to her by telephone later same night.
Three days after these events, the Complainant filed the Complaint.
Process Followed
In operating under the Code, I follow a process that ensures fairness to both the individual bringing a Complaint (the Complainant) and the Council Member responding to the Complaint (the Respondent). This process is based on the Council Code of Conduct Complaint Procedure adopted by Council.
This fair and balanced process begins with me issuing a Notice of Inquiry that sets out the issues in the inquiry. The Complaint, including any complaint materials, is attached to the Notice. The Respondent is given the opportunity to respond, and then the Complainant receives the opportunity to reply to the Response. The Respondent is made aware of the Complainant’s name. I do, however, redact personal information such as personal phone numbers and email addresses. In this case, the submissions of both parties contained highly sensitive personal information that I also redacted; the redactions had no effect on the fairness of the inquiry. I may accept supplementary communications and submissions from the parties, generally on the condition that each party gets to see the other’s communications with me. I do this in the interest of transparency and fairness.
I received the Complaint on June 18. On July 8, the Complaint was supplemented by the two recordings. The June 18 and the July 8 materials, collectively, comprise the Complaint. The official date of complaint was July 8.
On July 9, I issued a Notice of Inquiry.
The Complaint had cited paragraphs 13.1 (a) and (b) and sections 7.1. 7.2 and 7.3 of the Code. I exercised my discretion to determine that the inquiry would consider section 13.1 and all of section 7 of the Code. The Notice invited the parties to address eight specific issues under section 13.1 and eight additional specific issues under section 7.
Section 13.1 of the Code of Conduct prohibits the misuse of the influence of office. The Notice of Inquiry identified the following questions as relevant to section 13.1 of the Code:
a. Whether Councillor Jones used her position as a Council Member to purport to authorize the Other Adult to enter or to remain on the Complainant’s private property, by saying, “I do, I am the law, practically,” or words to that effect.
b. Whether Councillor Jones used her position as a Council Member to demand access to the Complainant’s family residence on a matter unrelated to municipal business for the private advantage of Councillor Jones and/or the Other Adult. The Complaint alleges that Councillor Jones “felt that her role as a Ward 1 Councillor gives her authority to continue to come on my porch regardless if she was told to leave.”
c. Whether Councillor Jones used her position as a Council Member to demand that the Complainant speak to the Respondent about a matter unrelated to municipal business for the private advantage of the Respondent and/or the Other Adult. The Complaint alleges that Councillor Jones made reference to her power as a Council Member during the June 15 incident.
d. Whether, subsequent to the demand that the Complainant speak to her because she is a Council Member, Councillor Jones made further statements about her purported right to require the Complainant to speak to her, such as, “too bad you didn't want to talk to me, Christine,” and, “No one ever told me I can’t speak to you. Who do you think you are? You’re crazy. You are crazy, lady,” or words to that effect.
e. Whether Councillor Jones attempted to use her office or the influence of office to imply preferential access to the police, when she told the Complainant, “call the police, I’d love to talk to them,” or words to that effect.
f. Whether Councillor Jones used her position as a Council Member to attempt to influence an identified Councillor, to intervene in a matter unrelated to municipal business for the private advantage of Councillor Jones and/or the Other Adult.
g. Whether Councillor Jones used her position as a Council Member for the private advantage of the Other Adult, namely, for the purpose of assisting the Other Adult in a personal dispute with the Complainant.
h. Whether Councillor Jones used her position as a Council Member for her own private advantage, namely, for purposes of a personal dispute with the Complainant related to vines belonging to Councillor Jones or that Councillor Jones claimed belonged to her.
- Section 7 of the Code prohibits harassment, bullying, discrimination, and similar inappropriate conduct toward other people. The Notice of Inquiry identified the following questions as relevant to the consideration of section 7:
a. Whether Councillor Jones harassed, bullied, or intimidated the Complainant and her minor children by standing on the porch of the Complainant’s family residence, yelling, banging the door, and demanding that the Complainant open the door to admit her.
b. Whether Councillor Jones harassed, bullied, or intimidated the Complainant and the Complainant’s minor children by bringing with her the Other Adult, who openly discussed vandalism or violence while he was standing on the porch of the Complainant’s family residence, and by laughing when the vandalism or violence was discussed.
c. Whether Councillor Jones harassed, bullied, or intimidated the Complainant and the Complainant’s minor children by refusing to leave the front porch of the Complainant’s family residence.
d. Whether Councillor Jones used indecent, abusive. or insulting-words or expressions toward the Complainant, including “crazy” and “bitch.”
e. Whether Councillor Jones was a party to ethnic slurs directed to the Complainant and the Complainant’s family, including “they’re [ethnic]; they’re dirty people,” and “fucking dumbass [ethnic] bitch,” or similar language.
f. Whether Councillor Jones was a party to sexist and misogynistic insults directed to the Complainant, such as “fucking pussies,” and “bitch,” or similar language.
g. Whether the alleged actions described above constituted discrimination against the Complainant by Councillor Jones, and/or harassment of the Complainant by Councillor Jones, on the basis of ethnic origin or sex.
h. Whether Councillor Jones was subject to the Council Code of Conduct when she allegedly acted as described above.
The Notice of Inquiry informed the parties that the inquiry would not consider whether the Other Adult contravened the Code, because the Other Adult is not subject to it. The Notice left open the possibility that the actions of the Other Adult might have been relevant to the determination of whether the Respondent herself breached the Code.
The Respondent provided her written response on July 28. Following review, and following redaction of personal information, I sent it to the Complainant on August 18.
The Complainant replied on August 23 and submitted a revised Reply on August 26.
On August 30, I asked the Municipality to search in its files for a series of records that I thought potentially could be relevant. I received the search results, September 10. I asked for further records, September 24, and received them, September 28.
I conducted interviews of the Complainant and Respondent on October 1 and October 5 respectively.
I received and reviewed considerable photographic evidence related to the vines.
I took time to explore whether the inquiry might be resolved or settled by agreement of the parties. Settlement was not possible.
I issued a delegation under subsection 223.3(3) of the Municipal Act to a lawyer who works with me, authorizing him to conduct witness interviews. On December 16, I wrote to three potential witnesses – sending the requests by Canada Post Xpresspost – asking them to participate in the inquiry.
Two witness interviews were conducted in January.
The third potential witness did not respond to written requests and multiple telephone messages. In late February I determined that I would bring the inquiry to a close without hearing that person’s evidence.
A lengthy portion of the inquiry was consumed by analysis of the recordings. A considerable amount of time was spent comparing the recording to what the Complainant alleged that the Respondent said. The most significant portions of dialogue were replayed scores of times. That analysis is essential to the findings in this report. In fact, the recordings disprove the allegation that the Respondent was using her office as a Council Member for purposes unrelated to municipal business.
As mentioned, the audio portions of the recordings were of moderate quality. A contributing factor was the noise of contractors working directly across the street from the Complainant’s home. From my observation, the project was an interlock stone driveway and/or walkway. Sunset in Clarington did not occur until 8:59 p.m. that day, and workers appeared to be making full use of the long daylight hours. Loud noises of their equipment and activity could be heard throughout the duration of both recordings. Those repeated noises included metal hitting stone, engine sounds, and what seemed to be the sound of a concrete saw.
To ensure that the inquiry was based on best quality recording and to mitigate any impacts of compression and transmission, I requested and received from the Complainant multiple copies on different storage media. In all, I received four copies of each recording, most recently in March 2022. Some of what I hear on the recordings is different than what the Complainant feels was said; I examined the recordings exhaustively before reaching this conclusion.
I have considered all the submissions of the parties, and all of the evidence including municipal records, municipal by-law enforcement records, photographs from several sources, video recordings, maps, and email records. I have received, reviewed, and considered a large volume of evidence related specifically to dealings between the Complainant and the Respondent, and related generally to neighbourhood happenings, prior to June 15, 2021. Ultimately, I have determined that the history of the parties’ relationship is not the basis on which the inquiry is to be decided; nonetheless, it was necessary to review a significant volume of evidence before reaching that conclusion.
Section 223.8 of the Municipal Act states that an Integrity Commissioner who determines there are reasonable grounds to believe that there has been a contravention of the Criminal Code or of a provincial Act, other than the Municipal Conflict of Interest Act, shall immediately refer the matter to the appropriate authorities, suspend the inquiry until the disposition of any resulting police investigation and charge, and report the suspension to Council. Throughout the inquiry I have been mindful of this obligation but at no time have I had a reasonable ground to believe that an offence under the Criminal Code or a provincial statute occurred.
I observe that the Durham Regional Police Service classified the matter as “Non-Criminal Only” and considered the matter “Completed.” I also note that the attending police constable could not exactly make out the comments recorded by the front door camera.
Under the Code of Conduct Complaint Procedure, no action may be taken on a complaint received more than six months from the date of the alleged violation of the Code. Consequently, I may not consider any alleged violation that occurred prior to January 8, 2021. However, occurrences before that date might be relevant to whether violations occurred on or after that date.
In quoting from documents in an inquiry report, my practice is to edit punctuation and capitalization for consistency and to correct immaterial typographical and textual errors.
On March 27, I shared with the Respondent a draft of this report. The Respondent provided comments on April 4. I have taken the Respondent’s comments into account in finalizing this report.
Positions of the Parties
- A significant part of each party’s submissions dealt with incidents occurring prior to June 15. Some of incidents took place years prior. My summary of the parties’ positions is confined to June 15.
Complainant’s Position
The Complainant denies cutting the Respondent’s vines on June 15 or the previous day. She also observes that she has a legal right to cut anything growing on her property. The Complainant argues, however, that the real issue on June 15 was not the vines but the Respondent’s assumption that the Complainant had made a by-law complaint against the Other Adult. The Complainant explains that she had been cutting the vines on her property for many years, without incident.
The Complainant states that at approximately 7:08 p.m., June 15, the Respondent and the Other Adult rang her doorbell, and then banged on the door and yelled, “Open the door. We know you’re home.” The Respondent yelled, “I'm not leaving until you come out.”
According to the Complainant, the Respondent and the Other Adult continued to yell, “We’re not leaving until you come out,” so the Complainant answered the door and told them to get off the property, and said she was calling the police. As I have explained at paragraph 33, the Complainant states that the Respondent then attempted to push her way into the home.
The Complainant states that she was crying and shaking as she telephoned the police. She was waiting for the police to arrive when, at 7:17 p.m., the Respondent and Other Adult came onto the porch and began ringing the doorbell again. The Complainant states that she activated the recording function of the front porch camera, and called the police a second time. She activated the recording again, and phoned the police again, when the Respondent returned at 7:33 p.m.
The Complainant maintains that she answered the door during the Respondent’s first visit, and told the Respondent to leave the property. Consequently, the Complainant explains, the Respondent knew that her second and third visits were unwelcome.
The Complainant makes a number of allegations and says they are backed up by the recordings:
She alleges that the Respondent just stood and allowed the Other Adult to say, “I want to spit on their nasty furniture. They’re [ethnicity]. They’re dirty people.”
She alleges that the Other Adult yelled, “OK. Call the cops. We’ll continue to ring your doorbell,” and the Respondent replied, “Yup.”
She states that Name1, who was telephoned by the Other Adult, was another Member of Council, and states that the Respondent told the Other Adult to leave a message.
She alleges that the Respondent failed to intervene while the Other Adult and a male speaking on the telephone engaged in a conversion in which they called the Complainant a “bitch” and a “fucking dumbass [ethnicity] bitch” and then discussed physical damage to the Complainant’s property, including kicking the Complainant’s door open and damaging the Complainant’s plants, as well as discussed paying a third individual to damage the Complainant’s property.
According to the Complainant, the Respondent allowed the Other Adult to solicit someone to damage the Complainant’s home and to offer to pay for the damage to be done.
She alleges that when the Other Adult invited the male voice on the telephone to damage the Complainant’s property (“Come do it. I’m giving you permission.”) and the other male stated, “I’m in Port Hope,” the Respondent chuckled.
The Complainant states that the driver (of the light grey Chevy Blazer), who appears in the second recording (third visit), had been summoned by the Other Adult. The Complainant is alarmed by how quickly the driver arrived in front of Complainant’s house, and fears what would have happened if the police had not arrived at the same moment.
The Complainant makes an additional allegation, that in my view is central to the question of whether the Respondent was using her position as a Council Member:
[Other Adult] then makes reference to me calling By-law on [Other Adult] for a noise complaint, which was actually not me but rather [redacted]. [Other Adult] then states [Other Adult] doesn’t care if [Other Adult] is not allowed to be on my property and asks [Respondent] if she gives [Other Adult] permission and Janice then replies, “I do. I am the law, practically,” reassuring [Other Adult] that she has authority to allow [Other Adult] on our property.
- Later, the Complainant describes the same comment as follows:
Ms. Jones can be heard stating, “I am the law, practically” on the video in response to [Other Adult’s] remarks about a noise complaint and damaging my grass. This cannot be refuted.
According to the Complainant, the Respondent “makes reference to her power as a councillor twice on the video.” The Complainant quotes the Respondent as yelling, “I can’t believe you people are afraid to talk to me, way to solve the problem,” and yelling, “Call the police. I want to talk to them.” This occurred while the Other Adult was yelling that the Complainant was a “bitch” and she and her family were “pussies.”
The Complainant’s account of what occurred after the police constable left appears at paragraph 39, above.
The Complainant states that if the Respondent genuinely wanted dialogue and a resolution, then the Respondent would not have been accompanied by the Other Adult.
The Complainant states that the Respondent herself behaved in a manner that was “hostile, aggressive and threatening.” Other words that the Complainant uses to describe the Respondent’s conduct on June 15 are “unstable,” “uncompassionate,” “absolutely despicable,” and “disgusting manner for the whole neighbourhood to witness.”
The Complainant argues that the Respondent’s repeated visits, after the Respondent had been told to leave, constituted harassment. “[W]what authority was bestowed upon her that she felt it necessary and within her right, to continuously come on my property after I specifically told her to leave and not return?”
The Complainant states that the harassment also included “abusive, racial and harassing” comments, and threats of property damage, by the Other Adult. She claims that the Respondent did not tell the Other Adult to stop or to leave, and even chuckled at the comments. The Complainant finds nothing funny about ethnic insults and verbal abuse, and is disgusted by the suggestion that the Respondent found them comical. According to the Complainant, the Respondent was a party to the behaviour of the Other Adult.
The Complainant explains that the Respondent’s conduct on June 15 was extremely stressful, even harmful, to the Complainant and to a minor child who was at home and witnessed it. She provides personal information in support of this claim that I am not including in the report.
The Complainant alleges that the Respondent acted in this manner because she was a Council Member:
“When a neighbour tells you to leave her property or she'll call the police, any normal person would respect their request and leave, not show up 2 more times and stay on their porch for over 10 minutes constantly yelling and allowing [Other Adult] to continue to swear through the door and ring their doorbell. … Unfortunately, Janice felt that her role as a Ward 1 Councillor gives her authority to continue to come on my porch regardless if she was told to leave. She is not above the law. Other neighbours took notice and were stunned. The officer was even surprised when I mentioned to him that she is a Ward 1 Councillor. Contract workers doing landscaping on our neighbour’s house across the street also took notice and asked me the next morning if I was OK.
… This is not only improper behaviour from a Councillor, but also as a citizen, and a neighbour. … She has tarnished her image to those of us who witnessed these events unfold on June 15, 2021.
- In the same vein, the Complainant argues that the Respondent was exerting authority over the Complainant:
The fact that she was told to leave my property and to not come back, shows her in direct violation to my rights as she began trespassing on my property. We felt threatened in our home by the aggressive actions of Ms. Jones and [Other Adult]. NO ONE should ever feel threatened in their own home. She had no right to come back and disturb our peace by her continuous harassing behaviour. They were NOT looking for a resolution. This was a very careless and disgraceful attempt to intimidate us. Ms. Jones and [Other Adult] felt that they had authority over me, the homeowner, to disregard my request by returning two more times and shockingly had the audacity to even make arrangements, while standing on MY PORCH, to hire friends to come and damage our property. To makes matters worse, Ms. Jones did absolutely nothing to STOP [Other Adult’s] actions. We are still stunned as to how bold they both felt causing a scene for the whole neighbourhood to witness on my property. [emphasis added]
The Complainant further alleges that the conduct was unbecoming of a Council Member: “As a Member of Council, I do expect a certain level of professionalism and integrity from Ms. Jones, but that was not evident at all during this incident.”
In response to the Respondent’s comments about the recordings (see paragraph 114, below), the Complainant takes the position that the security cameras operate lawfully and that the police had previously confirmed this.
Respondent’s Position
The Respondent is a nurse practitioner and full-time front-line health care worker. At the time, she had been deployed to a nursing home where an outbreak resulted in many deaths. While caring for residents, she herself contracted COVID-19 and became seriously ill. June 15 was a stressful day at work and, when she came home that evening, she discovered that her vines had been cut. This made her distraught, and the Other Adult was trying to comfort her and address the situation.
The Respondent says she went to the Complainant’s house to discuss the vine. Instead of discussing the matter, the Complainant videotaped the Respondent.
The Respondent states that she did not bang on the Complainant’s door, and states that she rang the doorbell between five to seven times during the course of three visits. According to the Respondent, several of the rings occurred during the first (unrecorded) visit. “No one answered so I continued to ring the door bell. I wanted to talk to her … I continued to ring her door bell and no one answered.”
The Respondent denies yelling, except when she raised her voice to make the following statements: “I can’t believe you people are afraid to talk to me.” “Really acting like grown-ups.” “Let’s solve the problem, people.” “Call the police. I want to talk to them.”
The Respondent states that she came to the Complainant’s porch three times but did not refuse to leave.
According to the Respondent, she was engaged in a private dispute with the Complainant, and was not in any way acting as a Council Member, or using or attempting to use any influence as a Council Member. At no time did she make reference to herself as a Council Member or to her power as a Council Member. The claim that the Respondent felt her role as Ward 1 Councillor allowed her to come onto the Complainant’s porch despite requests to leave is based on nothing but conjecture, she states.
The Respondent’s position is that she had every right to defend her property (her vine), and in doing so she was acting as a private individual and not as a Council Member.
The Respondent notes that she did not demand access to the Complainant’s residence.
She states that she did not use her influence as a Council Member to encourage the Other Adult to enter or remain on the Complainant’s property. The Other Adult made an independent decision, and acted upon seeing that the Respondent was upset. The Respondent explains that she was indeed upset that evening; she now regrets allowing the Other Adult to accompany her.
The Respondent states that she did not condone the Other Adult’s remarks about the Complainant or the Complainant’s ethnicity, including the gendered insults. She explains that she was not party to those comments and, in fact, told the Other Adult not to talk that way. Further, she argues that the Other Adult was the one who made the comments, and the Respondent did not harass or discriminate against the Complainant.
The Respondent denies encouraging the Other Adult to make statements about damaging the Complainant’s property. She laughed at one point becomes the Other Adult’s comments were outlandish, not because she agreed with them.
The Respondent denies telling the Other Adult, “I am the law.”
The Respondent denies that the words, “Call the police. I would love to talk to them,” implied influence on, or preferential access to, the police. She notes that it was the Complainant who first told the police constable that the Respondent is a Council Member.
The Respondent explains that she wanted to talk to the police, because she genuinely felt that dialogue would help to bring an end to the conflict.
The Respondent states that she did not ask another Council Member to get involved in or to or intervene in the dispute.
The Respondent’s position is that, “Section 7 of the Code of Conduct does not apply in the context of a private dispute unrelated to council business, such as my dispute with [Complainant].” In support of that position, she relies on the wording of sections 1.2, 7.1 and 7.6 of the Code of Conduct.
The Respondent cites subsection 8(1) of the Municipal Act:
The powers of a municipality under this or any other Act shall be interpreted broadly so as to confer broad authority on the municipality to enable the municipality to govern its affairs as it considers appropriate and to enhance the municipality’s ability to respond to municipal issues.
Based on this provision, she argues that, “the Code of Conduct cannot be interpreted to apply to a private dispute involving a councillor not related to municipal business, such as my dispute with [Complainant} …”
The Respondent expresses concern that the Complainant’s video camera impermissibly records activity taking place beyond the boundaries of the Complainant’s property – and believes that such recordings were unlawful. She also notes that the Complainant’s recordings include some conversations that took place on the Respondent’s own property but could be heard on the Complainant’s property.
The Respondent concludes: “I am embarrassed by this whole situation, and the fact that I became as emotional as I did. I did not, however, breach the Code of Conduct.”
Findings of Fact
Findings of fact appear in the Background section of this report, and below. Findings are based on the evidence, according to the standard of the balance of probabilities. The audio and video recordings have allowed me to assess the reliability of individual recollections. Where accounts differ, I have made findings that are in harmony with the preponderance of the probabilities based on all of the evidence. Below, where a finding relates to a claim made by a party, I refer to that claim.
During the Complainant’s first telephone call to the police, she mentioned that the Respondent or the Other Adult threatened the use of a gun and a bullet. That allegation was not made in this inquiry. The Complainant told the attending police officer that the Respondent was uttering profanities. That allegation also was not made in this inquiry.
Despite what was said to the police, I find no evidence that a gun and bullet were mentioned, and I find no evidence that the Respondent uttered profanities.
In relation to the parties’ conflicting recollections of where the opening of the door fit into the sequence of visits: I find that the Complainant opened her door to the Respondent during the Respondent’s first visit onto the porch. The Complainant did not open her door to the Respondent during the Respondent’s second and third visits.
In relation to the Respondent’s statement in paragraph 35: I find that the Respondent’s access to the Complainant’s door was not obstructed by a plant.
In relation to the parties’ conflicting statements about whether the Respondent placed her hand on the door, and whether the Respondent entered or tried to enter the Complainant’s home: I find that the Respondent did not enter the Complainant’s home and did not try to enter. I find that during the first visit the Respondent did place her hand on the door as the Complainant, having opened the door, was trying to close it.
I find that during the Respondent’s first visit to the Complainant’s door, the Respondent was told to get off the property and was told that the police were being called. Consequently, I find that when the Respondent entered the Complainant’s porch the second time and the third time, she knew that she was unwelcome and knew that she had been told to leave the property.
In relation to the Respondent’s claim (paragraph 98) that she did not refuse to leave the Complainant’s property: The Respondent was told to leave at approximately 7:10 p.m., left, returned at 7:18 p.m., left again at 7:26 p.m., and returned again at 7:33 p.m. I find that returning twice after being told to get off the property is equivalent to refusing to leave.
In relation to the Respondent’s statement in paragraph 98: I find that the Respondent rang the Complainant’s doorbell at least twelve times. By her own admission, on the first visit, she rang the doorbell several times – that is, two or more. The video recording of the second visit shows the Respondent ringing the doorbell seven times, about once every minute (see paragraph 14). The recording of the third visit shows her ringing the bell once. On each of the second and third occasions, the doorbell was rung an additional, unrecorded time, before the camera was activated. This means she rang the bell at least a dozen times.
In relation to the parties’ conflicting statements about banging on the door: I find no evidence that the Respondent banged the Complainant’s door. Based on what the recordings show, I find it more likely that the Respondent did not bang, and only rang the doorbell.
In relation to the parties’ conflicting statements about yelling: I find that the Respondent yelled the following statements: “I can’t believe you people are afraid to talk to me. We’re like grown ups. Like that’s part of the problem people.” “Call the police. I’d love to talk to them.” The Respondent did not yell at any other point during the two recordings. I find it likely that the Respondent did yell during the first (unrecorded) visit to the Complainant’s door. I also find it likely that any yelled statements were consistent with the ones cited in this paragraph: that is, they mentioned the Respondent’s desire to have the Complainant open the door and speak to her.
In relation to the Complainant’s allegation in paragraph 76: I find that what the Other Adult actually said was, “I don’t want to sit on their fucking, nasty furniture. They’re [ethnicity]. They’re dirty people.” I find that the Respondent did not remain silent in the face of this slur. Instead, the Respondent told the Other Adult, “Don’t say that. That’s wrong. … They’re just mean people.”
I find that the Respondent did not utter any of the ethnic slurs or the gendered insults (“bitch,” “dumbass [ethnic] bitch,” “fucking bitch”) heard on the recordings.
In relation to the Complainant’s allegation in paragraph 77: The Other Adult said, but did not yell, “OK. Call the cops. We’ll keep ringing your bell.” I do not hear on the recording the Respondent stating “Yep,” or another affirmative response, or any response, for that matter.
In relation to the Complainant’s allegation in paragraph 78: The Other Adult did telephone someone whom the Other Adult called Name1 and reached a voice mail greeting. Name1 is similar to, but not the same as, the name of another Council Member. I find that Name1 was not a Council Member and that the Other Adult was not calling a Council Member. I also find that the Respondent did not participate in the phone call to Name1 and the Respondent did not associate her office, as a Council Member, with that phone call. Finally, I do not hear on the recording the Respondent telling the Other Adult to leave a message for Name1.
In relation to the Complainant’s allegations in paragraphs 79 through 81: I find that the Respondent was present while the Other Adult and a male voice on the telephone discussed intentionally damaging the Complainant’s property, including ripping the eavestrough off the roof and kicking open the front door, while they discussed paying another individual to cause damage, and while they implied damage to the Complainant’s plants. The Respondent laughed when the male voice said that he was in Port Hope (between 42 km and 48 km away from the Complainant’s residence7). During this discussion the Respondent remained mostly silent, but she did interject at least twice. The Respondent’s interventions were inaudible, but I am inclined to accept the Respondent’s position that she was discouraging rather than encouraging the banter. She had previously corrected the Other Adult’s extreme commentary, and her other comments showed respect for the law and legal process.
In relation to the Complainant’s allegation in paragraph 82: I find that Name2, the driver of the light grey Chevy Blazer, who appeared at the same time as the police constable, was not the individual to whom the Older Adult was speaking by phone about damage to the Complainant’s property; the individual was too far away to have arrived within ten minutes.8 I also find that the driver was not the individual whom the Other Adult had proposed paying to damage the Complainant’s property. The Other Adult spoke of paying “Cameron,” and Name2 was not Cameron.
I do find that the Respondent and the Other Adult clearly did not want Name2 to be seen by the police constable. Upon recognizing the light grey Chevy Blazer or its driver, the Other Adult attempted to wave it away, and then ran to meet the vehicle. The Other Adult said, “Oh God. Name2’s here.” The Respondent said, “Tell him to leave. Seriously, tell him, go and tell him to leave.”
I find that the Respondent’s reference to the police (“Call the police. I’d love to talk to them”) was not a reference to her position as a Council Member and was not meant to imply that the Respondent would utilize her public office in dealings with the police.
With one exception, I find that the Respondent did not refer to her position as Council Member during the course of the dispute. The exception is described in the following paragraphs.
Contrary to the Respondent’s recollection, I find that the Respondent did tell the Other Adult, “I am the law, practically.” Clear and unmistakeable on the recording were her two sentences, “I do. I am the law, practically.” Based on the context, I find that the Respondent was referring to her position as a Council Member – that is, a member of the Municipality’s law-making body.
Less clear from the recording is the statement, by the Other Adult, that prompted the Respondent to affirm “I do” and to add that she was “the law, practically.” I consider this question to be central to the inquiry, because it relates directly to whether the Respondent was invoking the authority of her office to aid her in a private dispute. In an effort to clarify what was said, I listened to this 10-second segment of the recording more than 100 times.
I find nothing in the recording to indicate that the Other Adult was seeking permission or authority for trespass or damage to property. Instead, the Other Adult was speaking disdainfully about the Noise By-law and then added, “I ain’t got shit to do with the grass [inaudible].” The Respondent replied, “I do. I am the law, practically.” She had not even begun the second sentence when the Other Adult affirmed, “I know you do,” placing emphasis on the word “you.” In this portion of the transcript (at paragraph 26), I use dashes to indicate where the Other Adult and Respondent were speaking simultaneously.
My finding is that the Respondent was not purporting to authorize law breaking, and was not relying on her office as a Council Member to direct, encourage, or approve the Other Adult’s conduct. I find the most likely explanation to be that the Respondent was explaining why she – unlike the Other Adult – was concerned about the Noise By-law and/or the grass. As a Council Member, she felt obliged to uphold the rule of law. In other words, she was not invoking her authority to make laws; she was underlining her responsibility and duty to uphold laws. (I am fully aware than an individual Council Member has no law-making authority. The legislative function is exercised by the Council collectively. In this paragraph, I am not making a legal statement about how by-laws are enacted. I am making a factual finding about the meaning and intention of the Respondent’s words.)
This finding is consistent with the Respondent’s other statements on June 15. Her recorded comments generally demonstrate respect for compliance with laws and by-laws, and concern about wasting the time of the police and by-law enforcement officials.
I find that the Respondent, either individually, or collectively as a Member of Council, possesses no authority, responsibility or role related to the Durham Regional Police Service.
I find that the Respondent’s statement about calling the police did not mean or imply that the Respondent was suggesting or threatening that she had influence over the police or preferential treatment to the police. At the time the Respondent made this comment, she knew that the police had already been called. I find that the Respondent’s principal reason for inviting the Complainant to call the police (which, as I have noted, had already occurred) was to convey to the Complainant that the Respondent felt that the police would find the Respondent’s position to be more reasonable than the Complainant’s position.
The witnesses provided context concerning the relationship between the Respondent and the Complainant prior to June 15. I am not including that evidence in this report.
No witness heard any specific statements made on the Complainant’s porch on June 15.
One witness saw the Respondent and the Other Adult approach the Complainant’s home on June 15 and was aware that a loud commotion followed, but was unable to hear any specific statements. This witness saw the police arrive a short time later, but could not hear the discussion.
One witness saw the Respondent and the Other Adult walk up to Complainant’s home on June 15. This witness confirmed that the Respondent was angry about the cutting of her vines. According to the witness, the Respondent was at the Complainant’s home for “what seemed like 5 minutes” and the Respondent appeared frustrated by the Complainant’s unwillingness to answer the door. This witness was not close enough to hear any specific statements.
The Durham Regional Police Service did attend the Complainant’s home on June 15. A police report was generated, and I obtained it during the course of the inquiry. The responding constable and author of the police report states: “I viewed the video and I was not able to determine exactly what was said on the video due to the concrete saw and the construction going on across the street.”
The police report confirms that the police constable returned to the Complainant’s home later in the evening of June 15, in response to the Complainant’s complaint that the Respondent continued to try to communicate with her. According to the report, the constable left a voice message for the Respondent later in the evening, at approximately 11:00 p.m.
Issues and Analysis
- For purposes of this report, I have grouped the questions posed in the Notice of Inquiry (see paragraphs 48 and 49, above) into the following three issues:
A. Did Councillor Jones misuse her office or the influence of office, contrary to section 13.1 of the Code?
B. Did the Code apply to Councillor Jones’s treatment of the Complainant?
C. If so, did the manner in which Councillor Jones treated the Complainant involve harassment, bullying, discrimination, or other behaviour prohibited by section 7 of the Code?
As mentioned above, the Notice of Inquiry indicated that I would not consider whether the Other Adult had contravened the Code (since the Other Adult is not subject to it), but I would consider whether Other Adult’s actions might be relevant to the allegations that the Respondent had contravened the Code.
The Notice of Inquiry also stated that the inquiry would not consider whether the Criminal Code, Trespass to Property Act, or another law was contravened. If I have reasonable grounds to believe that any such offence occurred, I am required to suspend the inquiry and refer the matter to the police. I have no reasonable grounds; accordingly, I am completing the inquiry and issuing this report.
The Notice of Inquiry observed that the Code of Conduct Complaint Procedure permits no action to be taken on a complaint received more than six months from the date of the alleged violation. This prevents me from considering any alleged contravention that occurred prior to January 8, 2021. Occurrences before that date might, however, be relevant to whether violations occurred on or after that date.
Both parties raised additional issues not directly relevant to whether the Respondent breached section 7 and section 13 of the Code, including whether the Complainant did cut the Respondent’s vines, and whether the Complainant has the right to record activity using her front porch camera. I make no findings on those issues.
Issue A: Did Councillor Jones misuse her office or the influence of office, contrary to section 13.1?
No.
As I have explained, the evidence does not support a finding that the Respondent was using her office as Council Member to further her dispute with the Complainant. I have found that the Respondent’s only mention of her official position (“I am the law, practically”) was most likely an explanation of why she was obliged to respect the law.
I have carefully considered the Complainant’s position that, by insisting on speaking to the Complainant, even after the Complainant make clear communication was unwelcome, the Respondent was implicitly relying on her office as a Council Member. (According to the Complainant, “Janice felt that her role as a Ward 1 Councillor gives her authority to continue to come on my porch regardless if she was told to leave.”) I do not reach the same conclusion. In the absence of evidence connecting the conduct to the office of Councillor, the mere fact that somebody is a Council Member does not mean everything the Council Member does is an exercise of the influence, authority, or functions of office. In this case, there is no evidence connecting the Respondent’s conduct to her municipal office.
I find that nothing that occurred on June 15 related to the role, function, influence, authority, or responsibility of a Clarington Council Member. Nothing that occurred on June 15 related to business of the Municipality.
The evidence indicates that some issues between the Complainant and the Respondent pre-date the Respondent’s election to office in 2018. This reinforces the conclusion that the June 15 dispute was unconnected to the Respondent’s municipal office.
Issue B: Did the Code apply to Councillor Jones’s treatment of the Complainant?
No. I find that the Code does not apply to a Council Member’s treatment of another individual where that treatment has no connection to the office, role, function, influence, authority, or responsibility of a Council Member, and no connection to the interests or business of the Municipality.
I recognize that section 7 refers to Members’ conduct respecting other persons without expressly restricting its application to municipal-related conduct. Nonetheless, I believe that section 7 applies only on that limited basis.
The statutory basis for municipal codes of conduct is subsection 232.2(1) of the Municipal Act: “A municipality shall establish codes of conduct for members of the council of the municipality and of its local boards.” It is implicit that a code of conduct may only apply to conduct that is connected to or affects one’s office as a Council Member or member of a local board.
Nothing in the Municipal Act or in Ontario Regulation 55/18 (Codes of Conduct – Prescribed Subject Matters) expressly authorizes a code of conduct to address a Council Member’s private conduct.
I am aware that section 5.1 of the Council Code of Conduct appears to state something different. It provides that:
Every Member shall observe and comply strictly with every provision of this Council Code of Conduct, as well as all other policies and procedures adopted or established by Council affecting the member, whether or not acting in his or her capacity as a Member of Council. [emphasis added]
Do the underlined words truly mean that the Code of Conduct applies to the private lives of Council Members, unrelated to the Municipality? Was it Council’s intention that an Integrity Commissioner would have authority to make findings about whether somebody has been a good neighbour, friend, co-worker, spouse, parent, child, sibling, or community resident? Are Members to be subject to Council-imposed penalties if their personal lives are less than exemplary?9 This cannot be the case.
In my view, the words “whether or not acting in his or her capacity as a Member of Council” indicate that Council intends the Code to apply broadly, but not so broadly that the Code would apply to an incident that is unrelated both to the office, role, function, influence, authority, and responsibility of a Council Member, and to the interests and business of the Municipality.
The Code is a by-law; consequently, it is subject to principles of statutory interpretation.10 A provision of a statute cannot be interpreted in isolation; its words must be interpreted in the context of the statute as a whole.11 This means that the words of section 5.1 of the Code must be read in the context of the entire Code.
The Principles provisions of the Code, sections 1.1 and 1.2, are an important interpretative aid.12 They are akin to a purpose clause,13 and elucidate Council’s intention in enacting the Code:
PRINCIPLES
1.1 Improving the quality of Municipal administration and governance can best be achieved by encouraging high standards of conduct on the part of all municipal officials. In particular, the public is entitled to expect the highest standards of conduct from the members that it elects to local government. In turn, adherence to these standards will protect and maintain the Municipality’s and the Council members’ reputation and integrity.
1.2 Key statements of principles that underlie this Council Code of Conduct are as follows, members of Council shall,
(a) serve, and be seen to serve, their constituents in a conscientious and diligent manner;
(b) be committed to performing their functions with integrity, avoiding the improper use of the influence of their office, and conflicts of interest, under the Municipal Conflict of Interest Act;
(c) perform their duties in office in a manner that promotes public confidence and will bear close public scrutiny;
(d) recognize, and act upon, the principle that democracy is best achieved when the operation of government is made as transparent and accountable to members of the public as possible; and
(e) seek to serve the public interest by upholding both the letter and spirit of the laws of Parliament and the Ontario Legislature, as well as the by-laws and policies adopted by Clarington Council.
I note that these Principles sections of the Code refer exclusively to official municipal functions and duties: “Improving the quality of Municipal administration and governance … serve, and be seen to serve, their constituents … performing their functions … use of the influence of their office … perform their duties in office … the operation of government … seek to serve the public interest …” I also note that, except for section 5.1 and section 7, all the other provisions of the Code clearly refer to conduct that involves the business, staff, interests, meetings, information,14 and property of the Municipality, and the duties, service, influence, office, and position of a Member. The context of the entire Code supports the conclusion that section 5.1 and section 7 do not encompass private conduct unconnected either to the Municipality or to the office, role, function, influence, authority, or responsibility of a Member.
Also relevant are the various provisions of the Municipal Act that establish municipalities’ authority.
The “purpose” section, section 2, helps to interpret all the provisions of the Municipal Act:
Municipalities are created by the Province of Ontario to be responsible and accountable governments with respect to matters within their jurisdiction and each municipality is given powers and duties under this Act and many other Acts for the purpose of providing good government with respect to those matters.
Providing good government is a broad purpose, but not an unlimited purpose. Many aspects of the personal lives of people within municipal government do not affect the provision of good government.
The scope of municipal powers is to be interpreted broadly, according to subsection 8(1) of the Municipal Act:
The powers of a municipality under this or any other Act shall be interpreted broadly so as to confer broad authority on the municipality to enable the municipality to govern its affairs as it considers appropriate and to enhance the municipality’s ability to respond to municipal issues.
While a municipality has broad authority, that authority exists, “to enable the municipality to govern its affairs as it considers appropriate and to enhance the municipality’s ability to respond to municipal issues.”
The power to establish codes of conduct and to appoint Integrity Commissioners is included in sections 9, 10, and 11 of the Municipal Act.15 Section 10 applies to single-tier municipalities and does not affect Clarington. It is difficult to see how section 9 (natural person powers) creates authority to bind Council Members in their personal lives. Consequently, if such authority exists, it must reside in section 11.
The provisions of section 11 that establish authority are the following:
Broad authority, lower-tier and upper-tier municipalities
(1) A lower-tier municipality and an upper-tier municipality may provide any service or thing that the municipality considers necessary or desirable for the public, subject to the rules set out in subsection (4).
By-laws
(2) A lower-tier municipality and an upper-tier municipality may pass by-laws, subject to the rules set out in subsection (4), respecting the following matters:
Governance structure of the municipality and its local boards.
Accountability and transparency of the municipality and its operations and of its local boards and their operations.
Financial management of the municipality and its local boards.
Public assets of the municipality acquired for the purpose of exercising its authority under this or any other Act.
Economic, social and environmental well-being of the municipality, including respecting climate change.
Health, safety and well-being of persons.
Services and things that the municipality is authorized to provide under subsection (1).
Protection of persons and property, including consumer protection.
By-laws re: matters within spheres of jurisdiction
(3) A lower-tier municipality and an upper-tier municipality may pass by-laws, subject to the rules set out in subsection (4), respecting matters within the following spheres of jurisdiction:
Highways, including parking and traffic on highways.
Transportation systems, other than highways.
Waste management.
Public utilities.
Culture, parks, recreation and heritage.
Drainage and flood control, except storm sewers.
Structures, including fences and signs.
Parking, except on highways.
Animals.
Economic development services.
Business licensing.
Nothing in these subsections suggests that municipal authority extends to a Council Member’s personal conduct in a matter not affecting the municipality. Paragraph 2 of subsection 11(2) refers to “Accountability and transparency of the municipality and its operations and of its local boards and their operations” [emphasis added]. Unless a municipality is affected (which is not the case here), the personal life of a Council Member does not pertain to the municipality and its operations.
The remaining provisions of section 11, subsections 11(4) through 11(11), are not relevant to whether a municipality’s code of conduct may regulate the personal life of a Council Member in a matter not affecting the municipality.
I am aware that Canadian courts increasingly take a generous and deferential approach to interpreting the scope of municipal powers, and that the goal of the 2001 modernization of the Municipal Act was to give municipalities “the tools they need to tackle the challenges of governing in the 21st century.”16 However, nothing in the jurisprudence indicates that the Municipal Act makes it Clarington’s business how Councillor Jones treats a neighbour, so long as no municipal interest is affected.
The Ontario Court of Appeal says that “municipal powers … are to be interpreted broadly and generously within their context and statutory limits, to achieve the legitimate interests of the municipality and its inhabitants” [emphasis added].17 I underline the reference to “legitimate interests.” Unless it relates to Clarington’s interests, a Council Member’s personal life is beyond the scope of the Code.
There may exist situations in which an individual’s personal conduct affects a municipality – in other words, circumstances in which private conduct can have an impact on official duties. The jurisprudence on conduct makes clear, however, that the test for applying codes to personal conduct is strict.
For example, in the case of a school teacher, Ross v. New Brunswick School District No. 15,18 the Supreme Court of Canada explained that only in narrow circumstances will private conduct amount to professional misconduct:
It is on the basis of the position of trust and influence that we hold the teacher to high standards both on and off duty, and it is an erosion of these standards that may lead to a loss in the community of confidence in the public school system. I do not wish to be understood as advocating an approach that subjects the entire lives of teachers to inordinate scrutiny on the basis of more onerous moral standards of behaviour. This could lead to a substantial invasion of the privacy rights and fundamental freedoms of teachers. However, where a “poisoned” environment within the school system is traceable to the off-duty conduct of a teacher that is likely to produce a corresponding loss of confidence in the teacher and the system as a whole, then the off-duty conduct of the teacher is relevant. [emphasis added]
It should be noted that the Ross case dealt with virulent anti-Semitism, not an argument with a neighbour.
The passage that I have quoted focuses on whether public servants – in that case, teachers; in this case, municipal councillors – should have their “entire lives” subjected “to inordinate scrutiny on the basis of more onerous moral standards of behaviour.” Some may feel that elected officials should be subject to higher standards of conduct, in their personal lives, than other members of the community. That might be a relevant political issue, but it is not the legal issue here. The legal issue is whether a municipality possesses authority to impose penalties for what councillors’ do in their personal lives that does not affect the municipality. In my view, a municipality does not.
In Altmann v. The Corporation of the Town of Whitchurch-Stouffville, Justice Phillip Sutherland found that a council’s sanctions against a mayor were illegal for want of statutory authority, but also noted that the offending by-law “limited the applicant’s ability to be … a private citizen of the Town.”19
The events of June 15 did not involve the Respondent’s exercise or discharge of official functions, and did not involve her duties, service, or representation of the Municipality, as a Council Member. They did not in any way relate to Clarington’s interests.
The harassment, bullying, and discrimination provisions of the Code do not apply to the interaction between the Complainant and the Respondent. I find that section 7 of the Code did not apply to the Respondent’s conduct on June 15.
Issue C: Did the manner in which Councillor Jones treated the Complainant involve bullying, harassment, or discrimination, or otherwise contravene section 7?
Given the disposition of Issue B, it is unnecessary for me to address Issue C.
The Code does not apply to Councillor Jones in her personal capacity, living her life as a resident of the community, in matters not affecting the interests of Clarington. Consequently, I have no business commenting on what the Respondent does in her personal life unrelated to the Municipality. For an Integrity Commissioner to offer an opinion on behaviour that is not subject to the Code of Conduct would be gratuitous and inappropriate.
Content
- Subsection 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
Municipality of Clarington
April 5, 2022
Appendix: Excerpts from Code of Conduct for Members of Council
- PRINCIPLES
1.1 Improving the quality of Municipal administration and governance can best be achieved by encouraging high standards of conduct on the part of all municipal officials. In particular, the public is entitled to expect the highest standards of conduct from the members that it elects to local government. In turn, adherence to these standards will protect and maintain the Municipality’s and the Council members’ reputation and integrity.
1.2 Key statements of principles that underlie this Council Code of Conduct are as follows, members of Council shall,
(a) serve, and be seen to serve, their constituents in a conscientious and diligent manner;
(b) be committed to performing their functions with integrity, avoiding the improper use of the influence of their office, and conflicts of interest, under the Municipal Conflict of Interest Act;
(c) perform their duties in office in a manner that promotes public confidence and will bear close public scrutiny;
(d) recognize, and act upon, the principle that democracy is best achieved when the operation of government is made as transparent and accountable to members of the public as possible; and
(e) seek to serve the public interest by upholding both the letter and spirit of the laws of Parliament and the Ontario Legislature, as well as the by-laws and policies adopted by Clarington Council.
- ADHERENCE TO COUNCIL POLICIES AND PROCEDURES
5.1 Every member shall observe and comply strictly with every provision of this Council Code of Conduct, as well as all other policies and procedures adopted or established by Council affecting the member, whether or not acting in his or her capacity as a member of Council
- CONDUCT RESPECTING OTHERS
7.1 Every member has the duty and responsibility to treat all members of the public, other members of Council, and all staff appropriately and without abuse, bullying or intimidation, and to ensure that the work environment is free from discrimination and harassment.
7.2 No member shall use indecent, abusive or insulting-words or expressions toward any other member, any member of staff or any member of the public.
7.3 No member shall engage in Harassment of anyone. The Human Rights Code defines Harassment as “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.”
7.4 No member shall engage in Discrimination against anyone on the basis of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability (the list of prohibited grounds of discrimination in the Human Rights Code).
7.5 Sections 7.3 and 7.4 shall be interpreted in a manner consistent with the Human Rights Code.
7.6 The following examples of Harassment are illustrative only and not exhaustive:
(a) Examples [of] Harassment in the workplace include:
Physically abusive or aggressive behaviour such as pushing, hitting, finger pointing or standing close to the victim in an aggressive manner
Using intimidating or disrespectful body language
Verbally abusive behaviour such as yelling, insults, intimidating comments and name calling
Spreading malicious rumours
Excluding or ignoring the victim
Making little or no eye contact with the victim and refusing to engage in common pleasantries
Sabotaging the victim’s work or claiming credit for it
Repeatedly blaming another for mistakes
Making false allegations in memos or other documents
Undermining the victim’s efforts by setting impossible goals and deadlines and impeding an employee’s efforts at promotions or transfers
Persistent excessive and unjustified criticism and constant scrutiny by a supervisor
Engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome
Making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome
Reprisal or threat of reprisal by a person in a position to grant or deny a benefit to a person who has rejected his or her sexual proposition
Unnecessary or unwanted physical contact, ranging from touching, patting or pinching to physical assault
Leering or other suggestive gestures
Displaying, sending or communicating electronically or by any other means pornographic pictures or other offensive, sexually explicit material
Practical jokes of a sexual nature, which cause awkwardness or embarrassment
Compromising invitations
Unwelcome remarks, jokes or insults about a person’s physical appearance, attire, race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability
The displaying of racist, derogatory or otherwise offensive material
Insulting gestures or practical jokes, or other action that causes embarrassment, based on grounds of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability
A refusal to converse or work with an individual because of his or her race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability
(b) The following examples, relative to employees who report directly to Council, do not constitute Harassment, providing they are undertaken without malice or intent to intimidate or undermine:
Performance reviews
Work assignments
Work evaluation
Disciplinary measures taken by the employer for valid reasons
Reasonable action taken by an employer or supervisor relating to the management and direction of workers or the workplace is not workplace harassment
7.7 In the course of investigating a complaint that alleges Harassment or Discrimination, the Integrity Commissioner may make interim reports to Council, including interim reports that recommend measures to protect the complainant or to maintain the integrity of the investigation.
- NO IMPROPER USE OF INFLUENCE
13.1 No member shall,
(a) use the influence of his or her office for any purpose other than for the lawful exercise of his or her official duties and for municipal purposes;
(b) use his or her office or position to influence or attempt to influence the decision of any other person, for the member’s private advantage or that of the member’s parent, child, spouse, staff, friend, or associates, business or otherwise;
Footnotes
- The first recording shows the Respondent and Other Adult standing on the Complainant’s porch at 7:18 p.m. when the recording commenced. Consequently, I conclude that, on their second trip to the Complainant’s door, the Respondent and Other Adult arrived at or shortly before 7:18.
- On the first recording, the Respondent rings the doorbell at 7:18, 7:19, 7:20, 7:21, 7:23, 7:25 and 7:26.
- The first recording shows the Respondent leaving the porch at 7:26:29, and shows the Other Adult leaving about 4 seconds later.
- The events took place in the evening, but it was mid-June, so there was still full daylight.
- The recordings display time in one-second intervals. For ease of reading, this report refers to time only in hours and minutes. Timed to the second, the first recording runs from 7:18:20 to 7:28:54.
- The video shows only one police constable.
- I find it possible, but unlikely, that the male individual on the phone was as far as 62 km away. If he was somewhere within the urban area of the Municipality of Port Hope, that is, within the pre-amalgamation boundaries of the former Town of Port Hope, then he was between 42 km and 48 km away. If he was elsewhere in the Municipality of Port Hope, that is, within the pre-amalgamation boundaries of the Township of Hope, then he was at most 62 km away.
- The male individual who spoke about kicking open the Complainant’s door, and pulling the eavestrough off the roof, claimed at 7:24 p.m. to have been in Port Hope. Name2’s Chevy Blazer arrived at 7:34 p.m.
- Code of Conduct contraventions are subject to penalties, as determined by Council, within the boundaries of subsection 223.4(5) of the Municipal Act.
- Re Durham Region (Council Member), 2018 ONMIC 3, at para. 33.
- Ontario v. Canadian Pacific Ltd., 1995 CanLII 112 (SCC), [1995] 2 SCR 1031, at 1050, per Lamer C.J.C.
- Re Kett (No. 2), 2017 ONMIC 14, at para. 152.
- Oceanex Inc. v. Canada (Transport), 2018 FC 250, at para. 337; T.L. v British Columbia (Attorney General), 2021 BCSC 2203, at para. 20.
- This includes information possessed by and received by the Municipality.
- Municipal Act, subs. 232.2(2), subs. 223.3(1).
- Croplife Canada v. Toronto (City), 2005 CanLII 15709 (Ont. C.A.), at paras. 33-34.
- Ibid., at para. 37.
- 1996 CanLII 237 (SCC), 1996] 1 S.C.R. 825, at para. 45.
- 2018 ONSC 5306, at para. 44.