Court File and Parties

Ontario Court of Justice

Date: 2015-10-01

Court File No.: Regional Municipality of Durham 14 1592

Between:

City of Oshawa

— AND —

Hugh Lee and Patricia Lee

Before: Justice of the Peace M. Coopersmith

Heard on: December 18, 2014 and April 2, 2015

Reasons for Judgment released on: October 1, 2015

Counsel:

• R. Vanderlinde, for the prosecution
• The defendant Hugh Lee on his own behalf and on behalf of Patricia Lee

JUSTICE OF THE PEACE COOPERSMITH:

[1] Charge

Patricia Lee and Hugh Lee have been charged under Part III of the Provincial Offences Act, RSO 1990, c. P.33, as amended ["POA"] that on November 28, 2013, at 1988 Walreg Drive in Oshawa, they "Did apply Excessive Protective Elements to Land", contrary to section 2.2(b) of the City of Oshawa By-law 103-2005, thereby committing an offence under s.7.1 of that By-law.

I. BACKGROUND AND ISSUES

[2] On December 18, 2014, Municipal Law Enforcement Officer Macartan Phelan, from the City of Oshawa, gave evidence on behalf of the prosecution. On April 2, 2015, Hugh Lee testified on behalf of both defendants. Also on that day, I heard submissions from the parties.

[3] The issue to be decided is whether Mr. and Mrs. Lee applied excessive protective elements to their property located at 1988 Walreg Drive in Oshawa, in the form of numerous visual surveillance cameras attached to their property.

II. SUMMARY OF EVIDENCE

a.) Evidence of Municipal Law Enforcement Officer Macartan Phelan:

[4] In response to a complaint filed with the City of Oshawa, on June 4, 2013, Municipal Law Enforcement Officer Phelan attended at 1988 Walreg Drive in Oshawa. Documentary evidence submitted at trial disclosed that Patricia Lee then was the owner of this property. She resided there with her husband, Hugh Lee.

[5] Officer Phelan investigated the property to determine whether there was excessive fortification with video surveillance cameras. He re-attended on June 7, 2013, June 14, 2013 and September 16, 2013. At each visit, he observed surveillance cameras attached to this single, detached dwelling and to other areas on the property. There were eight cameras on the front of the building, one camera on the south side, one on the fence at the northwest portion of the back yard and one surveillance camera affixed to a rear yard television antenna tower. Officer Phelan's photographs showing the camera locations were entered as exhibits.

[6] Scattered about the property, on the front window, south basement window and side gate, for example, were signs that read:

• "No Trespassing"

• "Further warning May 17, 2013 - Section 264 of the Criminal Code and other sections clearly states [sic] these within actions are so considered stalking and provocative and security threats. Video surveilance [sic] of factual evidence and other can and will be used in a court of law both criminal and civil action."

• "Warning – 24 hr video surveillance"

• "Notice – Video surveillance in use on these premises"

• "Extreme High Crime Detection is in Effect"

• "CCTV is not the Prevention of Crime, but Crime Detection and Prosecution"

• "This private property & fence is [sic] enforced by video surveillance. This is not a public thruway or thoroughfare. Boundary line is 6" left of fence. Resident has no permission or authority whatsoever to violate this boundary. Persons entering this private sideyard on behalf of resident could be considered part of resident's continuance actions. Also could be considered and served court subpoena as witnesses should action be decided or taken."

[7] At each visit to inspect 1988 Walreg Drive, Officer Phelan's requests for entry into the dwelling were denied and Mr. Lee insisted that the officer was trespassing. Consequently, Officer Phelan applied for and was granted a search warrant, which was executed on November 28, 2013. Once inside the dwelling house, Officer Phelan observed eleven live images on a television, representing the view of each of the eleven video surveillance cameras located on the defendants' property. As well, on a monitor screen in a second floor office, he observed that it was possible to rotate the camera attached to the television antenna tower three hundred and sixty degrees, providing a bird's eye view well beyond the defendants' property.

[8] A series of photographs Officer Phelan took on November 28, 2013 clearly illustrate that, in addition to observing their own property, the defendants' surveillance cameras showed views well beyond the perimeter of 1988 Walreg Drive in Oshawa. For example, the cameras peered into properties across the street, the neighbours' property to the south, numerous front yards running to the north and the sideyard between the defendants and their neighbours to the south. They displayed properties down the entire east/west length of Samac Trial, which is across the street from the defendants' property and runs perpendicular to Walreg Drive. The camera attached to the television antenna tower was capable of viewing the rear yards adjacent to the defendants' property and beyond, into the plaza located on the southeast corner of the intersection at Simcoe Street North and Conlin Drive in Oshawa.

[9] After seeing the images the defendants' surveillance cameras captured and the excessiveness of their views well beyond the perimeter of 1988 Walreg Drive, Officer Phelan was satisfied that Mr. and Mrs. Lee had violated the City of Oshawa's Fortification By-law by applying excessive fortification elements on their land.

b.) Evidence of Mr. Hugh Lee:

[10] In his evidence, Mr. Lee advised that he and his wife had resided at 1988 Walreg Drive for over twenty years. For more that fifteen years, they had been subjected to harassment by their neighbours living at 1984 Walreg Drive. These neighbours had intentionally falsified documents and perjured in the search warrant, aided and abetted the Municipal Law Enforcement Officer and got the neighbours together to conspire against the Lees. He commenced his testimony by stating, "The charge I can handle right now. Not a problem. We can knock this out today. I'll be done in two minutes or very quickly. The action I'm mostly interested in is the uumh – I can prove the City had prior knowledge – I can prove also Judge Duncan P. Read was perjured when they brought this wrongful charge. You see, Judge, there is more that the charge. The charge is secondary to me. The charge is not the priority to me. It's the conduct and everything else." I informed Mr. Lee that I do not judge on conduct, I judge on the law and, on several occasions I reminded him to focus on the issues before the court.

[11] Mr. Lee explained that he had been subject to break and enters, his neighbour digging up the ground at the property line, vandalism and harassment from his neighbours, flooding in his basement from the eavestrough downspout in the south side yard being kicked out of place. He also insisted that the officers were repeatedly trespassing when coming onto his property and that such actions were without authority and were criminal. Mr. Lee repeated that he knew the law and that fortification by-laws do not apply to private property. The cameras were put up to protect him and his family. He did not have the video cameras monitor only on his property, as they would not capture crime or be aimed for protection that way.

[12] Mr. Lee provided over eighty photographs taken by him or by his video surveillance camera system, some of which were taken as far back as 1997 or 1998 when he advised that someone had keyed his motor vehicle, such action initiating his thinking about putting up security cameras. He opined as to what the photographs depicted, including rage by his neighbour who is shown using a shovel to dig by the property line and a prowler at night in the form of someone walking in the dark on the sidewalk in front of the defendants' house. I also saw photographs of his neighbours standing on their side of the side yard between the houses, gesturing with their middle fingers at the side yard surveillance camera which peers down into and along the side of the neighbours' home.

[13] Mr. Lee stated that this proceeding is such an invasion and has trampled on their privacy rights. The neighbours pushed them out of the neighbourhood, leaving them with no option but to sell what they had hoped would be their retirement home.

III. SUBMISSIONS OF THE PARTIES

a.) Prosecution Submissions:

[14] The prosecution submits that, on November 28, 2013, both of the defendants had contravened By-Law 103-2005 of The Corporation of the City of Oshawa at their residence at 1988 Walreg Drive in Oshawa. Patricia Lee was on title to the property at that time and Hugh Lee, who lived there with his wife, had installed, directed and monitored the eleven cameras attached at various sites on their property. The defendants' video surveillance system annoyed the neighbours as it went well beyond the perimeter of the defendants' property, into the neighbours' side yard, their backyards, their front yards and down the streets. It upset the neighbours' rights to privacy in their own homes and on their own properties. It went well beyond "reasonable protection", as provided in s.4.1(a) of this By-law 103-2005. By viewing beyond the perimeter of their own property, the defendants' video surveillance equipment is captured by the definition of "Excessive Protective Elements" found in s.1.1(m)iii) of the City's Fortification By-law.

[15] In response to the defendant's claim of illegal searches and trespass by the City of Oshawa, the City's powers come from the "Power of entry re inspections" found in s.436(1) of the Ontario Municipal Act. This provision enables the City to pass by-laws to "enter on land at any reasonable time for the purpose of carrying out an inspection to determine whether or not" there is compliance with a "by-law of the municipality passed under this Act". By-law 64-2008 of The Corporation of the City of Oshawa is a by-law "providing powers of entry for the purpose of inspection". It echoes the words of s.436(1) of the Municipal Act. Furthermore, s. 437 of the Act allows entry into the dwelling, inter alia, in accordance with a search warrant and By-law 64-2008 again echoes these provisions.

b.) Defence Submissions:

[16] Mr. Lee submits that the City never mailed out a notice that there was a problem. Section 2.2 of the City's Fortification By-law does not describe what constitutes reasonable fortification. If one has break-and-enters, harassing neighbours and vandalism, then this is criminal. If one studies the cameras' angles, one will find that there are blind spots. If someone is going to break and enter, one cannot stop it, but with the cameras, there is video evidence to assist the police. The neighbours are threatening, harassing, bullying and stalking as per section 264 of the Criminal Code, as well as conspiring with other residents to file complaints against the defendants. The cameras are to keep the defendants protected from these activities.

[17] Mr. Lee argues that the City of Oshawa Fortification By-law conflicts with the Ontario Building Code and this provincial Code is the superior document, prevailing over the municipal By-law. A fortification by-law is applicable only during times of demolition and construction. The charge against them is excessive fortification, but this does not apply to private land. There is no right of government on private land absent an agreement or a covenant registered on title to the property.

[18] Moreover, Mr. Lee claims that City Council needs to fix this By-law, as it contravenes the Building Code. Hence, the By-law is void and of no effect under the Constitution. I advised Mr. Lee that I have no jurisdiction to strike down the By-law and that such application is brought before the Ontario Superior Court of Justice.

[19] Mr. Lee continued his submissions by reading from a twenty-two page Affidavit he and Mrs. Lee swore on March 30, 2015, along with some case law. Starting at paragraph 41 of their affidavit, the defendants speak of "intentionally false one sided statements, conspiracy, stories" and "incompetence and ignorance of law for Mr. Phelan to act on complainant's advice. In addition to withholding or suppressing evidence to the court and the excuse used to obtain search warrant to break in our home 1988 Walreg Drive November 28, 2013. Versus Factual Videos, Photos and Proof of Evidence." The affidavit recounts numerous incidents where the defendants believe they had wrongs against them by various parties. They often portrayed incidents as major harms to and hostilities against them. Also as a basis for his submissions, he referenced "Property Standard By-Laws: What Municipal Councils Need to Know – a report created by the Research Team of the Ontario Landowners Association, November 2012".

IV. RELEVANT LEGISLATION, FINDINGS AND ANALYSIS

[20] I have given all of the evidence and all of the submissions my full consideration. I will focus my findings and analysis only on those issues which are relevant to the matter before me.

a.) Was Municipal Entry onto Defendants' Land and into Their Dwelling Lawful?

[21] The defendants claim that, on several occasions, Mr. Phelan and other municipal employees trespassed on their property. Mr. Phelan testified that he was on the property at 1988 Walreg Drive in Oshawa on four occasions in 2013 – June 4, June 7, June 14 and September 13. At no time did he enter the dwelling. The purpose of these visits was to inspect the property for excessive fortification. He asked for, but was refused entry into the dwelling. Hence, he applied for and was granted a search warrant, which he executed on November 28, 2013.

[22] Section 436(1) of the Municipal Act, 2001, S.O. 2001, c.25, as amended reads:

436. (1) Power of entry re inspection. – A municipality has the power to pass by-laws providing that the municipality may enter on land at any reasonable time for the purpose of carrying out an inspection to determine whether or not the following are being complied with:

437. A By-law of the municipality passed under this Act.

438. A direction or order of the municipality made under this Act or made under a by-law of the municipality passed under this Act.

439. A condition of a licence issued under a by-law of the municipality passed under this Act.

440. An order made under section 431.

[23] On May 12th, 2008, The Corporation of the City of Oshawa passed By-Law 64-2008, a by-law providing powers of entry for the purpose of inspection. Section 2 of this By-law states:

2. Subject to section 3, an Officer may enter on land and into a Building at any reasonable time for the purpose of carrying out an inspection to determine whether or not any of the following are being complied with:

(a) A By-law;

(b) A direction or order of the City made under the Municipal Act or made under a By-law;

(c) A condition of a licence issued under a By-law; or

(d) An order made under section 431 of the Municipal Act.

[24] I am satisfied that Officer Macartan Phelan is a Municipal Law Enforcement Officer with the City of Oshawa and held that position in 2013. A complaint was made regarding excessive fortification on the defendants' property. Therefore, I am satisfied that Officer Phelan had legislative authority under subsection 436(1) of the Municipal Act, 2001 and under section 2 of Oshawa's By-law 64-2008, to come onto the defendants' property in order to inspect whether or not there was compliance with By-law 103-2005 of The Corporation of the City of Oshawa – a by-law passed by Oshawa City Council on July 18, 2005 in respect of the fortification of and protective elements applied to land. I find, therefore, that Officer Phelan was not trespassing on the defendants' property during any of his inspections between June and September 2013. Moreover, subclause 436(2)(d) of the Municipal Act, 2001 permits by-laws passed under subsection 436(1) that provide the municipality with the inspection powers "alone or in conjunction with a person possessing special or expert knowledge, make examinations or take tests, samples or photographs necessary for the purpose of the inspection." Subsection 4(d) of Oshawa's By-Law 64-2008 echoes this subclause and, thus, provided Officer Phelan the authority to take photographs during his inspection of the defendants' property.

[25] On November 28, 2013, Officer Phelan and others from the municipality entered into the defendants' residence at 1988 Walreg Drive in Oshawa. Section 437 of the Municipal Act, 2001 provides:

437. Restriction re dwellings. – Despite any provision of this Act, a person exercising a power of entry on behalf of a municipality under this Act shall not enter or remain in any room or place actually being used as a dwelling unless,

(a) the consent of the occupier is obtained, the occupier first having been informed that the right of entry may be refused and, if refused, may only be made under the authority of an order issued under section 438, a warrant issued under section 439 or a warrant under section 386.3;

(b) an order issued under section 438 is obtained;

(c) a warrant under section 439 is obtained;

(d) a warrant issued under section 386.3 is obtained;

(e) the delay necessary to obtain an order under section 438, to obtain a warrant under section 439 or to obtain the consent of the occupier would result in an immediate danger to the health and safety of any person; or

(f) the municipality has given notice of its intention to enter to the occupier of the land as required under subsection 435(2) and the entry is authorized under section 79, 80 or 446.

[26] The Lees would not consent to Officer Phelan's request for entry into their home. On November 28, 2013, Officer Phelan applied for and obtained a search warrant in accordance with the requirements under the legislation.

[27] In support of his argument regarding unlawful trespass, Mr. Lee provided the Court with the Ontario Court of Appeal decision, The Corporation of the Township of Georgian Bluffs v. James Moyer, 2012 ONCA 700, in which the Township unlawfully entered upon private property and removed chattels. No mention was made in that case of a search warrant having been obtained and the purpose of entry onto that land went beyond inspection. Hence, I find it is easily distinguishable from the facts in this matter before me.

[28] For all of these reasons, I do not agree with the defendants that such entry into their home was illegal, unconstitutional or an invasion of their rights to privacy. Such entry onto their property was in full compliance with section 436 of the Municipal Act, 2001 and Oshawa's By-law 64-2008. And legitimate right of entry into the defendants' dwelling was in full compliance with section 437 of the Municipal Act, 2001.

b.) Were the Defendants in Compliance with Oshawa's Fortification By-law?

[29] Section 133 of the Municipal Act, 2001 reads:

133. (1) Fortification of land. – Without limiting sections 9, 10 and 11 a municipality that is responsible for the enforcement of the Building Code Act, 1992 may,

(a) regulate in respect of the fortification of and protective elements applied to land in relation to the use of the land; and

(b) prohibit the excessive fortification of land or excessive protective elements being applied to land in relation to the use of the land.

(2) Definitions. – In this section,

"land" means land, including buildings, mobile homes, mobile buildings, mobile structures, outbuildings, fences, erections, physical barriers and any other structure on the land or on or in any structure on the land;

"protective elements" include surveillance equipment.

(3) [Repealed]

(4) By-law and building code. – A permit shall not be issued under the Building Code Act, 1992 if the proposed building or construction or use of the building will contravene a by-law to which this section applies.

(5) Conflict. – Despite section 35 of the Building Code Act, 1992, if there is a conflict between the building code under the Building Code Act, 1992 and a by-law to which this section applies, the building code prevails.

(6) Period for compliance for existing fortifications. – If a municipality makes an order to do work under subsection 445(1) with respect to a contravention of the by-law, the order shall give not less than three months to complete the work if the fortifications or protective elements were present on the land the day the by-law is passed.

[30] I am satisfied that The Corporation of the City of Oshawa does enforce the Building Code, 1992 and, without limiting its general municipal powers under sections 8, 9 and 10 of the Municipal Act, 2001, it has legislative authority to pass fortification by-laws. On July 18, 2005, Oshawa's City Council passed By-Law 103-2005 of the Corporation of the City of Oshawa to "regulate in respect of the fortification of and protective elements applied to land in relation to the use of land, and to prohibit the excessive fortification of land or excessive protective elements being applied to land in relation to the use of the land."

[31] I have reviewed the provincial legislation and the City's Fortification By-law. I can find no conflict between them. Hence, for the purposes of analysing the specific charge before me, I dismiss Mr. Lee's argument that the City's By-law is void, and that only the Building Code, 2001 is the superior and good law.

[32] The defendants are charged with contravention of section 2.2(b) of By-Law 103-2005, which reads:

2.2 Subject to the provisions of this By-law, no person shall;

(b) Apply Excessive Protection Elements to Land;

[33] Section 1.1(m) defines "Excessive Protective Elements". The portion of that provision relevant to this proceeding reads:

1.1(m) "Excessive Protective Elements" means devices, objects, material components, or any contrivance applied to Land and includes but is not limited to the Application of:

iii) visual surveillance equipment, including video cameras, night vision systems, or electronic surveillance devices capable of permitting either stationary or scanned viewing or listening beyond the perimeter of the Land.

[34] "Land" is defined in section 1.1(p):

1.1(p) "Land" means land, buildings, mobile homes, mobile buildings, mobile structures, outbuildings, fences, erections, physical barriers and any other structure on the land or on or in any structure on the land;

[35] Section 2.1 circumscribes the application of the By-law and any exemption to it, as follows:

2.1 This By-law applies to all Land within Oshawa unless specifically exempted by this By-law or by statute or regulation.

[36] Mr. Lee is prone to taking things out of context or simply does not understand the law or legal principles to which he refers. Consequently, he draws his own unfounded conclusions. For example, he failed to contextually understand the concept of a municipality as possessing powers of a "natural person" in exercising its authority. He used parts of the Ontario Land Owners Association Report to ground his submission that "Fortification By-laws can only be implemented on 'public properties' and not on private properties." I do not accept Mr. Lee's submissions that fortification by-laws do not apply to private property, only to public lands. The definition of "Land" in Section 1.1(p) of Oshawa's Fortification By-law 103-2005 does not distinguish between public and private lands. Section 2.1 expressed the application of the By-law to all land within the City, unless it is expressly exempted by legislation. Therefore, I find the Lee's property at 1988 Walreg Drive in Oshawa is captured by the By-law's definition of "Land".

[37] Under subsection 49(3) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended, the onus is on the defendant to prove an exemption prescribed by law. It reads:

47. (3) Burden of proving exception, etc. – The burden of proving that an authorization, exception, exemption or qualification prescribed by law operates in favour of the defendant is on the defendant, and the prosecutor is not required, except by way of rebuttal, to prove that the authorization, exception, exemption or qualification does not operate in favour of the defendant, whether or not it is set out in the information.

[38] I find no authorization, exception, exemption or qualification afforded the defendants under section 3 of By-Law 103-2005, or anywhere else prescribed by law. Hence, I am satisfied that the defendants' property at 1988 Walreg Drive in Oshawa was subject to section 2.2(b) of By-Law 103-2005 on November 28, 2013.

[39] The scope and limitation of the By-Law is circumscribed in section 4. Subsection 4.1(a) states:

4.1 Section 2.2 does not prohibit:

(a) the use or Application of commercially marketed security devices designed and applied to provide reasonable protection from theft or other criminal activity against a Person or property of a Person.

[40] The term "reasonable protection" is not defined in the City's By-law 103-2005. Hence, applying a contextualized and plain meaning to these words, I am of the opinion that the words refer to adequate fortification that will afford the protection necessary to keep people and their property from theft or other criminal activity. I accept that over the years the defendants experienced a break and enter into their dwelling and other incidents of vandalism to their property. I do not find the meaning of "reasonable protection" to include protection from incidents or harassment of trivial importance, such as annoyed neighbours making faces and waving their middle fingers at the intrusive surveillance cameras aimed down the side of their home. In a residential area, for example, the public interest in reasonable enjoyment of and privacy in one's property is not served if excessive protective elements, such as video surveillance cameras capable of monitoring neighbours' activities in their own homes and on their own yards, are present.

[41] The City's Fortification By-Law 103-2005 serves to balance such public interest within residential neighbourhoods with the private interests of residents to protect their own property from theft or other criminal activity. The By-Law suffices to allow people to protect themselves and their property from theft or other criminal activities, but it also limits the use of protective elements, such as video surveillance systems, to no more than is required for such protection. In defining "Excessive Protective Elements" to capture visual surveillance equipment, including video cameras … capable of permitting either stationary or scanned viewing … beyond the perimeter of the Land", Oshawa's By-Law strikes a reasonable balance between private and public interests by affording its residents the right to monitor for theft or other criminal activity on their own respective properties, while serving the public interest of privacy and peaceful enjoyment by residents on properties in relatively close proximity to such video surveillance equipment.

V. CONCLUSION

[42] On November 28, 2013, Patricia Lee was still registered on title as the owner of 1988 Walreg Drive in Oshawa. She resided there with her husband, Hugh Lee, who had affixed eleven video surveillance cameras to various locations on their property. The television monitors inside their home clearly illustrated that what these surveillance cameras viewed went well beyond the perimeter of their property at 1988 Walreg Drive in Oshawa. The Lees' cameras peered into neighbours' back yards, side yards, front yards, down the entire east/west length of Samac Trial and onto the plaza located at the intersection of Conlin Road East and Simcoe Street North. From evidence of the search warrant at 1988 Walreg Drive on November 28, 2013, it is not difficult to find that the defendants applied excessive protective elements to their land. Their surveillance cameras captured much more than what is reasonably appropriate in order to protect the Lees and their property from theft and other criminal activity. The defendants have been overbroad in their application of their video surveillance cameras. Such application goes beyond reasonable protection from theft or other criminal activity and has served, inter alia, to annoy the neighbours who find their rights to reasonable enjoyment and privacy on their own properties have been violated, as their every move on parts of their property are captured and recorded by the Lees' video cameras. There is irony in the defendants' claims of trespass and violation of their rights to privacy, as the invasiveness of the defendants' excessive installation of their video surveillance cameras treads into neighbours' yards and, hence, into neighbours' reasonable expectation of privacy and enjoyment on their respective properties.

[43] Accordingly, I am satisfied that all of the elements of section 2.2(b) of Oshawa's By-Law 103-2005 have been made out beyond a reasonable doubt. No exception to the By-Law has been proven by the defendants.

[44] Section 7.1 of the City's By-law 103-2005 creates an offence, as follows:

7.1 Each Person who contravenes any provision of this By-law is guilty of an offence and upon conviction is liable to the penalties from time to time prescribed by the Provincial Offences Act, R.S.O. 1990, c. P.33.

[45] Having contravened section 2.2(b) of the By-Law, I find the defendants guilty of an offence under section 7. A conviction will be registered.

Released: October 1, 2015

Signed: "Justice of the Peace M. Coopersmith"