by Gary McHale - The Regional
August 10, 2011
I would be the first to say that I have not always seen eye to eye with Mayor Hewitt, especially when he opposed the Class Action in 2006, but I do believe that Hewitt wants to help his community. The problem is that in our modern society people try too hard to appease every special interest group in order to get along with everyone.
However, true leadership must make the hard decisions that will offend someone. As a leader you cannot ever make a decision that everyone will agree with. The sooner Hewitt understands that the buck stops at his office the sooner he can step forward and tell the province that they can no longer treat Haldimand Council as children.
As long as council acts like children the longer the province will insist that Haldimand has no authority to make its own decisions. I believe Mayor Hewitt wants to do what is right but lacks the understanding of what is possible if council refuses to be treated as children. He lacks the courage of his own convictions and needs the support of the community that will loudly say, "We will support you if you take a stand."
The Crown in court stayed proceedings against senior OPP officers for not suppressing the riot in 2006 because they stated "the Mayor failed" her duty by not reading out the riot act to Native Protesters. The fact that ex-Mayor Trainer wasn't encouraged by the OPP, or told by Haldimand's lawyer, that she had the authority to bring the riot to an end by simply reading out the Riot Act appears to escape everyone's notice. Simply put the OPP and province doesn't want Haldimand to find out what authority it has. The Crown will blame Haldimand Council for failing their duty in order to cover for OPP officers.
Mayor Hewitt believes he has no say regarding illegal smoke shacks, no say regarding policing even though he sits on the police service board, no say in windmills, no say in what happens regarding DCE, no say in the enforcement of by-laws etc. The problem is this is not true at all.
Police Service Boards "PSB" are legally obligated to ensure quality policing services in the community. Technically PSBs are the employer of every single police officer and PSBs are required by law to ensure police enforce the law. In fact, any failure in law enforcement can result in PSBs being sued.
PSBs across Ontario are sued on a regular basis for the failure of police officers. One of the most famous cases is called the Jane Doe case in Toronto whereby she sued the Toronto PSB because the police failed to warn the public of a serial rapist in the area and she won.
At the height of the violence in 2006 the HPSB didn't raise the issue about the OPP's refusal to enforce the law. However, they did raise the issue about the sudden drop in traffic tickets. They wanted the OPP to issue more tickets but didn't tell the OPP to stop criminal behaviour. The mere fact that the HPSB was dealing with the decrease in traffic tickets shows that they can direct police in the community - that is the whole purpose of having a PSB so that local concerns are addressed by police.
I guess the only way for Council to learn that HPSB has the authority to control the OPP is for someone to sue HPSB for their failure to provide proper policing.
Another shocking truth is the complete lack of understanding by council regarding the benefits of issuing by-law infraction notices to the provincial government. Once again council sees themselves as the child in the relationship with the province.
First, by issuing by-law infraction notices the province is repeatedly reminded of their failure to ensure occupiers obey the law.
Second, notices are legal documents which can be used by any lawyer suing the province for their failure to uphold the law. The Council cannot imagine the number of times I have been asked by a judge or a government lawyer what proof I have the smoke shops are there illegally - the answer is there is no proof because the County refuses to document the violations.
Third, the Class Action would have received more money if Findlay was about to walk into court with hundreds of documented cases of by-law violations.
Fourth, Mayor Hewitt could arrange with Toby Barrett to book Queen's Park Media Room two weeks before the upcoming election and show the media the number of times McGuinty has refused to honour the law. However, now there is no proof any laws have been violated.
Fifth and most importantly, the Ontario Court of Appeal in 2006 may have upheld Judge Marshall's ruling against the occupiers if the County had the courage to step forward and document what was happening. Instead, County lawyers allowed the Appeals Court to believe that no one by-law was being violated due to the occupation of DCE. The Appeals Court stated:
"The Ontario government stands in Henco’s shoes. If it wanted to do so, it may have been entitled to enforce the injunction against the protestors. But it does not want to do so. Instead, Ontario is content to permit the peaceful occupation of its property. It has the right to do so. As a property owner it has the right to use its own land as it sees fit, as long as it complies with municipal by-laws and the laws concerning nuisance and public safety. Ontario has complied with its legal obligations. The record does not show that by permitting the protestors to remain, the government has breached any municipal requirements, created a nuisance or adversely affected public safety."
Lawyers for Haldimand County were at the Appeals Court and they allowed the court to believe that the McGuinty government was obeying all municipal by-laws. As the court stated "the record does not show..." because council refuses to create the record.
Continued next week