Dear Editor:
Mr. (Joe) Kowalski, (publisher of whitewaternews.ca):
Last week, your editor Connie Tabbert wrote an article(Justice of the Peace steps down, published May 28,2015) respecting a court case in Pembroke involving two residents in Whitewater Twp wherein she used my Letter to the Editor published April 8th in the Eganville Leader as a source to write her article. It would be appreciated if you could allow me to respond to her article and clarify some of the information reported.
Since my last Letter to the Editor “Dog Tags Are Principle Issue” in the April 8th edition of a local newspaper where two residents were awaiting the results of their 14th appearance in court of a decision as to whether or not the case would be ruled “dismissed” or “proceed to trial”, the Justice of the Peace surprisingly stepped down. It seems my “Letter to the Editor” created a controversy not only with the Prosecution but also with a reporter from the local online paper, that never attended any of the previous court hearings, but who appeared to be more focused on my Letter to the Editor then the case itself. The letter was written specifically with no names mentioned, because the intent was not to embarrass anybody but rather to inform the public of my personal experience that I witnessed in this court and my frustrations with the waste of taxpayer dollars on a case that should have been resolved months ago. However to clarify some of the confusing statements reported in her online paper, the Justice of the Peace recused himself from this case based on the County Bylaw 26-00 “Conflict of Interest for Municipal Officials and Staff” that was signed by himself when he was sitting as the County Warden at that time, 15 years ago! The copy of this Bylaw 26-00 was included in the Book of Authorities prepared by the Defence Team and was given to both the Prosecution and the Court at their hearing on March 16th. This “Book” also included different documents copied from the Police Act, the Municipal Act and the Provincial Offences Act that provided the basis for the request for grounds for dismissal of the two cases involved showing their reasoning as to why the bylaw officer did not have legal authority to charge the defendants in the first place. It was interesting, after having been in possession of this Bylaw 26-00 for more than two months, that the Prosecution thought it necessary they should bring it to the JP’s attention at this particular hearing (after all, he too had it since March 16th) in addition to my Letter to the Editor. One of the key statements expressed in my Letter to the Editor was: “After all, if the bylaw officer never had a contract with the municipality, or was never appointed by Council and never sworn in to perform his duties, then where is the authority for him to enforce any bylaw?” (I only quoted what both the JP and the Prosecution had already heard several times from the Defence Team at the previous hearings.) As a result, the JP took a 15 minute recess to read the two documents presented to him by the Prosecution and then came back stating he could understand how this Bylaw could be “perceived as a conflict of interest” and thereby stepped down from the case. These two defendants now must make their 15th appearance again on June 22nd for the matter to be spoken to by another Justice of the Peace!
In the Police Services Act, sec. 15.2 it states, and I quote, “ Municipal Law Enforcement Officers are peace officers for the purpose of enforcing municipal bylaws”; and sec 15.1 and I quote, “A municipal council may appoint persons to enforce the bylaws of the municipality”.
When a municipality hires a by-law enforcement company, it is not lawful because a company is not a person. A company cannot take an Oath of Office. A company cannot have the powers of a Peace Officer. The person appointed must be a real person, be an employee of the municipality, sign an employment contract, pay taxes to Canada Revenue, swear and take the Oath of Office, otherwise they have no lawful authority. Charging people under the by-laws without being a person, having no employment contract and not swearing the oath as a Peace Officer is a crime under the Criminal Code … “Personating a Peace Officer”.
The municipality erred in both creating the bylaw and the hiring of a bylaw enforcement company when they did not refer to the Police Services Act and the Oath of Allegiance Act. Anybody can read the law. The municipality had access to legal advice, paid for by taxpayer dollars, but an administrative error was still made. To quote ……… Ignorance of the law is no excuse!
Donna Burns
Haley Station, ON
