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From: Peter Simm
To: "TNT!MEN Board"
Subject: Silly cops
Date: Wed, 16 Jun 1999
The story about the silly cops on Sunday now has international coverage: Reuters interviewed me about it yesterday. (It also made the front page of the Toronto Star yesterday.)
The four cops apparently were relying on subsection 1(b) of By-law 20 of the Toronto Harbour Commissioners ("THC"). It reads as follows:
1(b). No person shall bathe, swim or wash their person in any waters of the Port and Harbour of Toronto except when wearing a proper bathing suit sufficient to prevent indecent exposure of his or her person.
Under provisions of the Canada Marine Act, the THC ceased to exist on June 8, 1999, when the Toronto Port Authority ("TPA") came into existence. I have carefully reviewed the Canada Marine Act, regulations under the statute, and the Letters Patent issued to the TPA. Somewhat surprisingly, although there are transitional provisions for various regulations to be automatically carried over into the new regime, there is no transitional provision for the THC by-laws to automatically become TPA by-laws. (In contrast, the Ontario legislation creating the new megacity of Toronto contained explicit transitional provisions for by-laws.)
Thus, when the THC legally ceased to exist on June 8, subsection 1(b) of THC By-law 20 ceased to have any legal enforceability. The statutes which had provided some legal validity to that by-law provision were rescinded on June 8, and the new TPA had not yet passed any similar by-law provision.
On Monday afternoon, I met (separately) with the CEO of the new Toronto Port Authority, and with the Commander of the Toronto Police Marine Unit.
The former was extremely pleasant. He confirmed that the Toronto Port Authority's board has not yet had its first meeting, but that this should happen within the next ten days. At that meeting, one of the agenda items will be an omnibus resolution adopting as Toronto Port Authority by-laws all of the by-laws of the now-defunct Toronto Harbour Commissioners. HOWEVER, I was assured that there would be an express exception to the omnibus resolution: subsection 1(b) of THC By-law 20 would be excluded from the otherwise-wholesale adoption of THC by-laws.
My meeting with the Marine Unit's Commander was cordial but less effusive. He stood "at ease", glaring at me with steely blue eyes the whole time. I gave him a synopsis of the legal situation, including the fact that the TPA would not be adopting the old THC by-law provision on bathing attire. He candidly mentioned that he had recommended against the establishment of the official CO beach, but that he recognized his duty to deal with it as a current reality. I really don't think that he personally had anything to do with the bizarre incident on Sunday. He also indicated that he recognized that there were more pressing priorities for law-enforcement. I felt it unlikely that he would give me any direct assurances, so I didn't ask for any; but I was reasonably satisfied from what he was implicitly communicating.
Councillor Kyle Rae's office and Councillor Jack Layton's office have also been in touch with the powers-that-be. It seems that a repeat of the Sunday incident is extremely unlikely.
Based on the wording of the article on the front page of Tuesday's Toronto Star, I may be at the beach this weekend with a sign around my neck reading, "A good lawyer". :)
[Spike again:] I called the Marine Unit this morning and spoke with Constable Robert Dee. He told me that as of yesterday morning, the Unit Commander had told the Marine Unit that in his opinion, the bylaw was still valid, and that they were free to enforce it. Dee said that the issue has been passed over to the "downtown lawyers" who will make their opinion known at some point in the future. Until that time, the Marine Unit intends to act as if the bylaw was actually in effect.
However, Constable Dee promised me that none of the four officers who made trouble last weekend will be at the beach this weekend, and he did say that the Marine Unit is officially not interested in pursuing this matter. However, he could not promise that swimmers would be free from police harrassment. It's quite outrageous, really.