After careful deliberation I have determined the
conduct of the State, that being By-law
enforcement, and the municipal law office under the
leadership of Mr. McIvor to be offensive and unfair
to the people of Clarington and their Council. The
Kraus and Kelso file has been closed six years.
The couple had been carrying on business at the
location for approximately 14 years before the
first investigation was opened and closed. Mr.
McIvor was actively aggressive, biased and
prejudicial against the couple seeing that the
reopened investigation continued by telling By-law
Officer Williams that the couple have an expanding
business and nothing Mr. Kelso has written to Mr.
McIvor deals with the problem. He gave, that being
Mr. McIvor, Officer Williams carte blanche to
continue on with the closed file against a family
who had been operating for approximately 25 years.
Officer Williams actively commensurated with a
Suzanne Clement who he had previously investigated
actively seeking information on agricultural zoned
properties storing RV’s. This was done while both
Clarington Council and regional government were
considering changes to legislation with regards to
agricultural zoned land. I have found that Officer
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Williams was actively aggressive, operating in
attack mode and bias when he issued the property
standards order to clean up derelict vehicles. He
was there to investigate recreational vehicle
storage when he observed the derelict vehicles.
This did not sit well with Duncan Anderson, Officer
Williams’ immediate supervisor. Officer Anderson,
not satisfied with Officer Williams’ law
enforcement behaviour, rescinded the property
standards order.
I have concluded, based on the order being
rescinded, that Officer Williams was showing the
couple the authority he wields and how he will use
his authority to intimidate citizens. These
actions do not reflect the notion of fair play or
decency on behalf of law enforcement or senior
staff when Clarington Council and the Region of
Durham were contemplating changes to by-laws
concerning agricultural zoned properties and would
allow some properties to carry on a business. The
prosecution has argued there was clear direction
given to Ms. Kraus and Mr. Kelso from the
Municipality not to use the land for storage of
more than three RV’s because they had no legal
nonconforming status.
I have determined there was direction given by by-
law enforcement. However, it was never clear
direction that was coming from the Municipality.
The Kraus and Kelso file had been closed since
2014. Another by-law enforcement officer closed
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investigations on properties carrying on the same
business prior to By-law 84-63. One officer
determined them to be legal nonconforming. Later,
direction came from the planning department to
reopen those files that were closed. It is evident
the right hand didn’t know or can’t comprehend what
the left hand is doing between municipal offices in
the community. How could it be clear to Ms. Kraus
and Mr. Kelso or any other citizen for that matter
when the municipal officers can’t figure it out?
It certainly isn’t clear to the officers.
The couple tried to get clear answers and were
given direction on how to go about the process of
getting the zoning changed as both municipal
governments were contemplating change.
Nevertheless, after Mr. McIvor, Director of
Investigative Services, corresponded with Mr. Kelso
he told “Dave” to carry on. There is a problem in
the community with RV storage and nothing Mr. Kelso
said changes anything.
It is important that by-law and legal staff be left
alone to determine when, where and how
investigations should be undertaken and charges
laid. Without that independence, how could by-law
enforcement officials and their senior managers
operate without elected officials getting in their
way, ordering them or pressuring them to stop an
investigation or start an investigation, or leave a
relative or friend alone, rescind a parking ticket,
issues regarding snow removal and garbage issues,
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the list goes on and on for by-law enforcement.
Added to that is harassment about what authority
they do or do not possess, why they bother citizens
on their own property or, “Don’t you understand
that I pay your salary?” Without the independence
in their profession, doing enforcement would be
utterly impossible. I don’t think anyone would
even want the positions let alone pursue a career.
By-law officers must be treated with respect and
decency and independence.
Having said that, respect, decency and the rule of
law, or as it is commonly referred to is that no
one is above the law, goes both ways. It is
vitally important that citizens we entrust to
ensure laws are adhered to carry on their duties
with fairness, balance, decency and without bias.
There is no room to arbitrarily decide when and how
to act on enforcing by-laws using intimidation and
bias with the possibility of uprooting a family
with 25 years put into a business when by-law
officers never took an active interest in what Ms.
Kraus and Mr. Kelso were doing when by-law knew
full well what it was they were doing on their
property.
Elected Councils at two levels were in the middle
of determining a change in By-law 84-63 that would
allow business to be carried on under changes to
the regional government’s official plan with
Clarington Council following suit. The Kraus and
Kelso property can now carry on the business. By-
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law enforcement officers and senior staff had a
responsibility and a duty to consider what future
legislation elected officials were contemplating as
well as the direction elected officials wanted to
take the community in moving forward as the
community grows and develops.
The laying of charges when issues regarding the
future use of agriculturally-zoned land are on the
cusp of being changed, and were changed, is
prejudicial to the family. Why bother to have
elected officials at all if senior directors,
managers and enforcement officers who possess power
and authority over citizens act with impunity in a
bureaucratic milieu where there is no
accountability to anyone but themselves?
I cannot think of an alternative remedy in this
case short of a stay. Based on the evidence and
arguments I’ve heard, a stay of proceedings is
ordered. Thank you, everyone.