Beverages & Bylaws

A few years ago, the City of Kingston introduced some measures designed to curb some of the excesses of student life, especially at certain times of year. The creation of new powers to govern partying in the city with special attention on students has obviously attracted the attention of Queen's Legal Aid, the law school's clinic dedicated to supporting students and residents with low incomes in a wide variety of legal matters. The director of Queen's Legal Aid, Blair Crew, joins us this week to talk about the University District Safety Initiative, busting some myths and also looking at the related Nuisance Party Bylaw. Even if you're not a Queen's student, this is worth of listen as more of these kinds of by-laws continue to be drafted and introduced in various jurisdictions across the country.

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Transcript:

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00:03 Matt Shepherd: Welcome to Fundamentals of Canadian law. I'm Matt Shepherd. We're recording this podcast as part of the certificate in law here at Queen's Law, the law school at Queen's University in Kingston, Ontario. A few years ago, the City of Kingston introduced some measures designed to curb some of the excesses of student life, especially at certain times of year. The creation of new powers to govern partying in the city with special attention on students has obviously attracted the attention of Queen's Legal Aid, the law school's clinic dedicated to supporting students and residents with low incomes in a wide variety of legal matters. The director of Queen's Legal Aid, Blair Crew joins us this week to talk about the University District Safety Initiative, busting some myths and also looking at the related Nuisance Party by-law. Even if you're not a Queen's student, this is worth of listen as more of these kinds of by-laws continue to be drafted and introduced in various jurisdictions across the country.

01:00 MS: Fundamentals of Canadian Law is brought to you by The Queen's Certificate in Law, the only online certificate in law offered by a law faculty in Canada. You can find out more at takelaw.ca.

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01:14 MS: Blair, I thought we could talk about some of the myths surrounding the University District Safety Initiative. And what, from your vantage point as the Director of Queen's Legal Aid, what you've heard out there that might be misinformation that's worth correcting.

01:29 Blair Crew: Absolutely. The University District Safety Initiative is an initiative on how certain offenses are prosecuted, but there are a number of misnomers right within the name itself. One of them is that it only applies to the University District. The City of Kingston chose to name it that with reference to the area where most frequently it is invoked, but there are no set boundaries for the University District. The initiative makes it clear that it can apply anywhere in the city at any time. So it's not as if anybody can look on a map and say, "Oh, we're just outside the border, we're safe, we're not caught by this."

02:09 MS: Right. And that makes sense because there isn't a border. There isn't officially a University District. I couldn't say it with accuracy it's Albert down to Barry, from X to Y. So it has to apply across the entire city.

02:23 BC: There certainly is an area that the city associates or the university associates as being the student housing area, but the policy of the rule is that it's going to apply more broadly than that. And they didn't wanna define precise boundaries as to where that was and was not going to be.

02:40 MS: Okay. So East and West and all over, anywhere in the City of Kingston, this applies.

02:45 BC: Absolutely.

02:46 MS: Okay.

02:47 BC: Apart from that, there's also a myth in the notion that it only applies at certain times of year. Specifically, the University District Safety Initiative does say that it's the initiative that is going to be applied during orientation week, during Homecoming and significantly around St. Patrick's Day. However, the University District Safety Initiative and its way of prosecuting offenses catches any conduct that is caught under the related Nuisance Party by-law. And it's not restricted to those times of year, so it's not as if you're one day before St. Patrick day's or one day after or the Saturday closest to St. Patrick's day that you are necessarily safe. You can still be charged with the Nuisance Party By-law and it can still be prosecuted under the University District Safety Initiative.

03:40 MS: So it's anywhere in the city and any time of year. It is not gated to specific times a year that have been problematic in the past.

03:47 BC: That's correct, with a particular ability to apply it at those three times, where the underlying offense is either under the Liquor license Act or the City of Kingston Noise By-law.

04:00 MS: So, you're naming two offenses there. Can we break those down one at a time?

04:04 BC: Sure, and in fact, the University District Safety Initiative applies to three offenses.

04:09 MS: Oh, okay.

04:09 BC: So the three offenses are the Liquor Licence Act, the City of Kingston Noise By-law and the City of Kingston Nuisance Party By-law. All three offenses will be prosecuted under the procedure that is provided by the University District Safety Initiative.

04:27 MS: I actually thought the University District Safety Initiative and the Nuisance Party By-Law were the same thing until now.

04:32 BC: They are actually separate things.

04:33 MS: So another myth busted right out of the gate.

04:35 BC: Absolutely.

04:36 MS: So let's break these down one at a time.

04:37 BC: So the Liquor License Act that's a province-wide act. It's probably the one under which we see the most charges that are actually laid. The primary offenses under that act would be any minor having alcohol at any time. And what's best known for this is the open alcohol in a public place. We see the most charges laid under that. Under normal circumstances, that subject to the fines and penalties that are specified by the province in the province-wide Liquor License Act. But the University District Safety Initiative takes over to say that in the City of Kingston at those times of year that I outlined they're going to be prosecuted under that procedure.

05:19 MS: Can the city do that? Can it just sort of say, "We are adding additional powers to the powers of the province to kind of do our own thing in addition to what the province does."

05:28 BC: It's actually a question that I took a close look at because I would love to find a way to challenge the wide use of some of these powers. However, the Municipal Act does delegate to the city, wide powers to regulate of matters of a city's concern. So, absolutely, they are entitled to supplement or to provide a code of procedure, if you will, for existing provincial offences. And as the City of Kingston has done, they're also free to enact their own by-laws to create offenses that could be used under that initiative.

06:00 MS: So the city does have the power to take something that the province has and then put their own spin on it. It may not be the best language, but they are given the power through the Municipalities Act to kind of dial up and reinforce and enhance something that's covered under provincial law.

06:00 BC: Absolutely. And the University District Safety Initiative specifically provides that if you get charged with an offense that would normally simply be a ticketable offense that instead you're going to get a summons to attend to court. That's the outstanding feature of the University District Safety Initiative. It's much more inconvenient for students because instead of simply paying the set fine, they are required to come to court.

06:44 MS: Right.

06:44 BC: And if they don't show up in court then there's going to be a trial in absentia. And one of the features about this is that it removes the provincial or city set fines that normally you could pay just not disputing liability. It requires you come to court, instead. And once those fines are removed, now you're subject to the maximums under the Act, theoretically. The reality is nobody ever gets near the maximums that are ridiculously high. But you do see that amounts that are higher than if you had simply had an ability to pay a set fine. Interestingly enough, I wondered whether the city had the authority to do that. But it's a little known procedure that is available under the Provincial Offences Act, where even minor offenses can be initiated by issuing the person who has been charged with the summons instead of simply giving them a ticket that allows them to simply pay the fine.

07:37 MS: So the summons isn't just a way to add annoyance and more burden to the student to discourage them. It's actually kind of a gateway to a higher threshold of fines and punishment than the city would normally have access to.

07:48 BC: That's right. Most of us are familiar with something like a speeding offence where one of the options that you get is it will calculate what the fine you need to pay is and you simply have the option of not disputing it, paying the set fine, signing that you're guilty, sending in your check or your MasterCard payment, and then you're done. By requiring students usually to attend court, it removes those set fines and subjects the students to higher possible penalties.

08:17 MS: Right. A quick side note, just because you just used the word students. Similar to the fact that this takes place anywhere in the city and at any time of year it is not just something that is applied to students. This could theoretically apply to anyone of any age.

08:30 BC: Yeah, they could not make that discrimination in the act. Everybody knows that it is aimed primarily at students. It is called the University District Safety Initiative after all. The target is very, very clear. So I use the word students. The vast majority of people that we see that are charged with the events are in fact students at Queen's and occasionally at St. Lawrence College.

08:52 MS: Right, because you'd be running into significant charter problems if you tried to make a law that just applied to people of a certain age.

08:58 BC: Yeah, I looked for that and hoped that we could see it in order to challenge it. Sadly, it's not there, and they've been a little bit more clever than that in the way that the legislation has been drafted.

09:06 MS: Right. So is that everything on the Liquor Act, or is there more stuff to cover there?

09:11 BC: That's the essential thing. It's the open alcohol is the big one. Public intoxication is another offence under the Liquor License Act. It's often one that we see charges laid.

09:22 MS: So number two.

09:23 BC: Number two is the Noise By-law. The Noise By-law basically specifies that any noise that is audible from the street is unusual noise that is subject to a violation of the Noise By-law. There are two ways that the by-law works, one of which is that if it's above a certain decibel at set times of day, typically, after 10 PM, then it's automatically an... Sorry, typically before 10 PM it's automatically an offense. However any noise that is heard from the street after that time is automatically deemed to be a Noise By-law violation.

10:04 MS: Okay.

10:04 BC: One of the things that's exceptional about the Noise By-Law is that it also carries... It will be prosecuted under the University District Safety Initiative and the fines are often in the range of $500. The by-law specifies that the fine can go as high as $10,000, but for a first offense, a $500 fine is really quite high and well beyond the means of many students to be able to pay it readily.

10:29 MS: So let's break that down a bit. My limited experience with Homecoming, for instance, a noise that's audible on the street, the noise is often on the street and the source of the noise is actually on the street. So how does this work in terms of deciding what is or is noisy?

10:46 BC: Well, so really, the primary way that it's used is to enforce effectively a time curfew.

10:51 MS: Okay.

10:52 BC: And the goal of the by-law is we don't wanna disturb people when they're sleeping.

10:57 MS: Right.

10:57 BC: So, to that end, after a certain time, any noise that you can hear from the street can attract... If the party is in fact on the street then that's de facto going to be a violation of the City of Kingston Noise By-law. I guess the law is also designed that unless you have a permit for it, even during the day, if your noise is simply too darn loud, then you can be charged under that as well.

11:19 MS: Okay.

11:20 BC: There are exceptions and you can apply for a permit to be allowed to exceed that noise level for particular individual events.

11:27 MS: Right. And so what's the trigger for this? Does someone actually have to call in a complaint for this to be activated or is it just kind of passively waiting for noise to happen?

11:37 BC: There are no requirements that somebody phone in a complaint although frequently that is the way that it occurs. The city will respond if they get a complaint that my next door neighbour is hosting a very, very loud party, particularly if it's after that 10:00 PM time.

11:52 MS: I live on a street with a band. The band Loves to practice. They are not a good band, but they love to practice and they love to practice late. So my hand has drifted towards the phone many times, and I've never actually made that call.

12:05 BC: Well, you'd be delighted to know that subject to what you want your relationship with your neighbors to be like, you do have an ability to phone the City of Kingston and ask that they come and enforce that Noise By-Law.

12:16 MS: Okay. For the purposes of this conversation, it's not actually... You don't have to have a complainant to be violating the by-law.

12:24 BC: No, and we've seen several examples where what happens is the City of Kingston Police will be outside just around that border time, and then will start enforcing the Noise By-Law as soon as it goes after. So they are their own witnesses to the fact that noise is audible from the street. Again, particularly in the downtown housing area, they seem to be ready at times, particularly at the times when the University District Safety Initiative's in effect to go and pounce on any noise that they hear that's loud.

12:36 MS: If you're having a party, and the party has spilled out on to the street and the clock strikes 10:01, who's the originator of the noise in that case? Is it anyone and everyone that happens to be around the area? Is it the owner of the house that they deem the noise to be coming from? How do you figure out who's responsible?

12:36 BC: Well, this is where the Nuisance Party By-law, the third of our three statutes or laws kicks in.

12:36 MS: Okay, well, let's take a quick break and then we will get back and start digging into the Nuisance Party By-law.

12:36 BC: Alright.

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13:28 MS: Hey, it's Matt. Our conversation with Blair digs into a few interesting areas, criminal law, obviously, but also issues of power and how cities can create their own powers to make and enforce by-laws. No matter what legal issues you're interested in, the Certificate in Law has you covered. Criminal Law is a module of Law 201-701: Introduction to Canadian Law. And we also have a whole course about the Constitution, powers and how they work in Canada. Law 205-705: Public and Constitutional Law. If you're a Queen's student, certificate courses may also be applied to your undergraduate credit requirements. You can find out more about these courses and sign up to takelaw.ca.

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14:13 MS: So Kingston has a Nuisance Party By-Law and this is something that I actually had confused with the University District Safety Initiative. There are two different things, but it seems like the University District Safety Initiative is kind of there to point in most significant ways or many significant ways to the by-law.

14:32 BC: Right. So the Nuisance Party By-Law is a separate by-law passed by the City of Kingston, and it really provides a power to the police and an ability to lay additional charges. It's significant because the Nuisance Party By-Law is the one that is not restricted under the University District Safety Initiative to only those certain times of year. So at any time that the police lay a charge under the Nuisance Party By-Law it can and will be prosecuted by way of the University District Safety Initiative. The outstanding features of it are that, first of all, it gives the police, the Chief of Police or his delegate, which is basically going to be any officer that has been empowered to do so, the ability to declare a party a nuisance party at any time. Once that order has been issued, then all of the attendees must immediately leave the party. Following that, the city can issue to the property owner or to a tenant of the residence an order that they host no more parties for the next two years. If it happens within another two years, you don't need to give the warning, any person can be instantly charged.

15:46 BC: So with respect to the question of, "Who does it catch?" the by-law is very, very widely written. It can be the host of the party. You're also free to charge any attendee of the party whether that's after the warning has been given or the fact that the party was precluded from the beginning. In addition to that and if that weren't enough, the city was concerned about absentee landlords. So the owner can be charged even if the landlord is, in fact, in China at the time. Any person that is an occupant of the residence can be charged, and any person that is a tenant of the party can be charged under the by-law, even if the tenant was not involved in the party. So if you live there, if you rent there, you can be responsible and you can be charged.

16:33 MS: The visual metaphor in my head is like... It's kind of like a T-shirt gun. We're just firing charges off, willy-nilly, except no one wants the charge and most people want a T-shirt.

16:42 BC: The only way that the analogy is not appropriate as that's right, in this case, people would be fleeing from the T-shirts as opposed to trying to get them.

16:52 MS: Right.

16:52 BC: We've seen several situations where people, in fact, tried to flee from the T-shirts, but it gives the police an ability to charge anybody that they find there, any attendee of the party. So typically what happens is people do scatter fairly quickly once the police show up and declare the party to be a nuisance party.

17:12 MS: What's a party?

17:14 BC: So, a party is basically any gathering at all, but there is a list of conduct under the Nuisance Party By-Law that is specifically designed under the definition of party of the kind of conduct that they are looking to prohibit.

17:28 MS: Okay.

17:29 BC: The primary indications that would be a party featuring any public intoxication, so a party that moves from being completely contained to being out on the streets. If the party involves any blocking of traffic or really has spilled out onto the streets. If we get into things like people urinating in public, then that's going to be deemed to be a gathering that is subject to the Nuisance Party By-law. And significantly and again, maybe misunderstood, but any rooftop party can be deemed to be a nuisance party unless the roof is specifically permitted to host large numbers of people. So, the idea that I'm only having a few people on the roof, therefore, it can't be a nuisance party is probably incorrect. Very few roofs in the City of Kingston are zoned such that they can host a large number of people.

18:22 MS: Right. And maybe I'm just being pedantic at this point, but if one of the outcomes of this is they say, "This domicile can't host a party for the next two years," is that only parties that trigger any of these other conditions or is this anything that's deemed a party at all?

18:37 BC: It's anything that has been deemed to be a party under the Nuisance Party By-Law, which again the police have the power to do.

18:44 MS: Right.

18:45 BC: So really, it's a broad range of conduct that the police can say, "That constitutes a nuisance party." Effectively, it's almost anything that would make a party worth attending. But as soon as that happens, then the order can be issued. The party must stop immediately, or the charges could be laid. And I guess one of the ideas of going with owner liability is that it might not even be the same group of people that have been precluded from having a party there. If there is a landlord that rents to a group of students one year and those students all graduate and move on, you could be renting a house that is subject to the Nuisance Party By-law without even knowing that you've done so. And you could end up facing charges simply because the people that were there the previous year had hosted a party deemed to be a nuisance party.

19:26 MS: Right. So, what counts... I'm assuming that we're not gonna roll out the town crier and have a scroll, what counts as someone declaring something a nuisance party?

19:26 BC: So again, that's specifically a power that is given to the police. So the police basically do need to pronounce loudly at the scene of the party under the authority of the Nuisance Party By-law, "We are declaring this to be a nuisance party, and we are telling all attendees to disperse immediately."

19:26 MS: Okay, so you do have to have law enforcement on site and a public declaration that this has been deemed a nuisance party.

19:26 BC: That's correct.

19:26 MS: Okay. So... But that's the point where they can... Is there a time limit? Do you get a head start before they start laying charges or is it, "This is a nuisance party," and then the T-shirt cannon starts going off?"

20:19 BC: I think that the argument can clearly be made that they've gotta give you fair warning. They've gotta give you a reasonable length of time to disperse.

20:26 MS: Right.

20:26 BC: From my observations that length of time is not very, very long. And of course you're dealing with people that are already well into the party, and you're dealing with people that generally speaking, they may be a mere attendee, they don't know the history of this house, they're probably unfamiliar with most of these laws. So sometimes, it results in, let's just say, some attitude towards the police officers.

20:50 MS: Right.

20:51 BC: And where that occurs, that's one of the most sure fire ways that you can be sure that you're the person that they're going to choose to charge by virtue of the fact that you were an attendee. We have seen situations where it is the innocent tenant that comes home that says, "I had nothing to do with it." And faced with that response, that's when the police may decide to lay a charge. So, fairly you need to be given some warning. I think that I could challenge a charge that was laid too soon, but it's not specified how much time they need to give for you to disperse or the party to end. It just better happen pretty darn quickly if you wanna be on the safe side of the law.

21:29 MS: So laddering all the way back up to kind of the broad myths, do you have to be a Kingston resident to be charged under this by-law?

21:37 BC: Not at all, you could be any individual that is at the party. So one of the features of Homecoming is that many of the people, we call it Homecoming for a reason, "have come home" for the weekend and may be visiting their friends, some of whom are still students. Those individuals can be charged. Anybody that's at the party.

21:56 MS: Okay, because, yeah, anecdotally, there are a lot of students from other universities that come down for Homecoming 'cause they hear it's gonna be a fun time. And so there's a lot of non-Kingston residents, and they can all be charged under this.

22:09 BC: I think so. Queen's students tend to feel a real loyalty to the school to Queen's and to the school to which they attended, and they have fond memories of their times as a student. It's why it's one of the most successful Homecomings of any university in Ontario. At the same time, the University District Safety Initiative and the Nuisance Party By-Law are responses to that very success.

22:32 MS: Right. So is there anything else kind of that we need to cover in the Nuisance Party By-Law.

22:38 BC: Under the Nuisance Party By-Law, there's really nothing else. It's almost anything that is going to make the party notable is likely to trigger the potential that it could be declared a nuisance party.

22:49 MS: Okay. So what's the big picture here in terms of, from your vantage point, since this was implemented, has there been a change in the type of and sort of scale of partying going on in the university or has it kind of been the same but with more charges being laid?

23:08 BC: I'm not so sure that there has been a significant change. The University District Safety Initiative in the language that the city used to pass it as well as in the preamble to the Nuisance Party By-Law, they talk an awful lot about that golden goal of any criminal or quasi-criminal law, which is deterrence.

23:30 MS: Right.

23:31 BC: I think that students and people that are attending parties don't particularly think deterrence. I don't think that they're thinking, "Oh, what are the consequences of this?" People are simply out to have a good time. So from what I've seen, I'm not so sure that it has had a significant effect on cutting down the amount of the conduct. What has happened, however, is the police have tools to respond more quickly. So recently there was an example where by 11 o'clock in the morning, the police had already attended well literally this party had already flown out onto the streets, but declared a nuisance party as of 11 o'clock in the morning. So, what I think has happened is that the police have an ability to respond much quicker than they used to, and more tools for enforcement once they do.

24:16 MS: Okay. And Queen's Legal Aid has produced some tools to help students. Well, help out everyone really understand what the parameters are. You produced some materials, I think, last year or the year before that were circulated on campus. They're available at queenslaw.queens.ca on the Queen's Legal Aid site that basically detail the parameters of what makes a party and what makes essentially, what will lead you into violating these by-laws.

24:42 BC: Yes, the summary of all of this information is up on our website, and we have produced those materials under the heading of "Save the Party, Skip the Ticket." One of my messages about that is that it's not just a ticket that you're skipping, it's the summons to court now that you are skipping and the larger fine that can come with it.

25:01 MS: Right.

25:02 BC: I think I would like to just remind people that although these are charges that can have significant effects and are a pain to deal with and they take the time to go to court, at the same time we're still talking about by-law offences and Provincial Offences. So the good news in all of this for a person that gets charged is you're not going to get a criminal record for this.

25:25 MS: Okay.

25:26 BC: You can get a criminal record for other things such as obstruct police, if you were to give a police officer a false name when you are being arrested or if you try to run away. But generally speaking, if you find yourself in a situation where you're charged, if you cooperate at that stage, the worst that you're looking at is this fine and the consequences that come along with it. But that doesn't involve a criminal record. Another aspect of the University District Safety Initiative that many students are concerned about and here it specifically is students is that part of the initiative is in addition to the summons to court, the offences are reported to Queen's University, who can then have a conduct investigation as to whether or not you've committed some sort of non-academic offence that can be disciplined. The good news is that we have not seen Queen's vigorously coming after people for this.

26:20 BC: In some situations, depending on the notoriety of the party and of the scope of the harm to the community that may have been done, they have launched investigations, but typically those are resolved with either the student agreeing not to host a similar party or not to engage in such conduct again in the future or even simply writing a letter of apology to the school. So it's not like anybody needs to worry that they will lose their degree, although some people are concerned that it can be reported to the university as well.

26:53 MS: Right. And the university has its own suite of powers. We can't guarantee what would happen if the university engages in a conduct review.

27:01 BC: No, no, we can't. And again, that's not something that I think anybody would want to go through, but it's not like the university has been coming with over-the-top sanctions for individuals that have been found to be in violation of the University District Safety Initiative.

27:14 MS: Okay, so where can students go if they need help with these issues?

27:17 BC: So this is one of the things that Queen's Legal Aid, specifically does. We have a number of students down there that work under the supervision of lawyers, and Provincial Offences and by-laws are squarely within the power for students to represent individual. We have a great deal of experience in doing so.

27:37 MS: Great. Thank you very much, Blair.

27:39 BC: It's been a pleasure.

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27:43 MS: Thanks to Blair Crew. You can find lots more information about Queen's Legal Aid, including some resources on parties and the law at queenslawclinics.ca. It's also a great resource for information on all of Queen's Law's clinics, including business law, family law, Elder law and the nation's only Prison Law Clinic. If you're interested in on our rights as citizens and the use of power in Canada, you can take a more profound look at the subject in Law 205-705: Public and Constitutional Law. You can learn more at takelaw.ca. Fundamentals of Canadian Law is recorded at Queen's University, situated on traditional Anishinaabe and Haudenosaunee Territory. Our theme music is by Megan Hamilton, who is also a staff member here at Queen's Law. You can find out more about her music at meganhamiltonmusic.wordpress.com. Thanks for listening.