Centre For Local Research into Public Space (CELOS)
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You are on the [City Photography Policy Working Notes] page of folder [Law, Policy and Liability]
For the cover page of this folder go to the City Photography Policy Working Notes
Belinda Cole 1/22/2009 6:13 AM to City of Toronto Director of Recreation Malcolm Bromley
I'm seeking more information regarding your posted rules forbidding photographs at outdoor rinks. I would like to know the rationale behind this rule and also, the law which backs that rule. As you may know, city employees, who are not elected, have no legal authority to make rules or insist that any rules be followed by citizens unless they have first been made law by our elected officials, the City Councellors.
Is there a bylaw, passed by Council, forbidding the use of cameras at the city's outdoor rinks? If so, could you let me know the date of that by-law's passage, so that I can read the staff report associated with it?
On Thu 22/01/09 2:17 PM , "John Gosgnach" jgosgna@toronto.ca sent:
Dear Ms. Cole, Photography is in fact permitted but it is subject to City staff approval. Here is the policy statement: Patrons wishing to use cameras, video cameras or other photographic devices, including camera phones and PDA's (Personal Digital Assistants), in any program or facility must receive permission from staff before filming. Pictures may only be taken of children/patrons in their personal care. Every attempt should be made to limit or eliminate other patrons from being filmed in the background. When possible, staff should make a verbal request for permission to photograph other patrons who may be in the area where pictures are being taken. Documentation of the verbal permission must be noted in the facility log book including date, program and name of patron taking the pictures. The policy was established for the privacy and safety of our patrons. Please give me a call at (416) 392-8386 if you wish to discuss the policy.
John Gosgnach
Manager, Communications, City of Toronto
Social Development, Finance & Administration Division
Metro Hall, 9th Floor, 55 John Street, Toronto, ON M5V 3C6
Phone 416-392-8386
Cell 647-404-4531
Fax 416-392-5859
Email: jgosgna@toronto.ca
From: Belinda Cole To: John Gosgnach Sent: 22/01/2009 6:57:05 PM
Thank you for your prompt reply.
I'll call you tomorrow afternoon between 2:00 -2:30 to discuss this with you. In the meantime, would you please look up the actual by-law which makes this policy legally enforceable? If it wasn't passed by council, it is my understanding that, under law, staff do not have the authority to enforce it.
I look forward to talking to you.
Thu 22/01/09 7:19 PM , John Gosgnach sent:
Dear Ms. Cole,
I have determined that a by-law does not exist regarding this matter. I am told by legal council that, as the landlord, the City of Toronto can enact certain rules and regulations for the welfare of those on its property.
I look forward to your telephone call.
From: Belinda Cole To: John Gosgnach Sent: Thu 22/01/09 9:54 PM
I am most grateful for your follow up on this matter.
If legal counsel advises this, I would still need to know the basis in law of his/her opinion. I am merely unaware of what that actual law is (the law and the precise statement in the law) that states that photographs cannot be taken unless approved by staff. It is my understanding to date that, if there is, in fact, no such law, then, presumably, this "rule" is merely a policy and not legally enforceable.
Can you let me know what precise legal basis there is for this?
Many thanks for your help getting to the bottom of this. I look forward to filling in any gaps in my knowledge of this law in order to discuss this with you.
From: John Gosgnach to Belinda Cole, January 28, 2009
Dear Ms. Cole,
My apologies for the delay in providing you with an answer to your question.
I have been advised that under the Trespass to Property Act the City of Toronto can prohibit activities, such as photography, from taking place on its property. The City is entitled to rely on this legislation to prohibit an activity even though no by-law exists.
The Act is quite short and is reproduced in its entirety below.
Trespass to Property Act
R.S.O. 1990, CHAPTER T.21
Consolidation Period: From May 31, 2001 to the e-Laws currency date.
Last amendment: 2000, c.30, s.11.
Definitions
1. (1) In this Act,
"occupier" includes,
(a) a person who is in physical possession of premises, or
(b) a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises,
even if there is more than one occupier of the same premises; ("occupant")
"premises" means lands and structures, or either of them, and includes,
(a) water,
(b) ships and vessels,
(c) trailers and portable structures designed or used for residence, business or shelter,
(d) trains, railway cars, vehicles and aircraft, except while in operation. ("lieux") R.S.O. 1990, c. T.21, s. 1 (1).
School boards
(2) A school board has all the rights and duties of an occupier in respect of its school sites as defined in the Education Act. R.S.O. 1990, c. T.21, s. 1 (2).
Trespass an offence
2. (1) Every person who is not acting under a right or authority conferred by law and who,
(a) without the express permission of the occupier, the proof of which rests on the defendant,
(i) enters on premises when entry is prohibited under this Act, or
(ii) engages in an activity on premises when the activity is prohibited under this Act; or
(b) does not leave the premises immediately after he or she is directed to do so by the occupier of the premises or a person authorized by the occupier,
is guilty of an offence and on conviction is liable to a fine of not more than $2,000. R.S.O. 1990, c. T.21, s. 2 (1).
Colour of right as a defence
(2) It is a defence to a charge under subsection (1) in respect of premises that is land that the person charged reasonably believed that he or she had title to or an interest in the land that entitled him or her to do the act complained of. R.S.O. 1990, c. T.21, s. 2 (2).
Prohibition of entry
3. (1) Entry on premises may be prohibited by notice to that effect and entry is prohibited without any notice on premises,
(a) that is a garden, field or other land that is under cultivation, including a lawn, orchard, vineyard and premises on which trees have been planted and have not attained an average height of more than two metres and woodlots on land used primarily for agricultural purposes; or
(b) that is enclosed in a manner that indicates the occupier's intention to keep persons off the premises or to keep animals on the premises. R.S.O. 1990, c. T.21, s. 3 (1).
Implied permission to use approach to door
(2)There is a presumption that access for lawful purposes to the door of a building on premises by a means apparently provided and used for the purpose of access is not prohibited. R.S.O. 1990, c. T.21, s. 3 (2).
Limited permission
4. (1) Where notice is given that one or more particular activities are permitted, all other activities and entry for the purpose are prohibited and any additional notice that entry is prohibited or a particular activity is prohibited on the same premises shall be construed to be for greater certainty only. R.S.O. 1990, c. T.21, s. 4 (1).
Limited prohibition
(2) Where entry on premises is not prohibited under section 3 or by notice that one or more particular activities are permitted under subsection (1), and notice is given that a particular activity is prohibited, that activity and entry for the purpose is prohibited and all other activities and entry for the purpose are not prohibited. R.S.O. 1990, c. T.21, s. 4 (2).
Method of giving notice
5. (1) A notice under this Act may be given,
(a) orally or in writing;
(b) by means of signs posted so that a sign is clearly visible in daylight under normal conditions from the approach to each ordinary point of access to the premises to which it applies; or
(c) by means of the marking system set out in section 7. R.S.O. 1990, c. T.21, s. 5 (1).
Substantial compliance
(2) Substantial compliance with clause (1) (b) or (c) is sufficient notice. R.S.O. 1990, c. T.21, s. 5 (2).
Form of sign
6. (1) A sign naming an activity or showing a graphic representation of an activity is sufficient for the purpose of giving notice that the activity is permitted. R.S.O. 1990, c. T.21, s. 6 (1).
Idem
(2) A sign naming an activity with an oblique line drawn through the name or showing a graphic representation of an activity with an oblique line drawn through the representation is sufficient for the purpose of giving notice that the activity is prohibited. R.S.O. 1990, c. T.21, s. 6 (2).
Red markings
7. (1) Red markings made and posted in accordance with subsections (3) and (4) are sufficient for the purpose of giving notice that entry on the premises is prohibited. R.S.O. 1990, c. T.21, s. 7 (1).
Yellow markings
(2) Yellow markings made and posted in accordance with subsections (3) and (4) are sufficient for the purpose of giving notice that entry is prohibited except for the purpose of certain activities and shall be deemed to be notice of the activities permitted. R.S.O. 1990, c. T.21, s. 7 (2).
Size
(3) A marking under this section shall be of such a size that a circle ten centimetres in diameter can be contained wholly within it. R.S.O. 1990, c. T.21, s. 7 (3).
Posting
(4) Markings under this section shall be so placed that a marking is clearly visible in daylight under normal conditions from the approach to each ordinary point of access to the premises to which it applies. R.S.O. 1990, c. T.21, s. 7 (4).
Notice applicable to part of premises
8. A notice or permission under this Act may be given in respect of any part of the premises of an occupier. R.S.O. 1990, c. T.21, s. 8.
Arrest without warrant on premises
9. (1) A police officer, or the occupier of premises, or a person authorized by the occupier may arrest without warrant any person he or she believes on reasonable and probable grounds to be on the premises in contravention of section 2. R.S.O. 1990, c. T.21, s. 9 (1).
Delivery to police officer
(2) Where the person who makes an arrest under subsection (1) is not a police officer, he or she shall promptly call for the assistance of a police officer and give the person arrested into the custody of the police officer. R.S.O. 1990, c. T.21, s. 9 (2).
Deemed arrest
(3) A police officer to whom the custody of a person is given under subsection (2) shall be deemed to have arrested the person for the purposes of the provisions of the Provincial Offences Act applying to his or her release or continued detention and bail. R.S.O. 1990, c. T.21, s. 9 (3).
Arrest without warrant off premises
10. Where a police officer believes on reasonable and probable grounds that a person has been in contravention of section 2 and has made fresh departure from the premises, and the person refuses to give his or her name and address, or there are reasonable and probable grounds to believe that the name or address given is false, the police officer may arrest the person without warrant. R.S.O. 1990, c. T.21, s. 10.
Motor vehicles and motorized snow vehicles
11. Where an offence under this Act is committed by means of a motor vehicle, as defined in the Highway Traffic Act, or by means of a motorized snow vehicle, as defined in the Motorized Snow Vehicles Act, the driver of the motor vehicle or motorized snow vehicle is liable to the fine provided under this Act and, where the driver is not the owner, the owner of the motor vehicle or motorized snow vehicle is liable to the fine provided under this Act unless the driver is convicted of the offence or, at the time the offence was committed, the motor vehicle or motorized snow vehicle was in the possession of a person other than the owner without the owner's consent. 2000, c. 30, s. 11.
Damage award
12. (1) Where a person is convicted of an offence under section 2, and a person has suffered damage caused by the person convicted during the commission of the offence, the court shall, on the request of the prosecutor and with the consent of the person who suffered the damage, determine the damages and shall make a judgment for damages against the person convicted in favour of the person who suffered the damage, but no judgment shall be for an amount in excess of $1,000. R.S.O. 1990, c. T.21, s. 12 (1).
Costs of prosecution
(2) Where a prosecution under section 2 is conducted by a private prosecutor, and the defendant is convicted, unless the court is of the opinion that the prosecution was not necessary for the protection of the occupier or the occupier's interests, the court shall determine the actual costs reasonably incurred in conducting the prosecution and, despite section 60 of the Provincial Offences Act, shall order those costs to be paid by the defendant to the prosecutor. R.S.O. 1990, c. T.21, s. 12 (2).
Damages and costs in addition to fine
(3) A judgment for damages under subsection (1), or an award of costs under subsection (2), shall be in addition to any fine that is imposed under this Act. R.S.O. 1990, c. T.21, s. 12 (3).
Civil action
(4) A judgment for damages under subsection (1) extinguishes the right of the person in whose favour the judgment is made to bring a civil action for damages against the person convicted arising out of the same facts. R.S.O. 1990, c. T.21, s. 12 (4).
Idem
(5) The failure to request or refusal to grant a judgment for damages under subsection (1) does not affect a right to bring a civil action for damages arising out of the same facts. R.S.O. 1990, c. T.21, s. 12 (5).
Enforcement
(6) The judgment for damages under subsection (1), and the award for costs under subsection (2), may be filed in the Small Claims Court and shall be deemed to be a judgment or order of that court for the purposes of enforcement. R.S.O. 1990, c. T.21, s. 12 (6).
Please call me at 416-392-8386 if you wish to discuss it with me.
Sincerely,
John Gosgnach
Belinda Cole 5/5/2009 11:55 AM
Hi Mr. Gosgnach,
I have reviewed the Trespass to Property Act that you sent me in late January. Thank you again for your very prompt help in getting this material to me.
After looking at the Act, I have a few observations and questions in response to your email:
1. What is the exact wording of the prohibition against photography on property that belongs to the City? Is it a written policy?
2. You state that you have been advised that "the City" is entitled to rely on this legislation to prohibit an activity even though no by-law exists. Who exactly is "the City" in this case?
I am not a lawyer. As I understand it, however, people are entitled to live in such a way that they see fit provided they do not break the law. People need to know clearly what is against the law, and that such laws can be made only be people legally entitled to do so.
Here is what we find puzzling: Under the City of Toronto Act, only elected City Councellors can make policy for the city. Staff's job is not to make, but rather to implement policy. The legitimate way of making policy, according to Act and the City's website, is to pass a by-law.
Accountable, transparent government is a key principle in the City of Toronto Act. If officials who are not elected and therefore not accountable to the people who enjoy their city parks and facilities can make any rules they want about how public space is and is not used, without public input or decision-making by accountable, elected officials, there seems to be a fundamental problem, or misunderstanding of the roles and responsibilities at the city.
Perhaps Council has delegated this policy making authority re: photography to staff. Or perhaps I have misunderstood the law, or there is more to this than I realize. If so, please let me know.
Will you get back to me on these questions, and then we can talk about this issue? If you need any clarification or if it would be helpful to talk about this, please let me know.
Belinda Cole
Centre for Local Research into Public Space
Wed 06/05/09 12:24 PM
Dear Ms. Cole,
Thank you for your email message. By copy of my reply, I'll ask Shirley Mathi, a Solicitor at the City of Toronto's Legal Services Office, to answer your questions.
John Gosgnach
Manager, Communications
City of Toronto