The Challenge of By-Law Enforcement

One of the reports on tonight’s agenda is about by-law enforcement–specifically, about being able to issue fines against folks who break our new parking by-law. With a new parking by-law and the ability to issue fines to enforce it, hopefully we can address some longstanding frustrations with parking in town.

But by-law enforcement is one of the things I hear about frequently (maybe third place, behind speeding and taxes), and it’s rare that folks tell me about it because they’re happy with how it’s going. I want to stress from the start here that our by-law enforcement staff are generally excellent: they’re kind, thoughtful people who are well-trained in a very difficult and usually thankless job. But there are reasons it’s a thankless job, and that residents are rarely satisfied with their work. So let’s break down what by-laws are, which ones are enforceable, and just how little we can enforce them.

What’s a By-Law?

Every law that a municipality passes is a by-law, and the vast majority of them are administrative in nature. For example, every meeting ends with a “confirmatory by-law”, which puts a record of that meeting into law so that it can be easily referenced and the decisions we made can be confirmed in a court of law. That way if someone challenged a council decision, we can say definitively: that decision not only happened, here’s the by-law confirming that it happened. A large portion of the by-laws that we pass at a meeting are similar: we don’t just make an agreement to assume the streets and works of a new subdivision, we also pass a by-law requiring that we make such an agreement and authorizing the mayor and clerk to make the agreement. Etc.

Some by-laws are prescriptive or permissive. For example, the zoning by-law says what kind of development can happen in each “zone”, and requires that the development follow certain rules regarding things like where on the property the building can be built, size limits, etc. Other by-laws determine where and when we can park, at what time we can make noise, and how many dogs we can have (it’s max three, in case you wondered). These kinds of by-laws are enforceable, which is to say that because it requires something of us, we need to be able to do something if someone breaks the by-law. If a by-law requires something of us, and it is not actually enforceable, then it is not a very good law. And this is the crux of the situation. Let’s unpack it.

The Psychology of Enforcement

Living creatures test their limits. We are experts at finding the line and walking it, and anyone who has children knows exactly how true that is. It’s built into us, a key function of evolution, and it’s how we learn: try something and see what happens, then connect the action to the consequence.

In order for us to learn where the line is (which is to say, in order for a by-law to actually influence our behaviour) it needs to be clear, and fairly enforced as quickly as possible when we break it. Let’s look at this with regard to Automated Speed Enforcement, which was controversial enough that I know you’ve all probably thought about it before:

• The speed limit was clearly posted, as well as signs indicating that it was enforced by camera (I counted seven signs going east to west, and five going west to east). So it was clear.
• It was fairly enforced. People were fined on the basis of exactly how fast they were going, with photo evidence, and it was applied to every speeder equally.
• It was not enforced quickly. People would receive their fine in the mail, days or maybe even a few weeks later. The feedback mechanism took too long, which meant that it did little to address people’s behaviour in the moment. The time between the infraction and the fine meant that people could not connect the action with the consequence in a really visceral, unconscious way.

Part of the fairness of a fine is that it needs to be proportionate to the infraction, but also relevant to the person. This is a challenge for all fines: rich people are barely bothered by them, and poor people can have the course of their life altered by them. A $5 fine for speeding would do nothing to change most people’s behaviour; a $500 fine could ruin someone’s life. (Some countries adjust fines based on the person’s income, so a wealthy person could get a speeding ticket worth tens of thousands of dollars while an average person would pay a few hundred dollars. This helps, but still, fines are quite limited.)

The Model of Enforcement

Municipalities only have one way to enforce by-laws: with fines. This is determined by provincial law, which also lays out exactly how by-laws can be enforced. Our staff are trained in what rights they have as they enforce by-laws. For example, they can enter a yard or home for the purpose of enforcing a by-law, and there are complex rules regulating how they do so.

When a by-law enforcement officer wants to enforce a by-law related to a property (e.g., the property standards by-law, the clean yards by-law, the zoning by-law, etc), they need to initiate a procedure that generally involves giving notice of the by-law infraction, then providing the property owner time to receive and comply with the notice, or to appeal. Depending on how that goes, it may be just the beginning of a long series of back-and-forths between a property owner and the by-law enforcement officer.

The officer’s goal is to work toward compliance, rather than to ticket as hard as they possibly can, and our amiable officers are happy to work with residents who are trying to resolve an issue (because generally the resident is also not happy with the situation and is unable to resolve it quickly). Very often there are hardships involved: I’ve seen situations which can only be resolved by an insurance company paying out; sometimes such issues take years to resolve, with little or no fault to be found with the resident. Other times there are mental health issues at play, with matters such as hoarding or paranoia evolving to the point of interfering with their relationships with their neighbours and resulting in by-law complaints. Adding fines to these kinds of situations does little to resolve them, and can often make the situation worse rather than better.

Our by-laws are largely only enforced on a complaint basis, which is to say, our officers have enough to do without patrolling the streets looking for by-law infractions. The exception to this is parking, because by the time someone complains about a parking infraction and an officer can get out to check on it, usually the car is long gone. (Even so, patrolling for parking infractions is a real mixed bag; some days an officer could spend all day looking for infractions and find none, and another day they might not patrol and miss out on a ton of parking infractions.) Because by-laws are mostly enforced on a complaints basis, enforcement of by-laws doesn’t always happen because an infraction isn’t actually bothering anyone–or at least, it doesn’t bother anyone enough to make them lodge a complaint. No complaint, no enforcement. That can create a sense of “no harm no foul” about by-laws, at least for some people; and it can also make enforcing a by-law feel arbitrary to residents, because why should I get a ticket when so-and-so does this all the time with no consequence? And of course, the nature of a complaint-based system is that it inherently involves tension with neighbours: if you have a by-law officer at your doorstep it’s probably because one of your neighbours called them, and that doesn’t feel good.

So to summarize: by-law enforcement is inherently weak, because

• We can only issue fines, which are inherently unfair because they don’t take into account who can afford to pay them;
• We don’t respond to every single by-law infraction, usually only those that are initiated through a complaint, making enforcement inherently unfair in the absolute sense of the word;
• The tools we have (fines) aren’t helpful in very many of the situations we see;
• The process of addressing a complaint comes with long timelines, with a complaint often taking months to resolve, which does little to address behaviour and feels very unsatisfying for complainants; and
• Initiating by-law enforcement often escalates a situation between neighbours, so things get worse before they get better.

The Biggest Weakness of By-Law Enforcement

I hope the above section makes it clear how weak our ability to enforce by-laws can be, but that inherent weakness makes the process even more vulnerable to its largest weakness:

The whole by-law enforcement process hinges on a person caring, at least a little bit, about the concept of the law.

To a person who cares about the law and their relationships with their neighbours, a by-law warning is usually more than enough to get immediate action. Most people have a sense of self-consciousness, not in the sense of thinking poorly of themselves but rather a sense of their own place in the community and their relations with their neighbours; such a sense usually makes by-laws about things like yard cleanliness and parking unnecessary, because we willingly and actively stay out of others’ way and do what we can to be supportive and helpful toward others. By-laws about noise aren’t often invoked against people who conscientiously keep the volume down (or invite all of their neighbours to the party!).

The fact that we have these by-laws at all is evidence that not everyone feels this way, and I want to be careful to avoid passing judgment here. There are a lot of reasons why people find themselves in a position to be breaking a by-law that is really only there to enforce basic neighbourliness. Earlier I mentioned hardship and mental health struggles; I’ve also seen by-law infractions that go back to misunderstandings about property boundaries, which sometimes extend backwards through previous property owners, etc. Very often a by-law matter comes to light because of a longstanding disagreement or argument between neighbours, and it isn’t up to me (or to our by-law enforcement officers!) to settle feuds.

And very, very occasionally there is a neighbour who, for whatever reason, just does not seem to care. Sometimes they don’t care about the law as a concept, or they don’t think it should apply to them for any number of reasons, or they don’t care what others think of them. We see this at other levels of the law too: tech companies that blatantly violate the law to train their AI models, or American politicians who flagrantly violate the law and then just change it later. The first and most powerful restraint of the law is the one internal to us, the part of us that respects the law in the first place and wants to abide by it. Without that, most laws are pretty toothless.

In such situations, dealing with by-law enforcement officers is a nuisance, not a corrective. The law states that a property owner has a time period before they must respond to a warning, and if they appeal they can extend that period; this is a very good thing for those who need that time, but if someone wanted to abuse this it’s quite easy to do so. Even if a fine is levied, if the person doesn’t pay the fine, nothing particularly challenging happens. Eventually it gets appended to their next property tax statement. Even if they choose not to pay property taxes at all, the process of putting them into tax arrears is also quite long. If someone put in the minimum possible effort to address the matter, it could stretch out for many years before there was any serious consequence aside from the escalating conflict with neighbours and any shame or concern that might arise from that.

Without that sense of shame or neighbourliness, there isn’t much we can do to enforce the rules that are really only there to ensure that we all have a sense of where the line of poor neighbourliness lies. And in the meantime, that might mean that multiple neighbours have longstanding concerns that they feel are not being addressed, despite the fact that our staff are working hard to address them. When I canvass a neighbourhood and more than one neighbour has the same complaint, I do pass it along to staff, and I end up hearing about all of the steps that staff have taken to address the matter. The one thing I would say we might be able to do better is follow up with complainants more, but very often there’s little more to add, as staff are themselves waiting for statutory timelines to elapse before they can escalate the situation or otherwise follow up. When there’s no resolution, there’s no way to satisfy complainants, so we all just wait and see. That doesn’t feel good for anyone involved, including staff.

Conclusion

Ultimately, then, by-laws are here to remind us to be neighbourly in situations where we might have been ignorant or thoughtless. We all have moments like that, and it’s good to have feedback to remind us to think of others. We should, I hope, not need it often!

The moments we need our enforcement officers the most are the situations in which they are often the least empowered to actually make a difference by the very nature of the system they operate within. Please be kind to them, and trust that they’re doing everything they can to address a situation. If you feel that they could be doing more in a situation, just know that they’re quite limited in the tools available to them; that they have numerous files open at any given time that they must split their attention between; that very few of these files are quickly or easily resolved; and that no fine can overcome a situation caused by hardship or illness, or a disregard for others.

That said, please don’t hesitate to make a by-law complaint just because you fear that it won’t be effective! They close a lot more files than I hear about, and most of the time most people are happy to comply as they are able. But as in all things, please do your best to be neighbourly in the first place, even if that involves having a difficult conversation with your neighbour. I find myself repeating, almost as a mantra, the phrase “everyone is just doing their best.” That applies to our staff, to ourselves, and even to a person who seems to be antagonistic or thoughtless. Sometimes our best isn’t great! But it’s a good reminder that humans are not villains, that people and situations are complex, and that in the end we’re all on the same team.