City Says It May Not Matter Who Put Nursing Student's Cardboard Box in a Public Trash Can
The City's prosecutor wants video of someone else moving the box as proof she didn't do it. Footage from other days isn't enough. The student is due in court Monday, facing a fine and costs.
A Georgian College nursing student heads to an Owen Sound courtroom Monday over a by-law charge she says she never should have faced. The City wrote the by-law, a City by-law officer laid the charge, and the City retains the prosecutor — but City Manager Tim Simmonds and Mayor Ian Boddy say the matter is out of the City’s hands.
Sherry, whom Owen Sound Current is identifying only by her first name, was charged under section 10.5.1 of the City’s Waste Management By-law after a by-law enforcement officer found an Amazon parcel bearing her name inside a public garbage receptacle blocks from her Owen Sound home in May.
She says she never put it there, that it was taken from outside her home, and that no one from the City contacted her as part of any investigation before the summons arrived.
Asked to produce video as proof, while charged without it
Sherry received the initial early resolution offer from the prosecutor on June 11. It gave her two options: plead guilty for a $500 fine plus costs, or go to trial, where on conviction the prosecution would seek the $1,000 set fine plus costs.
The disclosure package the Current has reviewed contains no photographic or video evidence of Sherry placing the box in the bin; the officer’s notes rest on the parcel’s shipping label.
That leaves the burden on Sherry. She told the Current an early resolution meeting with the City’s prosecutor took place on June 25, by telephone.
In an email provided to the Current, dated July 13, the prosecution restated the position it took at that meeting: “…if you have a photo/video of the household waste subject to this prosecution being removed, we will review it, and it will form the basis for reconsideration.”
The City used a Part III summons to lay the charge, which requires a justice of the peace to accept a sworn information from the officer setting out reasonable grounds.
Simmonds confirmed the City has no policy governing whether an officer proceeds by a Part I ticket or a Part III summons, and said a ticket “requires approved set fines, which not all offences have.”
Section 10.5.1 does have an approved set fine; the City provided the Current the schedule. The officer nonetheless proceeded by summons, which compels a court appearance, and at trial the prosecution seeks the same $1,000 set fine a ticket would carry.
The City also confirmed its officers do not always seek compliance before penalizing a resident. Under its By-law Enforcement Policy, officers “work to obtain voluntary compliance in most cases,” Simmonds wrote — but where an offence is more serious, a repeat, “observed during targeted enforcement (a ‘blitz’),” or “one where it is rare to catch a person committing that offence,” immediate penalties may be issued.
Under that policy, a resident can be charged with no prior contact. The records disclosed to Sherry show no efforts to contact her before the summons, and she says there was none.
Sherry provided the Current one video of a hooded person rummaging through her recycling, and another of two people walking away from her home with what appears to be bags of scavenged recyclables. (We are not publishing stills from the second video, to protect her home address.)
She says these are the videos she sent the City and its prosecutor. That footage is from early June — what she could access when she learned of the charge — and does not meet the prosecution's condition of video of the specific box in question being removed in May.
The City’s position on who put it there
In written responses to questions from Owen Sound Current, City Manager Tim Simmonds set out the reasoning behind the charge — and it does not turn on whether Sherry placed the box in the bin.
Section 10.5.1 “may apply in circumstances where a person did not personally deposit the waste,” Simmonds wrote.
Despite the Current prefacing questions to the City as a matter of public interest and stating that none of the questions concern any individual prosecution or evidence before the court, Simmonds declined to answer whether a name found on an item inside a public bin is, by itself, enough to lay a charge.
“The City does not comment on the evidentiary basis of specific investigations or ongoing prosecutions,” he wrote, though he did provide more information about who’s responsible when materials stored outdoors or put out for collection end up elsewhere.
“Responsibility for the proper storage, placement, and disposal of waste rests with the individual who generated or controlled the waste,” Simmonds wrote.
Simmonds referred to Section 10.5.1 in the bylaw, which bars any person from depositing, “or permit[ting] to be deposited,” household waste into a receptacle on public property “for the purpose of collecting garbage or recyclables generated on Public Property.”
He explained that “the term ‘permit’ may include circumstances where waste is not stored or placed in the manner required by City by-laws.”
The City’s by-laws require residents to set waste out at the curb for collection. The recycling containers the City provides are open blue boxes.
Simmonds did not say what a resident is required to do to prevent someone else from removing waste and moving it. There is a section of the bylaw for it, though. Section 1.15 prohibits picking over, disturbing, removing or scattering waste set out for collection.
When asked how many times the City had laid those charges, Simmonds responded, “This question would require substantial staff time to review historical files, and should be requested through the MFIPPA process.”
Every part of the process points back to City Hall
At each turn, the City directed the Current elsewhere for answers while confirming it sets each part of the process.
Council enacted the by-law. A City by-law enforcement officer laid the charge. The prosecution is run by SV Paralegal Professional Corporation — a firm the City confirmed it pays hourly, on an as-needed basis, with “no formal agreement in place” and no competitive procurement, on the basis that legal fees are exempt from its purchasing by-law.
The City said it sets the prosecutor’s general scope, reporting expectations and “applicable prosecution policies,” while leaving decisions in individual files to the prosecutor’s independent judgment.
Simmonds said the City’s position is that while it has adopted a By-law Enforcement Policy, “The Municipal Act, Provincial Offences Act, and other legislation establishes how enforcement occurs and standards for evidence.”
Mayor Ian Boddy’s only response to Owen Sound Current came on July 3, when he said, “It would not be appropriate for a member of council to be exerting political pressure on staff to interfere in a criminal or quasi criminal prosecution. The matter is in the control of the prosecutor. They have knowledge of the evidence and law.”
Asked whether any avenue exists for a resident who believes a charge was laid in error to have it reviewed outside a courtroom, Boddy did not respond.
Simmonds wrote, “There is no method to review a provincial offences charge outside of the courtroom. If a charge was ‘laid in error’, the prosecutor or By-law Enforcement staff may elect to withdraw the charge if the error is not administrative/correctable.”
He added that through the court process, a defendant may elect for an ‘early resolution meeting’ with the prosecutor.
That meeting took place in June.
The City said it has not extended any review mechanism to charges because the mechanism “is outlined in that Act, and is through the court process.”
What the City won’t release
The City declined to say how often this happens. Asked how many charges it has laid under section 10.5.1 since the provision was added in 2017, Simmonds said the answer would “require substantial staff time to review historical files” and should be sought through a freedom-of-information request.
It was the same answer he gave when asked how many times the City has charged anyone under section 1.15 — the provision making it an offence to go through another person's waste set out for collection.
Sherry’s file has moved through the City and the courts since May. A by-law officer inspected the bin and issued the summons; a justice of the peace signed the information the summons required; the City's hourly-paid prosecutor made a June 11 early resolution offer, took part in the early resolution meeting and set out its position in a July 13 email; and the summons set a first court date of June 22, since adjourned to Monday.
The City has not put a cost to that work; it described its external prosecution services generally as “a low-dollar expenditure.”
The person who removed the box has not been identified. Nothing in the records disclosed to Sherry indicates the City investigated who put the box in the bin before laying the charge.
The nursing student is due in provincial offences court on July 27 and said she intends to represent herself. Legal Aid Ontario does not issue certificates for provincial offences matters like Sherry’s, so a defendant who wants a lawyer pays out of pocket.
She has said the case has left her “on edge” and reconsidering whether to stay in Owen Sound after she finishes her nursing degree.
“I have to miss school for this,” she told the Current, “and to think, we are already short on nurses.”
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