Wednesday, March 7, 2018

Niagara Region Disembowels the Charter

The Regional Municipality of Niagara has eviscerated the heart of our Charter of Rights and it has done this with willing accomplices from the Niagara Regional Police and the Office of the Ombudsman. Regional Chair Alan Caslin cannot be permitted to shrug off the responsibility we call Regional Council and Regional Government. His leadership should have ended with the public knowledge of his personal association with Justice Edwards but this is Niagara, where truth, news and facts were filtered through a cheesecloth of censorship.

On December 7th 2017 a storm exploded at Niagara’s regional council meeting. The consequences of this storm spilled out of the teacup to affect the very foundation of our Canadian Democracy and our rights as Canadian citizens.

During a council meeting open to the public and media, it was announced that a closed door meeting was to be conducted. In many municipal council chambers that means the council and municipal members leave to another room and have that portion of the meeting. At Niagara’s Regional Council the public and media are asked to leave the chamber and only return once that portion of the meeting is over. On December 7th 2017 Fort Erie Regional Councillor Sandy Annunziata claimed that Preston Haskell, who was sitting at the media table, had hidden his voice recorder under his cap and left the chamber. The implication here is that Preston Haskell wanted to secretly record the closed-door portion of the council meeting.

Sitting next to Preston Haskell was reporter Bill Sawchuk from The Standard, with his laptop open and note pad. Bill Sawchuk also left the council chamber, leaving behind his laptop on the media table.

Councillor Annunziata’s apparent panic resulted in the seizure of Bill Sawchuk’s laptop, notes, and Preston Haskell’s personal recorder. In addition Sawchuk was told by Region’s General Manager Chris Carter to leave the building, and if he did not comply he would have to deal with Niagara Regional Police (NRP) officers.

It has to be made clear from the beginning that the seizure of private property was by Niagara Regional Staff not by the Niagara Regional Police. This was an unlawful seizure of personal property by Regional Staff. No law in the Criminal Code of Canada had been broken by either Haskell or Sawchuk, no section of legislation from the Municipal Act had been breached, and no municipal by-law exists that prohibits the recording of council. Who provided the legal authority to anyone at Region to seize personal property?

Bill Sawchuk called his newspaper, The Standard called their lawyer, and Sawchuk’s laptop and notes were returned to him four hours later. Preston Haskell on the other hand is a blogger and private citizen and if he called anyone it may have been his wife. His recorder was kept by Region and turned over to Niagara Regional Police the next day.

Now the destruction of the very basic principles as guaranteed by our Charter of Rights and Freedoms really becomes alarming. No crime of any kind had been committed, not by Sawchuk nor Haskell. Haskell’s recorder was seen on the desk clearly in the open and in the livestream recording of the meeting until the closed-door meeting was called. Since the seizure by Region of the recorder, Regional Councillor Tony Quirk from Fort Erie had posted on Facebook as saying that it is “a violation of the criminal code to attempt to record a conversation or deliberation to which the party attempting to record does not have standing." That is absolutely false and Councillor Quirk has been asked to explain his statement. Councillor Annunziata laid claim to “political skullduggery,” and has since refused to comment. All of this points to an insane overreaction by Regional Councillors and the mindless response by Regional Employees. The Director of Legal and Court Services, Donna Gibbs, was present; surely she is aware of the law? 



The seizure had been committed by a private individual; yes this person is in the employ of the Regional Municipality of Niagara but still a private individual. This seizure was unlawful and may even be considered as theft. Niagara Regional Police had been called but only to bully Bill Sawchuk to leave the building. Those police officers did not speak to Preston Haskell, who had left the building before the police arrived, nor did they seize any other property or search anyone. After returning Sawchuk’s personal property Regional Staff kept Haskell’s recorder and later handed it to Niagara Regional Police. The first screaming question is what did the regional employee say to the police? Police officers are expected to have a fundamental understanding of the law and if in doubt then it would be expected that an officer would approach someone with more stripes for clarification. What was the justification or motivation for NRPS to accept this piece of personal property? Did they ask how did it become the possession of Regional Staff, and why? Regional staff had no lawful authority to seize personal property when no crime had been committed.

Researching the law surrounding seizure of property in the Criminal Code of Canada and the Canadian Criminal Law Notebook written by Peter Dostal, a lawyer with the Public Prosecution Service of Nova Scotia, only more alarming questions arise. As Peter Dosal states, “The Canadian Criminal Law Notebook is a legal reference covering the principals and rules set out by the Criminal Code and case law. The Canadian Criminal Code and the years of accompanying case law have created a dense field of law full of rules and expectations that are not always readily known to most people including practitioners.” These last words appear to hold a great deal of weight. Mr. Dostal finishes his introduction with: “It is divided into five essential areas, substantive criminal law, criminal procedure, search and seizure, evidence and sentencing.”

Canada’s Charter of Rights and Freedoms under section 8 states, “Everyone has the right to be secure against unreasonable search or seizure.” The Canadian Criminal Law Notebook (CCN) expands further on section 8 of the Charter when there appears to be an intrusion on a person’s reasonable expectation of privacy. “An expectation of privacy is a normative rather than a descriptive standard. It is concerned with the degree of privacy needed to maintain a free and open society, not necessarily the degree of privacy expected by the individual or respected by the state in a given situation.” The CCN continues, “the determination of privacy rights is made from the independent perspective of the reasonable and informed person who is concerned about the long-term consequences of government action for the protection of privacy.”

Did Bill Sawchuk and Preston Haskell, both sitting at the media table, side-by-side, have a reasonable expectation of privacy? Sections in the Criminal Code, such as s.487 and s.489, provide the rules for Search and Seizure. Further, s.490 provides a comprehensive scheme for the management, return or disposition of items that have been seized. Ideally in any situation any seizure of property should occur after a Warrant to Search and Seize has been approved by a justice. There are circumstances where Warrantless Seizure is permitted under s.489, depending on specific circumstances of an incident. The whole issue of seizure with or without warrant has to be based on a peace officer’s belief of reasonable grounds that the item seized was a) obtained by crime, b) used in a crime or, c) affords evidence of a crime.

“This provision permits an officer who is executing a warrant to make a warrantless seizure of anything he believes on reasonable grounds has been used in the commission of an offence. The legal test for reasonable grounds to believe should be the same as that for Warrantless Arrests. It must involve an objective basis for the belief which is based on compelling and credible information. It is something more than mere suspicion, but less than the standard applicable in civil matters of proof on the balance of probabilities.”

As stated, the rules surrounding search and seizure – with or without a warrant – are intricate and legally extensive. On December 7th 2017 no police officer seized any item of personal property belonging to either Bill Sawchuk or Preston Haskell. In fact the NRP were called on the advice of Regional Councillor Dave Augustyn. Those NRP officers were only used to bully Sawchuk into leaving the building without his personal property. The seizure had already occurred behind closed doors, with no witnesses other than self-interested regional staff. If Sawchuk had not agreed to leave the building on what grounds could the NRP physically escort or arrest him? How can anyone behind those closed doors be trusted as a witness to the facts? Were cameras still recording after the doors were closed as a record of the closed door meeting?

Rules relating to seizure without a warrant state, “Every peace officer and every public officer who has been appointed or designated to administer or enforce any federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament, who is lawfully present in a place pursuant to a warrant or otherwise in the execution of duties may without a warrant, seize anything that the officer believes on reasonable grounds, 

a) has been obtained by the commission of an offence against this at any other Act of Parliament;

b) has been used in the commission of an offence against this or any other Act of Parliament; or

c) will afford evidence in respect of an offence against this or any other Act of Parliament.”
    
Who at Region was the public officer appointed or designated to administer or enforce any federal or provincial law? It appears Regional Councillor Sandy Annunziata did the search of private property claiming, “heightened awareness of the presence of political skullduggery,” and Councillor Dave Augustyn advised to call the police in the panic. Are either of these two councilors qualified under this rule? A regional employee was then instructed to physically take Sawchuk’s computer, notes and Haskell’s recorder, and take them somewhere. Who gave this direction, was it Regional Chair Alan Caslin? All of this was done behind closed doors and under the nose of Donna Gibbs, Director of Legal and Court Services.

Sawchuk’s computer and notes were returned to him after four hours as the newspaper unleashed its legal people onto Region, but not the recorder belonging to Haskell as previously stated. It was not until the following day that Region took the recorder to the NRP. Where was it held? Who had access to the recorder all those hours? What was said to the police to justify the unlawful seizure and custody of personal property?

As with Arrests and Search and Seizure there are rules under the Criminal Code for the detention of seized items. Under s.490 a Report to Justice must be provided as soon as possible regarding the thing seized. Normally this report is brought to the justice who signed the search warrant, in this case no warrant existed: a third unlawful party had seized the voice recorder, not the NRP. What did the NRP provide to a justice as reasoning why the thing was seized? What crime did the NRP claim was committed and by who? Sections 489 and 487 provide the parameters for any seizure yet how did this unlawful seizure by a third party satisfy those sections and the justice?

In R v Garcia-Machado, 2015 ONCA 569, “the judge found that Garcia-Machado had “a high expectation of privacy in the items seized, both of which contain a high level of personal and private information.” He concluded that “police failure to report to a justice as soon as practicable rendered the otherwise valid search unlawful and unreasonable, contrary to S.8 of the Charter.” He then excluded the evidence under s.24(2) and acquitted Garcia-Machado.” (Blue Line, ‘Untimely report to justice breached charter’ by Mike Novakowski, September 8th 2015)

This was the result when the initial search was valid and conducted by a police officer. The Crown appealed to the Ontario Court of Appeal arguing that s.8 of the Charter had not been breached but the court rejected the Crown’s submission. It is difficult to understand what the NRP used in the report to justice in this issue, and what crime was claimed to have been committed.

It was interesting to read Regional Councillor Tony Quirk’s comment thread on Facebook when he said, it is “a violation of the criminal code to attempt to record a conversation or deliberation to which the party attempting to record does not have standing.” This sounded like official or formal language but sadly it was only Councillor Quirk’s paraphrasing technique. Councillor Quirk was asked where did he find this quote in the Criminal Code and his first response was short and simply stated a reference to Section 184.

Section 184 of the Criminal Code has a heading which reads Interception of Communication, with subsection (1) stating: “Everyone who, by means of any electro-magnetic, acoustic, mechanical or other device, willfully intercepts a private communication is guilty of an indictable offence.” It is this that Regional Councillor Quirk paraphrased and posted on Facebook. At this point it should be noted that some sections of the Criminal Code require cross-referencing to other rules and common practices leaving the language of the Code somewhat dated. One such section relates to Duelling and in today’s society might be outdated, unless street racing somehow loosely falls under its jurisdiction.

Still subsection (1) Interception has directly below it “Saving provision,” a get out of jail free card so to speak. Here it states, “Subsection (1) does not apply to, (a) a person who has the consent to intercept, or implied, of the originator of the private communication or of the person intended by the originator thereof to receive it.”

As Preston Haskell had his recorder sit on the media table in front of him in full view of any and all council members, with permission to record the council meetings, Councillor Quirk was asked if he read this subsection. Like a politician anywhere Councillor Quirk ignored that question. Instead Councillor Quirk said in his second email, “Those Search and seizure provisions don’t apply to equipment left behind and abandoned. Which is what happened. The owners forfeited those rights when they left the equipment behind in closed doors.”



According to Regional Councillor Tony Quirk any individual who may leave to go the washroom, or leave for any other reason expecting to return and find the doors close behind them lose ownership rights and protection of the law. Councillor Quirk seems to only paraphrase the Code and ignore little things like Reasonable Expectation of Privacy, as discussed earlier.

Preston Haskell published this statement on his blog in relation to the seizure incident at Region: “It turned out that security had my hat, scarf, coat, camera and even the recorder pouch but no recorder. Dangling the recorder pouch in my face security asked if the recorder for the pouch was mine. I answered in the affirmative. He said it was too bad because it was confiscated and I wouldn’t be getting it back.”

Haskell repeatedly said that he left the council chamber to go to the washroom before the closed door meeting was called. This can be easily verified by the video recording of the meeting as to the truth of Haskell’s statement. It also explains why security came out to give him back his property, namely the hat, scarf, coat and camera. Yet it does not explain why Councillor Quirk would say in writing ”…equipment left behind and abandoned. Which is what happened.” Why would Councillor Quirk make a statement such as this which is false?

The seizure of personal property by regional staff was clearly unlawful. Handing over of the illegally seized item to the Niagara Regional Police continually raises the question as to why did the NRP take this illegally seized thing. In an email dated February 14th 2018, Stephanie Sabourin, NRP Media Relations Specialist said, “The recording device remains in the possession of the NRPS pending a determination by the Ombudsman. We maintain possession of the device under a detention order made following a Report to Justice. This allows us to maintain possession during our investigation, other proceedings and while determining lawful ownership.”



This response by Stephanie Sabourin for the NRP was bewildering as the device was illegally seized, no crime had been committed nor any law broken, at least not by Haskell, and its legal ownership was clearly stated from the moment it was seized. All of this simply did not make sense so further clarification was sought from NRP’s Chief of Police. Acting Inspector Luigi Greco, Executive Officer to the Chief of Police responded with an email on February 15th 2018. Acting Inspector Luigi Greco supported the information provided by Stephanie Sabourin and added, “I can confirm that the property in question is in the lawful possession of the Niagara Regional Police Service to ensure the continuity of the item in respect of the ongoing investigation by the Office of the Ombudsman.” Preston Haskell had never been charged by the NRP for a crime, nor was there any crime committed by Preston Haskell. The Ombudsman has no power or authority to do anything but make recommendations to government bodies, he has no authority over private citizens or their personal property.

Ontario’s Ombudsman has an Act in the Legislature which sets out its powers and authority. The Municipal Act under sections 238 and 239, and in particular 239.1 also sets out procedures for meetings, procedural by-laws and investigations. All of this simply details the process of the investigation by the Ombudsman, and even that authority is limited over the members of government not private individuals. No Ombudsman has any authority to seize personal property, compel a private citizen to provide any information or testimony, nor to instruct the police to have possession of personal property on their behalf.

“Ombudsman to Investigate Incident At Niagara Council Meeting” was the title of a press release dated December 14th 2017. According to the press release provided by Linda Williamson, Director of Communications, there had been “several complaints related to the incident” received by the Ombudsman. In response SORT was unleashed, the Special Ombudsman Response Team, leaving images of suited individuals sliding down ropes from choppers in the sky. Somehow this vision is deflated like with the last paragraph of the release by Linda Williamson.

“The investigation will be completed as quickly as possible, Mr. Dube said. Under the Ombudsman Act, he may find the actions of a public sector body to be (among other things) contrary to law, unreasonable, unjust, oppressive, improperly discriminating or wrong – and make recommendations for improvement. Although the Ombudsman’s recommendations are not binding, they are almost always accepted.” These words leave a warm fuzzy feeling of confidence that everything is going to be alright now.



Linda Williamson was asked in an email dated February 16th 2018 whether or not the Ombudsman’s Office had requested Niagara Regional Police to maintain possession of the Haskell recorder. Her response was “our office cannot comment until our investigation is completed and the Ombudsman’s report is issued.” The secrecy of a report that is nothing more than a non-binding recommendation is almost comical.

Bill Sawchuk was asked if he had been questioned about what he saw that night in December of 2017, after all he was sitting next to Preston Haskell. Sawchuk’s response arrived with a cute cat emoji, “I was asked about what happened by both the ombudsman and police. The ombudsman has asked me not to talk about my interview until their report is issued.” Preston Haskell was asked if he had been questioned by the Ombudsman’s Office but he refused to answer.







At the end of all this nothing will happen and no one will face any consequences for their illegal actions. Regional staff simply stole personal property in plain sight and handed it to Niagara Regional Police, who are aware of the ownership of the property but claim to retain possession for Mr. Dube, the Ontario Ombudsman and his investigation. No laws had been broken by the owner of the property, namely a voice recorder, and the Ombudsman’s report is nothing more than a pompous folly.

Finally one thought pops up like teenage pimples. What would be the result if one was to take a handheld voice recorder, put a hat over it, and attempt to record a group of a dozen or more individuals speaking some 15 to 20 feet away?

What was this all really about?




Wednesday, November 29, 2017

Hypocrisy: A Human Trait or an Acquired Accessory?

Wow, now this could start a loud discussion leading off to all kinds of tangents relating to humanity and our endeavours. Most of us know what hypocrisy is, Webster's describes it as “pretending to be what one is not or to feel what one does not feel, a pretense of virtue or piety etc.” Is this something many of us have come face to face with at one time or another? Of course the answer is yes. Can we say it was a pleasant experience, usually no, as we are left angry and disappointed.

As a publisher and journalist, meeting and interacting with a wide variety of people is a necessity. Each article has a life of its own, a purpose. For a journalist the right to freedom of speech is as important as breathing. At the same time this right has to be exercised with the acceptance of the consequences if taken too far.

There well be some who claim that such acceptance is hypocritical in itself. How can freedom be fenced in with conditions? In response one can ask then if hate speech is to be accepted as free expression without consequence? At times this debate tethers on a tight rope attempting to find an acceptable middle ground.

Social media and the world of the Internet provides a different angle to the debate of free speech. Today anyone can open a Twitter account and post any comment on any subject at any time. Knowledge or experience no longer are prerequisites; an armchair quarterback is able to dissect the latest Bills game from his lounger, bed or the washroom's comfy chair for all to see. At the same time social media can provide an open world to exchange thoughts and opinions with others who would not be reachable in normal daily travels.

So is it a pretense of virtue or piety to expect, even demand, restraint or consequence for one's words while still believing in freedom of speech? No one said this was an easy debate, even if the question of the nature of hypocrisy will bring many to opposite sides.

To answer at least one question, hypocrisy is within all of us and usually it is not intended. How easy is it to say one thing and for whatever reason do the opposite? True there are professions which require the skill almost as a prerequisite, such as politics. Children are open and honest, it is rare in natural circumstances to find a child pretending other than in a game. Hypocrisy is definitely a honed skill we pick up through the ascension from childhood to responsible and mature adulthood.

Now that being said the tie into the hand ringing question of free speech and consequence comes in the form of a living example. It is a situation unfolding at this very time revolving around Twitter. Social media in its various forms can be entertaining, it can be informative, and it can be a tool used to attack and damage the character and reputation of others. More alarming is when this attack is aimed at a total stranger.

On Twitter, acting Captain Andrew Gill, a member of the Niagara Falls Fire Department, posts a great deal about the Buffalo Bills football team, information and news relating to the fire department and personal tidbits. Gill also at times sees himself as a socio-political commentator and will throw out posts relating to local political events. Prior to his uniform days at the Niagara Falls Fire Department, Andrew Gill had traveled through varying career paths. One of these adventures brought Gill to the City of St. Catharines City Council as an elected City Councillor. This lasted only for one term, and although he tried to stay in the political arena, any attempts made had failed.

In 2011 Andrew Gill appeared on the pages of the local newspaper The Standard, as he had sued Preston Haskell for defamation. At the time Haskell published the newsletter Niagara Winners Circle and had made comments relating to Gill whilst he was still a City Councillor. Gill took offense to the comments by Haskell claiming they were not true, sued and won. The Standard's article by Marlene Bergsma, who no longer works for the paper, wrote that Deputy Judge Brian Marotta had said that Haskell displayed “reckless disregard for the truth.” On the witness stand Andrew Gill spoke emotionally about how this article affected his father and the pain it caused his family.

Gill had a lot to say after the trial. He claimed that he filed the legal action against Haskell to protect other civic minded people who may want to run for public office but would be afraid to make themselves vulnerable somehow. Bergsma quoted Andrew Gill saying: “This was never about money. This was about someone taking a shot at my integrity and my credibility and you can't put a price on that”, and that “The judge sent a strong message you can't say whatever you want where you want, and when you do say something, it has to be based on facts.” These are wonderful strong sentiments expressed by the winner Andrew Gill in 2011.

That was 2011. Now in 2017 Andrew Gill had done a complete turnaround. Gill made two tweets on July 27th, 2017, the first at 8:37am and then again at 8:51am, attacking an individual he had no personal business dealings with at any time. First he said, “Just heard Niagara Truth Warrior Davidoff hit another home run today!” with a “What a Loser” GIF.

First of all Gill posted this at 8:37am; no courts begin before 10:00 am. More importantly the Davidoff Gill refers to is Alexander Davidoff, who was not scheduled for court on the 27th of July. Andrew Gill lied! There was another Davidoff scheduled for court on that day, not Alexander Davidoff. Court lists are available on the web, did Gill have trouble reading English? Or was this information passed on to him by another individual?



Not all issues brought before a judge end in one party winning or losing; there are many times when a judge will simply hear motions as an impartial adjudicator. So how could Gill predict any outcome, especially at 8:37am before court even begins? Did he hold onto crystal balls to consult or was it someone else who had them? Mixed in with the lie and other glaring questions that test anyone's sanity, there is the label of “Niagara Truth Warrior.” Where did this come from? Clearly it is done in an insulting manner, but who came up with it?

This was not enough for Acting Niagara Falls Fire Captain Andrew Gill. Fourteen minutes later, at 8:51am, he tweeted again, “Always entertaining when Niagara Truth Warriors Petrowski, Bracken, Haskell and Davidoff go to court! #Losers.”

Andrew Gill had proven that to lie publicly is not a problem for him, and he did so again in the second post, literally minutes later. The second post also has a GIF with an individual sitting at the side of some machinery and being repeatedly hit on the head. Here Gill expands his tag of 'Niagara Truth Warriors' to include three other people. One question begs for an answer, why include [Alexander] Davidoff with the other three and that tag?



A written notice was sent to Andrew Gill informing him that legal action was being prepared. On August 24th 2017 Gill responded with an email. He first confirms receipt of the notice and then proceeds with this, “As a gesture of good will and without prejudice or acceptance of wrongdoing. I will remove the two tweets in question and offer my apologies to you for all the hard feelings my tweets may have caused you.”

An astounding “gesture of goodwill,” but mind you “without prejudice or acceptance of wrongdoing,” and he removed the two tweets. These posts were public and intended for one purpose; this 'apology' by Gill was in a private email. Not only was the apology laughable, he accepted no wrongdoing. He lied with the intent to damage the reputation of a stranger but he did no wrong.

Being the individual that Andrew Gill had apparently shown to be he did not disappoint. On September 1st 2017 he could not resist and posted again: “This is what the Niagara Truth Warriors do to me” with a GIF of a Minion vomiting.




As he had provided the names of the other so called Truth Warriors it was easy to check the web if any of these individuals had made any comment regarding Gill or on any community matter. No, the web was silent and the target of this post was quite clear.

Now one can come to some conclusion on the issues raised. Should Andrew Gill's actions be considered to be simply the exercise of free speech or should there be consequences and restraints? Gill himself went to court against Preston Haskell in 2011 for what he claimed was commentary published which was not based in truth. In addition to the issue of free speech Gill has displayed a perfect example of hypocrisy in action. Simply refer to the words attributed to Gill by the reporter after the trial in 2011, and compare them to his actions and words in 2017.


Andrew Gill now sits in the same chair as he put Preston Haskell in back in 2011. His defense will be extremely interesting to hear.

Tuesday, October 3, 2017

Mixology of the English Language

Integrity, what is it? Webster's describes integrity as “the quality or state of being of sound moral principle, uprightness, honesty and sincerity.” An admirable quality in any human being without a doubt. Can we expect this quality in our elected officials? If integrity is too much to look for in those we elect then what can we look for as possible standards? If these qualities are too high a standard to use as a benchmark for those in public office certain codes governing acceptable and non-acceptable conduct are then designed.

When codes are designed to govern professional ethics and conduct, or procedural equality and fairness then without a doubt we will find someone in breach of these rules, and alleged breaches need to be examined and investigated. Now ordinarily, this investigator can be the head of a particular organisation or a senior individual within a human resource division. In politics most often an outside adjudicator is appointed who is required to be completely impartial and immune to any bias. These individuals are provided with the title of Integrity Commissioner, lending an air of authority and power.

Slap together Integrity and Commissioner and you have a political watchdog. These ICs come in all shapes and sizes like the varying levels of government. At the municipal level they have their authority outlined in the Municipal Act though they are limited in any consequences they can impose on politicians found to have breached the code.

In the Niagara Region much has been discussed in relation to the benefit of an Integrity Commissioner. Regional Chair Alan Caslin cried that he had been bombarded with too many complaints against his councillors that he could not cope with it. For that reason the Regional Municipality of Niagara appointed one John Mascarin of Aird & Berlis, a Toronto law firm, as its interim-Integrity Commissioner. John Mascarin was at the time the permanent IC for the City of St. Catharines.

Controversy surrounded the appointment of John Mascarin around potential conflict of interest. Mascarin's law firm Aird & Berlis just so happened to represent Chinese developers in negotiation with the Niagara Region for a possible $1.5 billion land development. Still it was John Mascarin's shining star status that appeared to have blinded all on this minor inconvenience. After all he is a scholar in Municipal Law and teaches at Osgoode Hall! He had written chapter after chapter on municipal matters, specifically on the OMB and land development regulations, in addition to being a practicing lawyer in the field who has appeared on television and other media to comment on all manners of the subject.

It is important to note here that Integrity Commissioners have no set rules or procedures to follow. The Municipal Act only provides the description of their authority and nothing else. Plumbers, journalists, lawyers – they all have codes of professional ethics. Even politicians do; after all if the politician breaches his or her code they face off with the Integrity Commissioner. Yet the Integrity Commissioner has no codes or procedural rules at all. If there was an association for these watchdogs it probably would have as a motto, 'Come as you are, Do as you please'.

Chair Alan Caslin unloaded the heavy burden of some six or seven complaints that he could not handle upon the broad shoulders of this certified expert. This expert cleared two councillors and dismissed the complaints as smoke and mirrors, while stepping away from a third against Alan Caslin himself. The remaining three found the expert with rolled sleeves and dug in. All three were against Niagara's favourite son, Regional Councillor Andy Petrowski. On May 18th 2017 John Mascarin rode into a public meeting of Regional Council to present his report. These words uttered by John Mascarin of Aird & Berlis are of great importance; they were on record and cannot be denied.

Not long after the May 18th public meeting two mayors, Jim Diodati of Niagara Falls and Frank Campion of Welland, found themselves revealed on Facebook hurling out the Nazi salute. This thoughtful gesture was performed during a Niagara Peninsula Conservation Authority Board Meeting, of which both are board members. For two mayors to do something like this was mind boggling. Yet this incident together with Mascarin's May public appearance became the motivation for an exercise.

Each case had a clear and specific reason on its own to require an investigation. The first centred around two mayors: Jim Diodati of Niagara Falls and Frank Campion of Welland. These two public servants decided that a Nazi salute was somehow a thing of jest. Thinking it was a joke they hurled their arms out during an official meeting of the Board of the Niagara Peninsula Conservation Authority. A second request was in relation to City of St. Catharines council member David Haywood and an incident revolving around his conduct on social media.

In the case of the two mayors the reasoning was simple: as both mayors are sitting members of Regional Council, both would be under the jurisdiction of the Regional Code of Conduct. As it turned out that was an error in thinking and John Mascarin responded on July 12th 2017. It was a four page report to simply say at the end, “Based on the foregoing, the Request has not been filed in the proper forum. My jurisdiction does not extend to the NPCA, which is a separate corporate body with its own code of conduct. Accordingly, I suggest that you may seek to modify your Request and submit it to the appropriate oversight officer at the NPCA for consideration.” Modification was indeed conducted and the request forwarded onto the Chair of the NPCA, Sandy Annunziata.

Now the second investigation request had a different outcome, the exercise provided tangible results. This case revolved around Merritton Ward, City of St. Catharines Councillor David Haywood and an exchange with him on Facebook. At the May 18th Regional Council meeting John Mascarin had a great deal to say on a number of issues, one being the whole social media thing. This is a good time to note that of the three complaints John Mascarin chose to investigate, two centred on Councillor Petrowski's outings in the world of social media.

On May 18th John Mascarin stood before a public meeting of Regional Council and said a number of things. He was there in what appeared to be a role of educator or an expert, as he made a point of how he had helped dysfunctional councils. He also stood there with a price tag dangling out from the edge of his sleeve. Aside from the cost it is important to ascertain just how much does a lawyer believe in the words he utters, more so when that lawyer parades as an Integrity Commissioner. Does he fit the description of the title of Integrity as described in the opening paragraph?

John Mascarin said, “The whole purpose of social media is to impose your views, if you're tweeting onto other people.” If this is true it is a very narrow minded view of social media. Just prior to this statement Mascarin had this to say: “I looked at the word impose and thought it meant foist, inflict, press, urge all these sorts of synonyms, the fact that someone tweets something, you're distributing, you're making communication. To me that's putting it out there, that's imposing, you are sending it out in the Twittersphere, you're imposing, you're propagating your view, that's the whole purpose of social media.”

As stated the motivation behind the exercise was to test John Mascarin himself and his rhetoric used to justify his position and his actions. The investigation request brought to his attention was about a Facebook exchange with a City of St. Catharines Merritton Ward Councillor David Haywood, accompanied by four photographs. Remember according to John Mascarin the whole purpose of social media, Facebook being a big chunk of it, is “to impose, to foist, to inflict, to press, to urge.”



St. Catharines once bragged it was the Garden City, today it is full of weeds. Look at the garden city at the intersection of Glendale Ave., and Almond St., in Merritton. Weeds reach up to 4 feet and more in height, their seeds are blown into yards throughout the neighbourhood. Dogwood insanely planted obscures the intersection to a point that the crosswalk is dangerous to use and traffic entering Glendale from Almond always at a risk of collision. Mayor Walter Sendzik could not give a damn, and the Merritton Ward Councillors Haywood and Stevens nowhere to be seen. Yet try and let this happen in your own front yard and see what the city will do.”

This post did not tag anyone. The mayor's name was clear and in full, the two councillors just mentioned by last name the way it is done in general conversation, not intended to be specific or personal. A short time after the original post Councillor David Haywood came with this first comment, sounding annoyed with the post. Haywood said: “the first I have heard of this Alexander. Nowhere to be seen??? Try calling me or emailing me I can tell you I haven't heard from you so please try using the same energy to pick up the phone as you used to complain. We share the same passion for the local environment but I cannot read minds.”



Young Councillor David Haywood seemed to take a Facebook post very personally which was not aimed directly at him. Maybe the whole 'Facebook Friend' is taken to mean something more by Haywood. His first comment was ignored, there were other people who had made comments, but Haywood's little stomp was also ignored. Haywood then came back again, and said “I will have the areas looked at. We represent you Merritton residents. We are your voice. To expect us to just know things or to say for us to 'look' around doesn't help anyone. It is condescending to state it in that fashion. Counterproductive.”

Wow, Councillor David Haywood, the voice of the residents seemed a little more annoyed. Was it because he was ignored by the original poster? This time he got his response. “I thoroughly enjoy a public servant with a soft skin. First of all for several years I have spoken to the supervisors who used to come and look at this garden with no result. This 'garden' has been like this since the early days of Spring. Shame is on the public servant who is too busy shifting responsibility on a member of the public. You Councillor Haywood want examples of the actions of councillors representing Merritton. I suggest you think twice before you as a newbie open that Pandora's Box. You have city crews pass weekly I guess that is not a problem for you either. Do not start something you can't finish. If you really care than DO something about it if not do the usual and blame someone else.”

Now Merritton Ward, St. Catharines Councillor David Haywood lost his cool completely. He turned a general post on social media into something personal. That post was never made to be personal, nor was it aimed at Councillor David Haywood specifically. He decided to prod twice and when a response was provided only after his second prodding he lost his composure. Yet it is important to listen to Haywood's words in the opening, and when you do it gives an indication that he intended this to be personal from the beginning. Haywood's third comment read: “Nothing about soft skin. Just tired of you automatically taking the position as a foe to your representative in the Merritton Ward. How immature to tar the new representative based on how you feel past reps have acted. Sorry I am more rational than you and mature than you. I am not an armchair quarterback like yourself. I have emailed staff concerning this. As for starting something I cannot finish, bring it on!!! You will not scare or bully me. Looking forward to see what you can do – wonder what I will look in your cartoon.”

After posting his first comment he came back again when no response was given, why? Integrity Commissioner John Mascarin clearly expressed his interpretation of social media. He said, “the whole purpose of social media is to impose your views” and with the word impose he explained that he thought it meant to “foist, inflict, press and urge.”

An investigation request was prepared and filed against St. Catharines Councillor David Haywood. All documentation was prepared, copies of screen captures together with a signed Affidavit and handed to the City Clerk who as per the City's Complaints Process provides it to the Integrity Commissioner.

A great deal was said at the May Regional Council meeting by John Mascarin. He provided his interpretations on the whole purpose of social media. At one time he admitted that he was not very good with social media and didn't really understand it nor use it much. Mascarin was asked by Regional Councillor Burroughs how he treated complainants: “In each case I have written what I call a short ruling and I do attempt to explain why I did not proceed to a full investigation... I do communicate with the complainant um... in some cases the complainant will say I don't agree with you but I respect that you have given me some indication.”

City Clerk Bonnie Nistico-Dunk for the City of St. Catharines sent a letter via email dated August 9th 2017. She stated that “Mr. Mascarin felt that your allegations appear to contravene the following part of the Code,” then she quoted the pertinent section of the code. Nistico-Dunk then continued with, “Mr. Mascarin states that “the complaint, viewed objectively, does not set out reasonable and probable ground to support the allegation that the Councillor engaged in discredible conduct in contravention of the Code. It is my determination that the Complaint is frivolous and vexatious and that no investigation is warranted.” And yet, each of the three investigations that John Mascarin completed related to one regional councillor, two of which centred on social media. He chose to investigate a tweet by the councillor where he referred to the Mayor of Pelham David Augustyn as “plastic face.”

So a request for investigation relating to two mayors and a Nazi salute resulted in a four page response directly from John Mascarin to simply say 'no I can't'. An investigation request against City Councillor David Haywood brought a censored or selective report from City Clerk Bonnie Nistico-Dunk. So much for communicating with the complainant.

An email was sent to John Mascarin requesting clarification regarding his report and an explanation. Serious questions were asked relating to the short quote Bonnie Nistico-Dunk provided in her letter. Mascarin responded on August 14th 2017 several hours later and his response proved clearly he did not like to be asked uncomfortable questions. He may say one thing in public but what he really does appears to be very different.

Not one question was answered by John Mascarin, he simply said that he provided his report to the City Clerk as per the Complaint Protocol. He did attach a copy of his report and made one statement that was alarming, he said “I have briefly discussed this matter with the City Clerk and attach here to my complete formal response.” What did the Integrity Commissioner discuss with the City Clerk? Was the discussion prior to Mascarin providing his formal response? The City Clerk has no jurisdiction nor authority to discuss anything in relation to any complaint, all that Nistico-Dunk could do is receive the complaint and forward it on. The issue of who John Mascarin speaks with came up during the May Regional Council meeting. At the time he first admitted to speaking to people then back-tracked and claimed he had not.




Reading the report the number of questions ballooned, so many that no quarterback, armchair or not, could catch them all. City Clerk Bonnie Nistico-Dunk stated in her August 9th letter that “Mr. Mascarin felt...” yet Mascarin at no time refers to feelings in his report. Nistico-Dunk then took two sentences, combined them into one paragraph, and left out the core of Mascarin's report, why?

In his 'Assessment & Analysis' Mascarin quotes only selective words out of the complaint. Usually lawyers play this trick to intentionally misdirect meaning. Taking quotes that are limited and out of the proper context of the sentence is intentional, but what did the Integrity Commissioner intend here? Mascarin finished with this: “The complaint uses the word “attack” or variations of the term no less than six (6) times.” Was this simply a keen eye or was Mascarin acting like the Councillor's defense lawyer rather than impartial judge and jury he proclaims to be?

Paragraph two is the real gem and defense lawyer Mascarin truly shines. He says, “Admittedly, the Councillor uses a somewhat sarcastic tone in responding to the complainant...” It would seem that clear and literally black and white evidence in the original complaint was a waste of time on this IC. The Councillor did not respond, he initiated the conversation with intent. When no response was provided by the complainant to his first post then he came on again.

The very best from Mascarin is this, and no one on the courtroom drama series The Good Wife could do better: “the specific words used in the Councillor's remarks must be viewed in context to the posting made by the complainant which appear to be clearly intended to bait and prod the Councillor.” Here it is, lawyer Mascarin to Judge Mascarin, 'Your honour the councillor shot the guy but it was not the councillor's fault, he happened to be standing there'. As insane as this analogy sounds it does not come close to IC John Mascarin's.

So Mascarin claims that the original post baited and prodded poor young Councillor David Haywood. How? Haywood chose to come onto the conversation, when ignored he came again. He got a response which basically said to leave well enough alone. Councillor Haywood did not like that and said, “Just tired of you...,” and then went onto a verbal attack. As an elected member of government Haywood does not have the luxury of claiming he lost his temper, but at least in this case he had a good defense lawyer.

Just when one would think it is enough and the winning words had been spoken Mascarin continues, “I have taken into account that the facts giving rise to the Complaint occurred more than two years ago”, claiming that the complaint was filed on June 27th 2017. John Mascarin of Aird & Berlis lied! No publisher says anything like this easily in print, but IC John Mascarin lied in his final report. The original posting on Facebook was on July 12th 2015 and the complaint filed on June 20th 2017. Maybe Mascarin needs all his fingers and toes to calculate this?

Two years had not yet passed and the facts glaringly prove that Mascarin lied? Why? He said “In making my ruling I have taken into account...” It seems that the IC took into account a lie of his own making to make his decision. How much of his report is based on real facts rather than convenient interpretations?



An email was sent to John Mascarin and many questions were asked, in particular why did he lie. His response on August 17th 2017 truly shows how John Mascarin epitomizes the title 'Integrity'. This is the same individual who stood before regional council and the public throwing out his empty words. In his response he said, “My ruling speaks for itself. You may disagree with certain points or with the entire ruling but I am not prepared to respond further.”

Integrity Commissioner and lawyer John Mascarin of Aird & Berlis lied, then said that he took into account that lie in the making of his ruling. When asked to explain his lie John Mascarin said that he was “not prepared to respond further.” Maybe this is his way of taking the Fifth, even if it doesn't exist in this country.

John Mascarin has proven that the concept of Integrity Commissioners without a definitive code of conduct and set procedural guidelines are only a farce. These ICs are only tools for governments to either defame the reputation of a complainant or to attack an unpopular councillor. If one of those commissioners is caught lying and he or she simply refuses to explain themselves then what trust can be placed in them? Mascarin and his law firm Aird & Berlis pocketed public money for this, how is it possible for him to refuse to answer questions?

Still the insanity doesn't end here. Since Mascarin refused to explain anything, including his lie, some questions were sent to City Clerk Bonnie Nistico-Dunk on August 21st. It was asked of her if the report by Mascarin was provided to Council, whether Councillor Haywood was provided a copy of the Mascarin report and/or the request for investigation, and if anyone else had access to the report.

Nistico-Dunk responded the same day stating that “there is no report to go to Council on the matter.” She said “Councillor Haywood was advised of the complaint and was provided with a copy of the ruling,” and that she was not aware of anyone else who had been provided with a copy of the Mascarin ruling. On August 22nd one more question was sent. The question was simple; asking Nistico-Dunk who provided the Councillor with a copy of the ruling. On August 29th this response was received from the City Clerk: “Your original complaint was not provided to Councillor Haywood. The response was not forwarded to him from this office.”

Now the plot thickens and some confusion arises. First the City Clerk says that the Councillor “was advised of the complaint” but later that the “original complaint was not provided.” Nistico-Dunk also said that he was “provided with a copy of the ruling” and then later “the response was not forwarded to him from this office.” An email of August 30th was sent to attempt to find some clarity. The response was far from the expected.































John Mascarin on September 1st sent an email beginning with “I have been made aware that you have been corresponding with the Clerk regarding your recent complainant.” On August 17th the same John Mascarin ended his email when asked why he had lied in his ruling with, “I am not prepared to respond further.” Yet here he was holding City Clerk's Nistico-Dunk's hand and responding to questions asked of her! Maybe a resident of any city or town would expect that their communications with a senior city employee would have a little confidentiality. A 'Confidentiality Notice' appears at the bottom of every email from the City, including those of Nistico-Dunk's. In this case public servant Bonnie Nistico-Dunk went running to Integrity Commissioner John Mascarin to respond on her behalf!

The Municipal Act under Section 223.3(1) clearly outlines the role of any Integrity Commissioner. It states that “an Integrity Commissioner who reports to council and who is responsible for performing in an independent manner the functions assigned by the municipality with respect to:

a) the application of the code of conduct for members of council
b) the application of any rules, procedures and policies of the municipality governing the ethical behaviour of members of council

St. Catharines Complaints Protocol describes the Integrity Commissioner and his/her responsibilities on page 8. Nowhere in either of these two documents does it say the IC is the personal assistant of a public servant.

Mascarin says, “I understand that you are seeking clarification of certain questions that you have asked the Clerk,” and then provides four bullet replies or answers. He was asked to provide some clarification on why he lied in his report and how did he take into account making his ruling a lie of his own making. On that he refused to provide clarification.

Bullet number one from Mascarin states that “The council member was advised by the Clerk that a complaint had been filed against him and that he could make inquiries with me regarding it. The Clerk advised me that it has been the historical practice at the City for a council member to be made aware of any complaint filed against him or her.” Why didn't Nistico-Dunk say this from the beginning? Instead she played with semantics, evasion and omission. Nowhere in the Complaints Protocol does it inform the complainant that the complaint once filed is relayed to the councilor. Is it possible to believe anything Nistico-Dunk might say on this matter?

Bullets two and three are even more exiting. Number two states: “The council member introduced himself to me while I was at City Hall and asked me to verify that a complaint had been made against him.” Then number three: “The council member also asked if he could be kept apprised of the matter and I advised him that I would either be in contact to make inquiries of him or he would be notified of any disposition respecting the complaint.”

On May 18th John Mascarin was questioned by a Regional Councillor as to who he spoke with during any process of an investigation. At first Mascarin admitted to speaking with members of the public and then did an about turn and denied the fact. In this matter on August 14th Mascarin says, “I have briefly discussed the matter with the City Clerk.” On September 1st he says, “The council member introduced himself to me...”, and then “I advised him.”

Still the best was bullet number 4: “My ruling was provided to the Clerk in accordance with the Complaint Procedure and I advised her I would forward a copy of the ruling to the council member to discharge my undertaking to notify him.” Lawyer's language, don't you just love it. Words like “discharge” and “undertaking” sound almost official and correct somehow.

On August 14th, explaining why he did not provide a copy of his report to the complainant, Mascarin stated “My advisement to the City Clerk was provided in accordance with Section 4(4) of the City's Complaint Protocol in Part 3 of the Code.” From the City's Complaint Protocol page 11 heading 4, Refusal to Conduct Investigation, (4) “The Integrity Commissioner will inform the Clerk when an investigation is terminated or not advanced for reason cited above. The Clerk in turn will notify the complainant of this decision.”

Any possible procedural fairness has been destroyed by the City Clerk Bonnie Nistico-Dunk and Integrity Commissioner John Mascarin. It is impossible to understand how or why an IC would respond to a communication sent to a public servant. The Clerk is not a member of City Council nor has she got anything to do with the Code of Conduct. Mascarin refused to deal with the issue of the two mayors and their Nazi salute simply because they were part of a board with its own code. What code is Nistico-Dunk a part of?

As an Integrity Commissioner, John Mascarin made a public 'undertaking' on May 18th. He said that he always provides his reasoning on a matter and answers questions from any complainant. Mascarin was asked why he lied in his report – he refused to answer. He was asked to clarify points in his report, he refused to answer. He breached the City's Complaint Protocol by making a promise to a Councillor he had no right to.

What really happened here? It was a simple exercise questioning the stupid actions of a City Councillor on social media. This Integrity Commissioner had already set his own precedent on the issue. The result has been a mountain of unanswered questions. A City Clerk who intentionally evaded answering questions. This same Clerk carried out actions which put the 'integrity' of the complaints process in jeopardy. At the same time the IC lied in his final report and refused to clarify why he lied, making his report invalid. Taking things further, the IC admitted to breaching the City's Complaints Protocol and took on the part of a secretary to a public servant.

This notion of an Integrity Commissioner acting as a personal secretary for a City Clerk is both alarming and dangerous. Everything about an IC sits on the balance of complete and total independence and impartiality. The actions of Integrity Commissioner John Mascarin and City of St. Catharines City Clerk, Ms. Nistico-Dunk raise questions which must be answered.

This last communication from 'Integrity' Commissioner John Mascarin leaves a mountain of questions. City Clerk Bonnie Nistico-Dunk through her actions has raised issues surrounding
the Complaint Protocol in St. Catharines to a new level. Meanwhile Mayor Walter Sendzik sits on his hands and brags how his city has the best code of conduct and complaint protocol in the province.


All of this on the taxpayer's dollar, and maybe Regional Councillor Gale's comment on May 18th describes the whole process well, that it is a farce. This one has not ended yet, watch for more to come on Mayorgate.