topleft
topright
Book cover of a Canadian Copyright: A Citizen's Guide

 

Canadian Copyright: A Citizen's Guide

 
Reviews:
CAUT Bulletin  
 

Laura Murray is an Associate Professor in the English Department of Queen's University in Kingston, Ontario, and creator of the website www.faircopyright.ca.

 

Samuel Trosow is an Associate Professor at the University of Western Ontario in London, Ontario. He is jointly appointed in the Faculty of Law and the Faculty of Information and Media Studies.

Recent Decisions


Municipal Pesticide By-Laws Threatened by Flawed Provincial Bill PDF Print E-mail
Thursday, 24 April 2008


The City of London's Pesticide by-law, as well as similar measures in other Ontario cities, may be threatened by a new bill that while well intentioned, is fundamentally flawed as it is drafted.

 

The McGuinty government has finally tabled a long awaited bill which is intended to ban the cosmetic use and sale of pesticides throughout Ontario. Bill 64, the Cosmetic Pesticide Ban Act was introduced on Earth Day and the government is promoting it as a strong measure "that would make Ontario's pesticide rules among the toughest in North America."

 

The introduction of the Bill is a result of a campaign pledge made by the Liberals in the last provincial election when they promised to bring in a bill that would extend the bans now in effect in many cities to the entire province. The actual text of the bill is the result of a consultation conducted by the Ministry of the Environment earlier this year.

 

The bill is long overdue and much needed, and it is good to see the government finally moving on pesticides after their many years of inaction on the issue. Unfortunately, the bill contains two fundamental flaws that make supporting it very difficult, and which perhaps explains why it is being supported by a key industry trade group.

 

The first problem is the overbroad exceptions to the general ban contained in the Bill. The first four exceptions (pertaining to golf courses, agriculture, forestry and the promotion of health and safety) are typical exemptions and were to be expected. But there is also a fifth, open-ended exemption for "other prescribed uses" and the Minister is delegated the authority to prescribe these "other uses." This is gaping loophole in the Bill which could open the door for multiple exceptions which could end up vitiating the purpose of the ban. The Minister could, for example add exemptions such as weed infestations and the like. Even if the current government does not do this, the door is still open for future governments to add broad exemptions without having to amend the Act itself. It is crucial that any exemptions be narrow and very specifically defined and that overall policy decisions be determined by the elected legislature and not delegated to the provincial bureaucracy. Bill 64 as drafted fails to meet these criteria.

 

The second problem is that the Bill expressly invalidates municipal measures, such as London's. It says, "A municipal by-law is inoperative if it addresses the use, sale, offer for sale or transfer of a pesticide that may be used for a cosmetic purpose." This express preemption of local by-laws is not necessary. Municipal by-laws can co-exist with provincial measure so long as there are no direct conflicts, and there is clear law defining what constitutes such a conflict. It's important to have a local by-law on the books even if there is a similar ban because the city is in a much better position to be conducting enforcement and education about the by-law. While the Toronto Star reports that McGuinty said that cities would retain the ability to pass laws exceeding the provincial standard, that's not what the bill says. One must wonder if he has even read it.

 

While the extension of a ban throughout the province is a welcome move which is long overdue, this should not be taken as an opportunity to weaken or invalidate measures already in place in many cities. In 2006 the province amended the Municipal Act to give cities broad regulatory powers in the areas of environmental protection and the protetion of the public health and safety. These new powers should not be clawed back on an individual basis. The law already provides for standards to guard against conflicts in areas where the province and municipalities share jurisdiction, and cities are also in a much better position than the province to properly monitor and enforce these laws at a local level.

 

The province is now conducting another consultation on the Bill, and hopefully these two flawed provisions will be removed before the bill proceeds to second and third readings.

 

For more commentary on the bill, see the Vienna Cafe.

 

 

 


Tags:  Bill 64 pesticides Cosmetic Pesticide Ban Act Municipal Act
 

UGC Report

I am an Associate Professor at the University of Western Ontario jointly appointed to the Faculty of Law and the Faculty of Information and Media Studies (FIMS).

 

Before coming to Western, I was a law librarian at the Boalt Hall Law Library at the University of California at Berkeley and before that I was in private law practice in California. My doctoral work in the Department of Information Studies at UCLA focused on information policy issues.

 

I am currently a Network Investigator and Theme Leader with the GRAND NCE and also serve on the Librarians Committee of the  Canadian Association of University Teachers.



Scholarship @ Western

Western's Open Access Portal

 

Canadian Copyright and the Digital Agenda

  

CanLII

 

RSS Feeds

Some Rights Reserved
This web site is published under a Creative Commons License.
This site is maintained by theviennacafe.ca.
Joomla Template by Joomlashack
Joomla Templates by JoomlaShack Joomla Templates
Joomla Templates by JoomlaShack Joomla Templates