There are many – at least six – reasons to be dissatisfied with the electronic-card access being proposed by the mayor and council members of North Hatley, and by the town administration, as a solution to the question of access to the public beach. All of these reasons seem important to me, but some will carry more weight with certain readers.
1. The solution being proposed is unnecessary: If council members, the mayor, and the town manager would take the time to read, or to reread, the Québec Appeals Court Case of Joly c. Salaberry-de-Valleyfield, they would understand that simply leaving the gates open is the best policy they could adopt. Paragraph 40 of the decision reads as follows: “[…] if there is fault on the part of the City, because it has neglected to enforce the regulation by which it prohibits swimming and has, moreover, knowingly tolerated the violation of this regulation, without taking the precautions that would have ensured the safety of the persons whom it thus allowed to contravene the by-law, that fault is not the cause of the prejudice suffered by the appellant, whose temerity constitutes a new event which alone is at the origin of all the damage he has suffered.” [My translation and emphasis added.] From this it seems clear that persons deciding to swim, dive, etc. at the public beach are taking their responsibility into their own hands, and out of those of the municipality – if, and only if, the gates to the beach remain unlocked (see #2 and #5 below).
2. There have been three different legal opinions on the question of the gates, and two of the three have concluded not only that the gates should be left open but also that closing them would increase the liability of the municipality. It is worth mentioning that the opinion obtained in 2016 by the North Hatley Recreational Society (NHRS) was written by a specialist in the field of civil liability (not the case of the other opinions) and that it refers to both established doctrine and to jurisprudence to make its case that the gates need not be closed and locked – that, in fact, the gates should be left open.
3. The proposed electronic-card access system constitutes an infringement upon the personal rights of those who are obliged to use it, since the Town will be able to monitor the coming and going of users, and, as the mayor has declared publicly, “(…) if an incident were to occur when the beach was closed, the town would be able to access the data and see who had unlocked the door.” (Sherbrooke Record, 26 July 2018, page 4) Unlocking the door, it would seem from this, could be tantamount to an ‘offence’. But simply the ability and the will of the Town to surveil its citizens should be a cause for concern for all of us (as are the surveillance cameras already installed at the beach), and this would seem to go against, and could be contested under, the fundamental right to privacy expressed in article 5 of the Québec Charter of Human Rights and Freedoms.
4. The cost of the proposed system to the taxpayers of the Town will be in the several thousands of dollars – for installation alone, and without including costs of inevitable repairs, or of keeping access open during the winter months (Also from the Record: “Page said key holders will now be able to access the property year-round.”) To these costs should be added those of consulting lawyers concerning the drafting of the waiver, costs of translation, and most likely additional costs as well (such as potential lawsuits against the municipality: citing the Charter of Human Rights and Freedoms; for inciting bathers to swim off other – municipal, or other – properties, under more dangerous conditions; etc.). All of which should be added to the expense – as yet unrevealed – of operating the beach in the stead of the NHRS. A full accounting of which should be provided by the secretary-treasurer of the Town at the August 06 meeting, before additional expenses are added to the ledger. A full accounting was, after all, what the Town was expecting from the NHRS. Our expectation of the Town is no less.
5. A waiver, even if signed, does not relieve the municipality of liability in the case of gross error or negligence on its part. Imagine the following scenario, which is hardly far-fetched.
During the first week of October 2018, on a day when the temperature has reached into the 20s, a man (with an access card) decides to swim at the public beach. He is alone – children are in school, and adults are at work; there is no one else at the beach. He decides to dive into the water from the cement dock. Unfortunately, the man slips and hits his head upon entering the water. I am walking along Lake Road and witness the scene, and my first impulse is to go to the rescue of the diver. But the gate is locked, and I do not have a card. By the time the firefighters have been alerted and are able to arrive, at the very least twenty minutes have elapsed and it is too late to save a life. A truly horrible scenario, but unfortunately not an impossible one.
Could the municipality be liable in such a case? Could the councillors who voted to install the electronic-card access system be liable? The liability here would probably lie in part, following Joly, with the person who dives off the dock. But also, in part, with the municipality and its councillors, since through their actions – their unnecessary actions – they rendered immediate rescue impossible. There would have been no portion of liability for the municipality and the councillors if the gates had simply been left open – or, at least, this is what two legal opinions have told us, as well as the Court of Appeals of Québec.
6. The solution the mayor has qualified as ‘win-win’ is extremely cumbersome for a ‘problem’ that shouldn’t even exist. By all credible accounts, and despite what the legal opinion obtained by the town claims and hinges upon, the fence at the public beach was not erected to prevent people from swimming. Since preventing people from entering the water was never the intended function of the fence, it can now be removed, without the liability of the Town being increased. Both Québec law and the Town’s insurers state that a fence is not required at a public beach.
Only one of these reasons should have been enough to lead members of council and the administration of the Town to listen to the five hundred people who signed petitions and the at times one hundred and more who have been attending meetings relating to our public beach. All the more reason for six reasons to overwhelmingly convince them. Unfortunately, according to what the mayor has told users of the beach, the Town’s ‘solution’ is ‘take it, or leave it’: either users accept the electronic-card system, or they will be forbidden access to the beach outside hours when swimming is supervised. Yet again the Council, the mayor, and the administration of the Town are attempting to impose their will after zero formal consultation with the population!
Paul St-Pierre
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