"All this should go" says Toronto bylaw officer

The Violation Notice for the native plant garden in the photo above.

The native plant garden in the photo above received a Violation Notice from a Toronto bylaw officer on October 1, 2023. The following are direct quotes, captured on a security camera, from the conversation between the gardener’s son and the bylaw officer. (The full conversation is roughly 5 minutes and includes a bit more of the same.)

Bylaw Officer: “I want you to cut the grass and weeds.”

Gardener’s son: “It’s not weeds. This is a native plant garden, no weeds anywhere. This is all Ontario native plants.”

Bylaw Officer: “Well, you have to clean it underneath.”

Gardener’s son: “Underneath? What’s wrong with this?”

Bylaw Officer: “It’s weeds.”

Gardener’s son: “No weeds! This is strawberries.”

Bylaw Officer: “This is not the way…”

Gardener’s son: “What do you mean? None of this is weeds.”

Bylaw Officer: “Unless you have proof…documentation that you are allowed to have this, you have to clean it out [in] 10 days.”

Gardener’s son: “All of it?!”

Bylaw Officer: “Yes”

Gardener’s son: “How high?”

Bylaw Officer: “20 centimetres. Everything should be down. When you cut it down to 20 centimetres, take pictures and send them to my email.”

Gardener’s son: “What does the law say? If this is a native plant garden, is it okay?”

Bylaw Officer: “No, unless you have documentation that this is a native plant garden and you are allowed to have it, you have to clear it to 20 centimetres.”

Gardener’s son: “What are the Prohibited Plants? How is it prohibited if it’s all native plants? I’m confused.”

Bylaw Officer: “I don’t know. I’m not an expert.”

Gardener’s son: “What about the trees and shrubs?”

Bylaw Officer: “This tree we can allow, but you have to clean underneath. All this should go.”

(Photo by Lorraine Johnson, October 2, 2023)

(Photo by Lorraine Johnson, October 3, 2023)

[It’s important to note that Toronto’s Turfgrass and Prohibited Plants bylaw lists 10 Prohibited Plants and does not include a provision regarding “documentation” or “approval” of gardens, whether native plant gardens or any other kind of garden.]

[I also want to stress that my intention is not to target or belittle this individual bylaw officer. There is a systemic problem and it needs to be addressed at a policy level. The exchange quoted above is a symptom of a broken system that will only change if we advocate for policy changes around bylaw enforcement.] For more info on advocacy, visit the Ecological Design Lab’s website section on Bylaws for Biodiversity: https://ecologicaldesignlab.ca/project/by-laws-for-biodiversity/

Despite a Court Victory, the Douglas Counter Saga Continues...

Douglas Counter is exactly the sort of gardener and volunteer that the City of Toronto’s PollinateTO program is intended to support and encourage. Not only has he created a native plant habitat garden in his front yard, backyard and boulevard, but he regularly offers community tours, sharing his knowledge and inspiring countless others to grow habitat in their yards, balconies and community projects. Even more, he is a native plant propagator extraordinaire, growing and giving away thousands of native plant seedlings to gardeners (through PollinateTO and Project Swallowtail), making it easy, low cost and do-able for others to get started on their habitat journeys.

Douglas Counter with some of the thousands of native plants he propagates and donates to gardeners. (Photo by Lorraine Johnson)

On August 16, 2023, the very day that Douglas was giving a tour of his native plant garden to City staff from the PollinateTO program and receiving accolades for his work, the bylaw enforcement office received a complaint about the “tall grass and weeds” in Douglas’ garden. (The “tall grasses” are native grasses and there are no Noxious Weeds in his intentionally planted and maintained 20+-year-old native plant garden.)

A few weeks later, Douglas received an Advisory Notice from the City, asserting that his native plant garden was in violation of the grass and weeds bylaw.

The irony of the City’s Advisory Notice goes beyond the fact that Douglas’ garden is promoted as a stellar example of a pollinator garden by one department of the City at the same time as another department is threatening the garden as a violation of the grass and weeds bylaw.

To understand the full extent of the irony, one needs to go back to the early 2000s, when Douglas took the City to court over their threat to mow down his native plant garden. Douglas won the court case. The judge ruled that the grass and weeds bylaw violated his constitutionally protected right to a “natural garden.” The court decision also affirmed the right to create a “natural garden” on the public right of way of the boulevard, subject only to health and safety restrictions.

Douglas Counter’s court case affirmed the right of gardeners to express their environmental beliefs on the public right of way of boulevards, subject only to health and safety restrictions. (Photo by Douglas Counter)

And yet, this summer, under a new and supposedly improved grass and weeds bylaw in Toronto, flawed enforcement continues. If winning a court case won’t stop this, what will?

Natural Garden Mowed Down by City of Burlington, Ontario

On June 20, 2023, the City of Burlington, Ontario, mowed down a natural garden that Karen Barnes had been cultivating for more than a decade—a garden that was free of any provincially designated Noxious Weeds and that posed no threats to public health or safety. The City flagrantly disregarded the two Ontario Court decisions (Sandy Bell case and Douglas Counter case) that have affirmed the constitutionally protected right to a natural garden in yards and boulevards, subject only to restrictions for public health or safety.

In an Order to Comply dated Nov. 2, 2022, the City ordered Karen Barnes to cut down (to 20cm) the “New England Aster, White Panicle Aster, milk weed and golden rod” (specifically named in the Order) that she had been nurturing in her front and side garden—each one a native plant, each a valuable pollinator plant, none of them Noxious Weeds.

Native asters, goldenrods and milkweeds were among the plants growing in Karen Barnes’ garden in the autumn of 2022. The plants did not impede sight lines for drivers or pedestrians, and small fences prevented plants from flopping onto the sidewalk or driveway. (Photo courtesy of Karen Barnes)

After the garden was mowed down by the City of Burlington on June 20, 2023. (Photo by Lorraine Johnson)

Prior to the recent (June 20, 2023) destruction of the garden, Karen Barnes and I met with a bylaw official, on November 27, 2022, at the garden to discuss the plants Karen was cultivating and the maintenance practices she was following. My report on this meeting and the features of this natural garden, prepared for lawyer David Donnelly (who has represented and supported many natural gardeners), can be read here:

At no point during the site visit did the bylaw official point out any prohibited plants or health and/or safety concerns in the garden. His focus was entirely on aesthetics (something already ruled by the Courts as subjective and arbitrary, and therefore unenforceable). He didn’t accept the clear signs of maintenance and deliberate cultivation that were pointed out to him.

It’s important to note that Burlington’s Lot Maintenance Bylaw has long been a problem. In 2018, another Burlington gardener, Doreen Nicoll, was ordered to cut down her milkweed plants. (Read my article about this in the link below.)

The ensuing uproar led the City of Burlington to revise its bylaw. A new bylaw was passed in 2022 that specifically allows “naturalized areas” that are “deliberately planted or cultivated with one of more species of wild flowers, shrubs, annuals, perennials, ornamental grasses, or combinations [of] them, that is monitored and maintained by a person,” a definition that clearly applies to Karen Barnes’ garden. Yet it was under this new bylaw that enforcement action was taken against her natural garden on June 20, 2023.

The exemption in Burlington’s 2022 Lot Maintenance Bylaw allows for naturalized areas.

Karen Barnes’ natural garden clearly falls within the “naturalized area” definition in Burlington’s Lot Maintenance Bylaw. Karen has deliberately planted or cultivated the plants growing and she monitors and maintains them.

Not only is the enforcement action taken against Karen Barnes’ garden outrageous, but the new bylaw is littered with anti-ecological provisions that are, quite simply, indefensible and counter to environmental well-being and human reconciliation with the natural world of which we are a part. Just a few examples:

• Leaves are labelled “waste or refuse” in the bylaw and must be removed from the front yard if the leaves are visible from the street. (Leaves, of course, have great ecological value as protective mulch and habitat for pollinators.)

• All properties must be maintained “free from any nests of bees,” which means that successfully providing nesting habitat for the roughly 70% of native bee species that are ground-nesting and the roughly 30% of native bee species that nest in spent plant stems, logs, etc., is illegal in Burlington!

• All properties must be maintained “free from any insects.” Seriously?!

This is the “new and improved” (?!) Lot Maintenance Bylaw in Burlington, in 2023?!

Karen Barnes’ natural garden after being mowed down by the City of Burlington, June 20, 2023. (Photo by Lorraine Johnson)

Details on how to support Karen Barnes’ constitutionally protected right to a natural garden will be forthcoming in another post, but for now, consider what the Bylaw Official said to Karen as her deliberately cultivated natural garden was being mowed to the ground by City workers: “Have you seen the whole street out front, all the houses? With lawns that are maintained just like everybody else? You have to do that.”

No, City of Burlington, she does not.

Invitation to the book launch for A Garden for the Rusty-Patched Bumblebee