i gotta get this out, and get my cd-r replaced.
===
Statement of Disagreement In regards to GO# WI 2018-56622
To begin with, let me state clearly that I would prefer to have this record completely destroyed. I am aware that the complainant in this matter had made repeated calls to the police, and had been told repeatedly that I was not in breach of any law. She had in fact threatened me with arrest on multiple occasions, all of them completely absurd. Eventually, her persistence in calling me in produced this (absurd) report, but the world does not operate on the fox news axiom that a lie, when repeated, becomes true. She was wrong the first thirty times that she called in, and she was wrong on this day, as well. Ironically, it is this persistence in trying to get me charged that better qualifies as harassment than anything described in the report - and it is a matter of your own records to verify that repeated calls on the topic were made, after she was told that nothing would be done.
However, I understand that my legal rights regarding amending the report relate primarily to my own privacy, and that it is only my right to reply that i have any real ability to exercise. That said, there is a point where the facts are overwhelming enough to justify the destruction of a report of this nature on moral grounds - that is, there is a point where the force must admit it is wrong and do the right thing in destroying a report that should have never been written. I have no legal argument in forcing the police to destroy the file, but I hope that drawing attention to how wrong it is produces the obvious, correct and logical conclusion: this report should not have been written, and because it shouldn’t have been written, it should be destroyed.
There are some factual errors in the report. The officers were not dispatched to “843 marentte av”, which appears to be a typo on top of an error, but rather to 843 tuscarora - the structure directly below the one i lived in at the time, 851 tuscarora. The nature of the report makes it clear that the call was coming from my neighbour, and the presumed error of “843 Marentette” is too far away for the person to be my neighbour. Further, I distinctly recall having a conversation with an officer that i later learned is PC Montino-Yong - a name that suspiciously does not appear on the report I received, some time after filing an OPIRD complaint against him (E-201809161252432765). The second officer on the call was a white male, whose name I am not aware of.
I dispute that any photographs of this woman were taken while she was planting flowers, nor does this woman have a gardening habit, nor is there a flowerbed in the yard she was sitting in, which is not hers but a common area in an apartment complex - something that could be verified rather easily, if the address on file were correct. Is that why the address was corrupted? While I do have some footage of her watering what appear to be illegal marijuana plants in potted containers near the beginning of July, 2018, any statements that claim that she was being filmed while “planting flowers” are absolutely false. In fact, this woman was not gardening in her backyard at all, but rather sitting in the common area of an apartment complex and drinking large amounts of alcohol, while chain smoking both cigarettes and marijuana. And, I have the photographic and video evidence required to demonstrate this, if required.
As any photographs or videos that were taken were in the common area of an apartment complex, this individual has no right to privacy in the matter. There is absolutely nothing illegal whatsoever about filming a person in a public place, whether they consent to it or not.
This is a sample of the footage that was taken, and it doesn’t seem much like “gardening” to me - it’s rather some people sitting in the common area of an apartment complex, while drinking alcohol and chain smoking.
(removed.jpg)
And, what is the reason I was filming her?
Well, as I retain these records, we could consult them - and we may still. My stay at 851 Tuscarora has since ended, but it was extremely unpleasant due to the presence of a habitual marijuana addict directly below me. Due to the fact that the flooring was substandard, the second hand smoke in the apartment made the apartment uninhabitable. I even tested positive for thc from it, which is quite difficult to do from second-hand exposure. I ended up suing my landlord over this, and won an escape from the lease. The court reference is SWT-16361-18.
As I was stuck living in a perpetual hotbox, I had no option but to leave my windows open more or less 24/7 to attempt to get some air flowing into the unit. Unfortunately, a chain-smoking, alcoholic neighbour then moved in next door, around the beginning of may, and decided to enforce her habit directly into my air supply.
I asked this woman to move repeatedly, and all she did was swear at me. I have this documented quite thoroughly. So, what does a person do in this situation? If I were to close the window, I’d be dealing with the effects of unwanted inebriation from one neighbour’s drug habit, and if I were to keep the windows open I’d have to deal with the consequences of a chain smoking alcoholic setting up directly in the air supply. The only option I had was to get this woman out of my air supply.
One will note that every human rights document ever written has a right to fresh air, while the supreme court has stated on numerous occasions that a right to smoke does not exist. I should have had a legal mechanism to get this woman out of my air supply beyond simply getting up and moving. It is my own rights that were being infringed upon.
As a non-smoker in windsor, I had some previous experience with pushing back against smokers. I knew that bylaw couldn’t do anything because it’s not a public building. I knew that the anti-smoking unit upholds an unfortunately restrictive concept of ‘common area’ that doesn’t include a common backyard. In situations like this, judicial remedies must be sought, and a situation must consequently be created in order to put the issue before a judge. If a specific law would force a person to endure the catastrophic health effects of second-hand smoke then that law ought to be struck down as unconstitutional. Further, a great deal of rather nasty behaviour could no doubt be justified under grounds of free speech, if it is intended to protect a person’s health from the consequences of smoke inhalation. And, I decided that this was a fight worth having, for the benefit of the greater society - that there ought to be something I could do about this.
A project like this needs to begin simply and then escalate. To begin with, what I wanted was for an officer to come to the scene and ask the woman to smoke somewhere else, and hoped that would be enough. Yet, as the existing statute is insufficient to protect me from the effects of second-hand smoke, I had no grounds to call the officer. Rather, I had to push back in the hopes that she would call the officers, and we could then have some kind of mediation service that would end in her agreeing to not smoke in my window, as any sane person can see is quite reasonable.
So, I decided that if this woman was going to sit beside my window and blow smoke into it then she would have to listen to very loud noises while she did it, and hoped that this would act as a disincentive towards smoking in this area. If she got up and moved, the problem would be solved. And, surely, any sane person can understand that loud music is less damaging, disruptive, harassing and harmful than second-hand smoke! This is not even a comparison - it was weak, as far as retaliation is concerned. Yet, I was ultimately acting not out of retaliation but with an intent to get an officer on the scene to mediate. If that did not work, the next step would be to continue to agitate until the situation could be put before a judge, with the hope that a legal battle would end in a judicial ruling that would stand up for my right to fresh air and force this woman to smoke somewhere else - via a restraining order or something else.
As intended, several noise complaints were then filed over june and july, and the police appeared at my door several times, as can be checked in the record. I was transparent with the officers that appeared - this woman refused to smoke somewhere else, and if she insisted on blowing smoke in my window then i would need to create a situation out of it, because there is no existing statute to apply to stand up for my rights. And, she was asked to smoke somewhere else by the first several officers that appeared at the door, who seemed to understand that there was a delicate rights balance at play, she was infringing in my space and there was a relatively simple solution at hand - she could move a few feet away from the window. It was not until this Montino-Yong character appeared on the scene that this completely extra-legal idea that she has some kind of right to smoke in my window entered into the discourse.
Despite repeated requests by several officers, she simply refused to smoke somewhere else - and kept calling me in on noise complaints. How long can that go on for before somebody can be charged with harassment? Is continually positioning yourself beside somebody’s window and blowing smoke into it despite being asked to move repeatedly and chased off with harsh noise not the most textbook example of harassment possible? Is the second-hand smoke not a reason for me to fear for my safety? The issue seemed as though it had to go before a judge...
So, I initially started taking footage of this woman smoking - in a public space, beside my window - for the purposes of producing evidence for a court battle that would hopefully force her out of the space. I intended to document when, where and how much smoke she was producing, and the effect it was having on me. This is completely legal in every way; if she did not want to be filmed while smoking in public near my window, she had the choice to smoke somewhere else, or not at all.
After a while, I gave up on the noise as a tactic. While it initially worked in chasing her off, she eventually refused to move. It was apparently very important to her to continue to smoke in my window, even with the noise, and even after I made it abundantly clear that this was making me sick. Further, the noise was bothering some of the other tenants. On top of that, the officers seemed unwilling to send the issue to a judge because they apparently couldn’t generate any evidence. So, I moved to plan B, which was to try and have her charged with creating a common nuisance.
Common nuisance
• 180 (1) Every one who commits a common nuisance and thereby
o (a) endangers the lives, safety or health of the public, or
o (b) causes physical injury to any person,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.
• Definition
(2) For the purposes of this section, every one commits a common nuisance who does an unlawful act or fails to discharge a legal duty and thereby
o (a) endangers the lives, safety, health, property or comfort of the public; or
o (b) obstructs the public in the exercise or enjoyment of any right that is common to all the subjects of Her Majesty in Canada.
• R.S., c. C-34, s. 176.
While charging smokers with causing a nuisance would be admittedly novel, it is difficult at this stage in history to understand how anybody could deny that blowing smoke into somebody’s window is endangering their health, and I was getting to the end of my patience. She had at this point been asked to move repeatedly by several officers. She actually was causing a nuisance. And, I frankly think it would have been a positive precedent, should it have succeeded.
So, I decided that I would continue to film her smoking near my window and refusing to move on request in order to build a case against her for causing a common nuisance.
It was under these circumstances that the officers arrived at my door on July 8th. I feel it is worthwhile to point out that I actually have footage on this day of myself informing the neighbour that she had no right to privacy in a common area, and that she called the police anyways. When the police arrived at my door, I was indeed quite hostile - as I was the one being harassed - and demanded that she be immediately charged with harassment, for repeatedly smoking beside my window, despite repeated requests by myself and by other officers to move. The officers refused to press charges. When questioned as to why I was filming, I informed the officer that I was seeking to gather evidence for a nuisance charge to bring before a justice of the peace, as they would not file charges themselves. Officer Montino-Yong responded to this request by telling me that there was no such thing as criminal nuisance. I informed him that he was wrong, and it was s. 180 of the criminal code. He responded by telling me that he’s a police officer and he knows better; I told him I have a legal background, and I know better than to trust an officer’s understanding of the law. The second officer agreed with Montino-Yong, but it appeared to be disingenuous, in order to avoid the perception of a misinformed officer - he wanted to uphold the authority of the officer, even though he was wrong. Everything about this situation was disturbing and pathetic to me, from the officer’s misunderstanding of the law to the premise of being charged for harassing a nuisance smoker that was making me sick, so I told the officers point blank: it is not illegal to film in a public space, and I will be continuing to collect evidence to bring before the justice, if you won’t press charges, yourselves. I then firmly closed the door and told them to get lost, which was my right, as I was not under arrest, and clearly explained that my actions were not against the law.
I was arrested several weeks later on an unrelated charge of harassment in no less of a ridiculous scenario, and believe that these issues together actually constitute a pattern of police harassment. As of Nov, 2018, there is an ongoing OPIRD report into the behaviour of officer Montino-Yong.
As I had been threatened with arrest for harassment, I then made several calls to the windsor police, to attempt to press charges for a common nuisance. The officer on the phone confirmed that a common nuisance is in the code, thankfully, but I was told that it would be difficult to press charges without establishing intent. So, I resolved to continue documenting the smoking, to generate a pattern that demonstrated intent.
I then posted the following three posts to my blog:
===
i just had some cops show up and try to tell me there's no such thing as nuisance under the law.
the reality is that cops generally have no idea what the law says.
at 12:40
i don't have time to prosecute a nuisance charge. but, i'm collecting evidence in case i have to.
i will defend myself on free speech grounds, if attacked.
and, i will retaliate with a criminal nuisance charge, arguing that somebody that is wilfully blowing smoke into my air supply - despite being asked not to repeatedly - is negligently endangering m health.
i will not act first. i don't have time. i'm leaving as soon as possible. but, i will retaliate accordingly.
at 13:23
i am absolutely willing to prosecute a smoker under nuisance laws.
are you going to argue that she's not endangering my health?
what year is it?
http://laws-lois.justice.gc.ca/eng/acts/C-46/section-180.html
at 13:26
===
That said, I still did not want to send this woman to jail, I simply wanted her to smoke somewhere else. So, I attempted to contact 311 as a last resort before trying to have her charged.
---------- Forwarded message ----------
From: jessica murray <death.to.koalas@gmail.com>
Date: Sun, 8 Jul 2018 17:20:49 -0400
Subject: nuisance complaint
To: 311@citywindsor.ca
i'm having a really hard time with a neighbour that's just intent on
creating air pollution and simply doesn't care - even thinks she has
some kind of right to pollution, and is just flatly hostile to anybody
suggesting otherwise. so, if i can gain some kind of victory in
getting her to smoke away from the window, she turns the barbeque on,
just to piss me off. as i believe that her behaviour is malicious, i'm
ultimately looking to have her criminally charged with nuisance, but i
need some help in getting there.
the basic crux of the problem is that she's an alcoholic, and when
somebody is constantly drunk, they just don't care. so, when she moved
in, she started chain smoking outside my window; when i asked her to
smoke somewhere else, she just drunkenly swore at me, tolf me she'll
smoke where she wants and accused me of "using big words". i've had
officers (which she called on noise complaints related to creating
disincentives to smoke a foot from my window) ask her to move, and she
still doesn't listen. there's basically no way to reason with her -
she's going to smoke where she wants, when she wants and no matter
what anybody says to her. so, the only solution is to charge her with
nuisance and drag her away.
today, after i got a second officer to get her to move after she
called in on me a second time, she retaliated by using an open
charcoal bbq in her yard. this is creating large plumes of very dirty
smoke that is a clear health hazard to anybody around. now, i'll note
that she has a clean-burning bbq, which she has used up until this
point. so, it's clear that she's using this dirty charcoal bbq with
the clear purpose of pissing me off - behaviour clearly indicative of
somebody intent on creating a nuisance. i called the fire department,
and they said the bbq is legal (i'm not so sure - it seems like an
open flame to me, and this is more of an issue of non-enforcement.).
but, my issue is less about the fire code and more about the smoke.
is there something i can do about this?
no amount of debate or discussion is going to have any effect. i need
something harsh & swift.
my next step is going to the justice of the peace and getting her
criminally charged.
j
====
i received the following reply:
---------- Forwarded message ----------
From: 311 <311@citywindsor.ca>
Date: Mon, 9 Jul 2018 14:54:27 +0000
Subject: RE: nuisance complaint
To: jessica murray <death.to.koalas@gmail.com>
Good morning,
The City does not have any involvement with what is considered a "nuisance" neighbour. You have addressed all the issues with the appropriate contacts (Police for criminal activity, Fire for open air burning) but if nothing is found to be illegal in nature, than it may be something you have to pursue on your own through a lawyer or small claims court for any damages.
Thank you for contacting 311.
Regards,
Rose | 311 Call Centre Team
Call Centre
400 City Hall Square | Suite 410 | Windsor, ON | N9A 7K6
(519)-255-CITY (2489) | 1-877-RING-311 (746-4311)
www.citywindsor.ca
IMPORTANT NOTICE:
This message is intended only for the use of the individual or entity to which it is addressed. The message may contain information that is privileged, confidential, and exempt from disclosure under applicable law. If the reader of this message is not the intended recipient or the employee or agent responsible for delivering the message to the intended recipient, you are notified that any dissemination, distribution, or copying of this communication is strictly prohibited. If you have received this communication in error, please notify the sender immediately by email at 311@citywindsor.ca .
Thank you.
===
and, i replied with this
---------- Forwarded message ----------
From: jessica murray <death.to.koalas@gmail.com>
Date: Mon, 9 Jul 2018 11:10:08 -0400
Subject: Re: nuisance complaint
To: 311 <311@citywindsor.ca>
nuisance itself is a crime under the criminal code, s 180 (1).
and, there is no use in suing a belligerent drunk on welfare for chain
smoking a foot from your window, and refusing to move. she has nothing to
take away from her.
i feel that this is an issue that the city *should* deal with: this is
fundamentally an air quality complaint, which should be dealt with through
bylaws. the right thing to do here is to fine this woman and keep doing it
until she stops behaving in such an anti-social fashion.
but, if i have to go in front of the justice of the peace and file charges
myself due to inaction by the city and by the police, then so be it.
the courts, at least, understand the severity of smoke issues. it's just a
shame that it takes somebody with a doctorate to get a basic handle on
simple science.
so, let it be stated here that my desperation is a consequence of your
inaction - and if this woman ends up going to jail for smoking on her
porch, or having to spend the next months or years fighting to stay out of
jail on nuisance charges related to smoking on her porch, it is because the
city would not step in and provide for a more appropriate remedy and more
reasonable means of conflict resolution.
let that sit on your conscience.
j
===
After this occurrence, I made a very clear attempt to communicate to this woman that if she did not stop blowing smoke into my window then I would try very hard to ensure she was charged with a common nuisance, once I moved away. She eventually relented and decided to smoke on the other side of the building. I was happy with this compromise, if baffled that it took so much effort to produce it, and decided against pursuing charges.
I will leave the wisdom of that decision in the hands of law enforcement, however skeptical i am of their abilities.