No to Electronic Cards for North Hatley Public Beach
There are many – at least six – reasons to be dissatisfied with the electronic-card access being proposed by the Town of North Hatley as a solution to the problem of the public beach.
1. The solution being proposed is unnecessary: If council members, the mayor, and the town administrator would take the time to read the 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. From paragraph 40 of the decision it seems clear that persons deciding to swim, dive, etc., at the public beach become liable for their own behaviour.
2. There have been three different legal opinions relating to 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. The opinion obtained in 2016 by NHRS was written by a specialist in the field of civil liability (not the case of the other opinions) and refers to both established doctrine and to jurisprudence to make its case that 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. The ability of the Town to surveil its citizens – whether enacted or not – should be a cause for concern for all of us; it 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 – not including inevitable repairs, or keeping access open during the winter months. To these costs must be added those of consulting lawyers to draft the waiver, costs of translation, and most likely additional costs as well (such as potential lawsuits citing the Charter of Human Rights and Freedoms). All of which should be added to the expense – as yet unrevealed – of operating the beach in the stead of NHRS.
5. A waiver, even if signed, does not relieve the municipality of liability in the case of gross error or gross negligence on its part. Imagine the following scenario, which is hardly far-fetched.
In October 2018, on a day when the temperature has reached into the 20s, a person (with an access card) decides to swim at the public beach. S/he is alone – children are in school, and adults are at work; there is no one else at the beach. S/he decides to dive into the water from the cement dock. Unfortunately, s/he slips and hits their head upon entering the water. Walking along Lake Road I witness the scene, and my first impulse is to go to the rescue. But the gate is locked, and I do not have a card. By the time the firefighters arrive, 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, since its actions rendered immediate rescue impossible? Could the councillors who voted to install the electronic-card access system be liable?
6.The proposed solution is extremely cumbersome for a ‘problem’ that doesn’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 our public beach.
One of these reasons, let alone all six, 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 hundred and more who have been attending meetings. Unfortunately, the mayor has told users of the beach this ‘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. Once 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