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Paradise Lost, the Tyranny of Conformity
Carol Wallace's account of the illegal destruction of my naturalized garden by the City of Winnipeg in 1998.

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Naturalized Gardens, Legal but not Desirable

by Traute Klein, biogardener

The Canadian Charter of Rights and Freedoms guarantees Freedom of Expression. A courageous Toronto woman forced a 1996 landmark decision which applies this freedom to Ontario front yards.

The City of Toronto is proud of its extensive holdings of wild space within city limits. It therefore seems reasonable to presume that citizens would be encouraged to create and maintain naturalized gardens on their own properties. Unfortunately, that is not the case. About 20 years ago, I remember reading the story and seeing the photos of the beautiful wildflower meadow which the city ruthlessly mowed down, because it did not meet the requirements of its bylaw which restricted the height of front yard vegetation.

The Case Bell versus Toronto

Here is a more recent case, known as Bell vs. Toronto:

On September 11, 1996, Justice Fairgrieve rendered a precedent-setting judgment which legalizes naturalized gardens in Ontario.

Sandra Bell is a Toronto wildlife photographer. She had been convicted of having excessive growth in her front yard. Her naturalized garden exceeded the allowable 20 cm (8") height of front yard vegetation. She turned to the Canadian Environmental Defence Fund for support in challenging that conviction. Councel Murray Klippenstein argued the case in her defence. He demonstrated that the Toronto bylaw violates the Canadian Charter of Rights and Freedoms. Two of the rights guaranteed by the Charter are Freedom of Expression and Freedom of Conscience. According to Judge Fairgrieve, the first argument of Freedom of Expression was sufficient to overturn the conviction, and Klippenstein did not need to present the argument for Freedom of Conscience.

The story is mentioned among other cases which the CEDF had promoted through their Legal and Expert Assistance Program. I have read the Fairgrieve judgement. From it, I paraphrase:

Sandy created this "wild garden" to reflect her environmental beliefs.

In her summary, Judge Fairgrieve suggests that the City should be able to devise a bylaw which distinguishes between a property which is neglected and one which is unconventional.

My Case in Winnipeg

Like me, Sandy had received a previous order to clean up "accumulated debris." Like me, she had complied with that order. Unlike me, she was then given an order to change her method of gardening. By taking this proper legal route, the City of Toronto gave Sandy a chance to defend her beliefs and practices.

Actually, I was also given an order to change my method of gardening. But that was in 1990! I appealed that order in 1991 and won by a unanimous decision of a committee of City of Winnipeg Councillors. Since then, I was given various orders for several more or less unrelated issues. In the months prior to the demolition, a City building inspector praised my environmentally friendly methods of conservation and gardening. My City Councillor assured me repeatedly that the two neighbors who objected to my methods would simply have to learn to accept them. He promised that he would personally mediate the matter.

Imagine my horror when on June 1, 1998, I awoke to a backyard totally stripped of plants and topsoil. All that remained after the demolition was pure prairie gumbo. The carefully constructed grading was destroyed. Even the extension to the downspout from the eaves trough was removed, allowing rain water free access to the basement. Also gone were all tools, ladders, compost bins, rainwater storage containers, irrigation system, and all gardening tools.

The soil above the gas line, which by law has to be at least 3 feet, was a mere 8 inches. Had the backhoe attempted to remove just one more shovel full of soil, they might have blown us, the house, and themselves to kingdom come. That is truly scary.

And this was only the backyard. Two days after it was wiped out, an order was prepared demanding that I subject the front and the two sides to the same fate. I appealed that order and won again. The inspector did not even bother to show up at the hearing to defend his order. He did, however, plan on circumventing the decision. He assured me that he would personally find other bylaws with which to harass me, and he has been true to his word.

The moral of the story?

If you want to grow a naturalized garden, don't come to friendly Manitoba (according to the slogan on our license plates). Move to unfriendly but environmentally conscious Ontario instead.

Follow-up Situation

The change in the Toronto bylaw did not have the desired impact on the practices of city inspectors. In 1999, at least one other naturalized garden was demolished.

The 1998 destruction of my own garden is reminiscent of the Toronto case, except that the Toronto scenario was more civilized. The Canadian Environmental Defence Fund in a special 1998 board meeting agreed to support my case as they had supported the Bell case, and now, three years later, I am still waiting for that promise to materialize.

In June 2000, the City of Winnipeg was planning another demolition of my garden, which would have removed the improvements of the previous 2 years, but fortunately, the inspector was on vacation and his replacement refused to confirm the demolition order. The media, however, were not informed of the latest decision. On the specified day, they were standing on the street with their cameras ready for the action, and they are the ones who informed me of what had transpired.

© Traute Klein, biogardener