London

Resident drops patio music appeal, vows to keep fighting loud noise

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AnnaMaria Valastro says she'll keep fighting loud patio music using legislation such as the criminal code

Downtown patios like Barney's could soon host live music if council passes a by-law amendment next week. (Chris Ensing/CBC)

For many, the thought of warm weather this week brings excitement about the possibility of enjoying some time on a patio.

For AnnaMaria Valastro, who lives on John Street, right off Richmond Street and close to many of the city's bars and pubs, summer brings sleepless nights and legal fights.

Valastro has for years been fighting the music and noise coming from nearby bars and restaurants. When last summer city council passed a bylaw allowing amplified music on patios, she launched an appeal with the Ontario Municipal Board (OMB).

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Council, in turn, directed city bylaw officers to not enforce a zoning bylaw, in effect letting amplified music fill the downtown air.

AnnaMaria Valastro, a resident of John Street, says amplified music on patios will affect her enjoyment of her home. (Supplied photo )

Today, Valastro said she is dropping the OMB appeal.

"I've lost faith in the process," she said. "If the city won't protect its residents, then I guess the residents are going to have to do it themselves."

The music she hears from patios is "really loud."

"I can't sleep at night. It's intrusive. When you can't sleep, you can't function," said Valastro.

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Coun. Jesse Helmer said he's happy the appeal has been withdrawn.

"It's good news," he said. "There's a bylaw that is in effect and it governs the noise in the city."

The appeal has not yet been formally withdrawn, city officials say.

Other options available, resident says

Valastro said she has thousands of dollars in the bank that she'd planned to use to fund the OMB appeal.

Instead, she's going to use it to use other pieces of legislation to prosecute those that make the noise.

If the city won't protect its residents, then I guess the residents are going to have to do it themselves. - AnnaMaria Valastro

"Anyone can lay charges against someone else. Police can lay a charge, but if they don't, then you can do it yourself," Valastro said.

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Helmer said it's "a stretch" to consider music on a patio a criminal offence.

"There's a way to regulate sound in the city, and that's through the sound and noise bylaw," he said.

Valastro said she might also lay charges using the Canadian Environmental Protection Act, because she considers noise to be a toxic substance.

Can you really lay a criminal charge against someone?

Charging someone without the police is quite difficult. It's called a private prosecution.

Private prosecutions allow private citizens to go before a justice of the peace to "lay an information," essentially an attempt to lay a charge.

A judge or justice of the peace then holds a hearing to determine if a summons or warrant should be issued to compel someone — a bar owner, for example — to appear in court. That hearing takes place in private, without the accused person.

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Valastro said she might hire an acoustic engineer to get readings of noise levels around her house, and will use the readings as evidence.

The judge or justice of the peace considers the allegations and available evidence. If the evidence is deemed worthy of proceeding, the accused person will then have to attend court.

The Crown may proceed with the prosecution or withdraw it if there's no reasonable chance of conviction.

Valastro said she didn't know what criminal code section a noisy patio might fall under.