If you're in the town of Markham this Canada Day weekend, don't
expect to see many displays of patriotism in front of local residences. For
tens of thousands of Markham homeowners, it's illegal to fly the Canadian
flag on their properties.
Last week, I was closing a new home purchase in Markham for a young couple.
I told them that the land their home was built on was subject to the terms
of 1997 restrictions imposed by the subdivider in the town of
Markham. The restrictions that apply to all the
homes in this and many other Markham subdivisions.
One clause reads:
"No television antenna, radio antenna, satellite dish of a diameter greater
than 24 inches, mast or flagpole, windmill..., aluminum awning
or shade, (or) outside clothesline... shall be permitted on any lot except
inside a dwelling unit..." (The emphasis is mine.)
For years, this clause has appeared in most Markham subdivisions. It sets out what are known as restrictive covenants
which can be enforced against the owner of any affected home. From the
straightforward wording of the restriction, it's clear that those Markham
homeowners are prohibited from having a mast or flagpole of any description
on their lots. This, of course, makes it illegal to fly a Canadian flag on
Canada Day or at any other time, since it is problematic to fly a flag
without a mast or flagpole to support it.
Personally, I find this restrictive covenant extremely offensive, and I
doubt it would survive a constitutional challenge under the freedom of
expression clause of the Charter of Rights and Freedoms. Nevertheless, the
clause is there in black and white on the title to tens of thousands of
Last week I exchanged e-mails with John Mascarin who was, for many years,
the town solicitor for Markham. (He recently returned to private practice
with Aird Berlis in Toronto.)
Mascarin acknowledged that the restrictions are enforceable against all
owners of affected lands.
The real issue, he said, is whether one resident in the same subdivision
could enforce it against another. Since the restrictions bind all the properties in a
subdivision, there is no reason why one homeowner could not ask a court to
enforce it against another.
Ray Saelens knows what it is like to have a neighbour complain about a flag
on his property. The resident of Chesterfield Township in Michigan spent
$4,000 (U.S) to put a flagpole behind his house after the terrorist attacks
of Sept. 11, 2001. The flagpole is 50 feet tall, and supported a massive 18
by 12 foot American flag.
The problem was that the noise of the flag's flapping kept his neighbours
awake at night. When neighbour Mark Grucz complained to local authorities
earlier this year, a police officer cited Saelens for violating the local
noise ordinance. Facing a ticket, which carries a $500 fine and 90 days in
jail, Saelens became a celebrity overnight.
For Saelens, the sight and sound of an American flag in the wind has special
"To me," he told a newspaper reporter, "the noise of the flag is the voices
of everyone who's died for this country. Never in a million years did I
think I would bother someone by flying a flag."
His story was featured in newspapers and on Web sites across the United
States, and Saelens appeared on a number of radio interviews, including one
with the British Broadcasting Corp. in London. His flag was the subject of
jokes on a number of TV talk shows.
Saelens was flooded with calls and letters of support, and returned many
cheques from people offering to help with his legal bills.
Ultimately, township attorney Bob Seibert brokered a settlement. Rather than
take the flag down at night, Saelens switched to a smaller, 15 by 10 foot
nylon flag, and his neighbours agreed to the compromise.
If you're visiting the Anchor Bay area of Lake St. Clair north of Detroit,
keep an eye out for Saelens' Stars and Stripes.
But if you're in Markham, don't expect to see a lot of the red and white
Before the municipal elections this fall, Markham politicians should admit
that the restrictions that prohibit masts or flagpoles on private property
are offensive to Canadians.
Markham council or the provincial legislature should void property
restrictions which prohibit the flying of Canadian flags.
Something's wrong with this country if Canadians can smoke marijuana on
their front lawns with their same-sex spouses, but can't fly a Canadian
What do you think? Should Markham developers maintain uniformity in its subdivisions by
prohibiting masts and flagpoles? Is this restriction unconstitutional?
Should Canadians be prohibited from flying the flag on their properties?
If you live in Markham, will you be flying the Maple Leaf on Canada Day?
Fax the Star at (416) 865-3635, or e-mail firstname.lastname@example.org.
Happy Canada Day!