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LETTER: 'Custody and maintenance' vs. 'ownership and preservation'

Words and context are critical in looking at the complicated history of Orillia's Champlain Monument, says letter writer

OrilliaMatters welcomes letters to the editor. Please send letters to [email protected]. This is the first of a two-part letter regarding the controversy over the Champlain Monument.

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Whether in 1914 either Vernon March’s winning design featuring side groupings for ‘Christianity’ and ‘Commerce’, or any of the 21 other differing designs to commemorate Champlain’s 300th anniversary was selected by the Town of Orillia, the points made in this letter should have equal merit.

This letter is not intended to further discussion of March’s integrated design of seven bronze figures which together form what is commonly referred to locally as the Champlain Monument.

At this point, I appreciate that my thoughts and concerns may be moot. It is my sense that final decisions permanently affecting Orillia’s most recognizable feature of public art are destined to be made by parties in Peterborough, Ottawa and Quebec City.

It is my belief however, that Orillia Town Council in 1955 did not acquiesce control over one of the proudest of endeavours of it predecessors. Those on Council in 1955 were very cognizant of its origins and the intent of those who initiated a monument to Champlain in 1912.

Although obscured by discussions in the present day, those Orillians who created the largest bronze monument in Canada did so, in part, as an expression of ‘inter-cultural’ outreach of goodwill with French Canadian during the tumultuous WW1 era.

As I tried to convey in comments to council over two years ago, historical context is important in understanding location, language and intent.

In brief, when having hosted walking tours, I am sometimes able to refer to change in language. During summer dry spells, a grid pattern of dried grass can be seen where the thin soil atop the foundation walls of the large building that once stood where the Champlain Monument would be placed in 1925.

An article from 2013 about the Orillia Asylum states, “The Orillia institution first opened in 1876 as the provincial 'Asylum for Idiots.' At that time, the study of mental illness was in its infancy and 'idiot' was the accepted way of defining 'lunatics' who could not be treated or cured.”

The source of that quotation was a publication known as, since 1920, The Beaver, which in more recent years changed its name to the more internet search-friendly Canada’s History.

What would now be phrased as ‘inter-cultural’, Harold Hale wrote in the commemorative booklet for The Champlain Monument at Orillia, of the “inter-racial goodwill between Ontario and Quebec” in specific reference to English and French Canadians respectively.

Words used in one era may later mean something different and thereby, one should look to period context and intent.

It is my hope that Mayor and Council will contextualize language and also draw upon the intent of the agreement for the monument dating back to 1955 in guiding the course for the monument.

There are four purposes of this letter.

Firstly, to contrast available wording from the agreement of 1955 by the Town of Orillia with the existent wording by Parks Canada.

Secondly, to offer that the intent of the ‘donor’ of Cultural property is relevant to the future actions of the recipient.

Thirdly, to encourage Mayor and Council to challenge the perceived authority of the Federal Government.

Finally, to express my personal view that entities placing artifacts into the “custody” of public bodies should seriously take heed of Orillia’s Champlain Monument.

Still existent, the interpretative reader board beside the Champlain Monument worksite firstly states, the Champlain Monument is “one of the finest examples of statuary in Canada…”

It would be troubling to any entity that an artifact of such eminence with curatorial responsibilities entrusted to Parks Canada, that those artifacts could be subject to significant alteration. It is inconceivable that such alteration could exist if it were to be the desire of ‘donor’ community for it to remain intact.

I would suggest that before the reader board disappears, interested parties should see it to assess what is says, or does not say, regarding either the ‘donor’ community, the origins of the monument, or the expression in 1925 of goodwill with French Canada.

Another excerpt from the reader board states “… the Champlain Monument is owned and preserved by the Parks Canada Service”.

Take note that in 1955 the relevant wording regarding the transfer of the Champlain Monument by the Town of Orillia, and thereafter a 10’ border of surrounding land, however, was not “own and preserve” but was “custody and maintenance.”

The concept of ‘ownership’ is covered by basic Property Law whereas ‘preservation’ is more akin to concepts of cultural property. Online searches will find arguments that cultural property should be a separate legal category for significant works that would logically include “one of the finest examples of statuary in Canada”.

Both the Town of Orillia’s expectation of “maintenance” and Parks Canada’s mandate of “preserved” are comparatively synonymous. Both mean retaining something in its original or existing state, however, with Parks Canada’s ‘preserved’ having more of a connotation of ‘protection’.

Regardless of which term is used, the significant alteration of the single Champlain Monument by Parks Canada is unquestionably contrary to their responsibility of care as implicit to either maintenance or preservation.

In 1955, there were two motions: one for the monument and the other for the land it sits upon. To my knowledge, years would pass with the land ownership retained by the Town of Orillia. In 1972, only the land was specified in the transfer from the then City of Orillia to the federal government. That transfer made no reference to the actual monument.

On the City of Orillia website for the Champlain Monument Q&A, the question is posed, “Who owns the Champlain Monument?” The answer given states, “Ownership and maintenance of the monument, together with the area of land 10 feet all around upon which it sits, was transferred to the Department of Northern Affairs and National Resources in 1955.”

In another Q&A on the City of Orillia website, the question is posed, “Who will make the decisions?” The answer given: “As custodians of the Champlain Monument, Parks Canada will have the final say on a path forward for the Monument. …” This may beg the question as to why would a “custodian” have the “final say”?

Parks Canada has taken ‘custody’ to mean ‘ownership’ and thereby with ‘final’ authority over property to act as they please. Are we to believe that this the intent in 1955?

In its various forms, ‘custody’ can be seen online to be defined as “charge and control of a person or item of property”. Neither the ‘custody’ of children under Family Law, nor ‘custody’ of prisoners awaiting sentencing, would denote ownership.

Regarding Property Law, one online legal diction cites from a early 20th reference, "Custody means a keeping, guarding, care, watch, inspection, preservation, or security of a thing, and carries with it the idea of the thing being within the immediate personal care and control of the person to whose custody it is subjected." This explanation continues, “For items of property, possession includes custody, but custody does not necessarily include possession”.

If in 1955, the agreement with the federal government was an outright gift of possession, why would the Town of Orillia have specified “maintenance” of something to which it had no interest?

I certainly welcome other opinions on this matter. To my mind however, in no context do “maintenance”, “preservation” or even “custody” infer the right to irreparable alteration – especially against the expressed will of a large majority of survey respondents.

The applicable wording in the recent Champlain Monument questionnaire as publicly available through online surveying was, “Reinstall as is with addition of educational and interpretive pieces adjacent to the monument”. A clear majority voted affirmatively.

Readers may recall an OrilliaMatters reader response poll had a higher proportion of respondents, at 87%, who simply wanted it “returned”. Both polls had over 1,000 respondents and were freely open to all parties.

Beyond a legal interpretation of property ownership by Ottawa, the spirit of “custody and maintenance” could guide the preservation of the monument using the more recent notion of cultural property.

Given the close connection by some councillors in 1955 to the founders of the monument, it would be unlikely those councillors would either permit change to the Champlain monument, or imagine their distant successors to acquiesce final say over its potential dismemberment?

Bruce McRae
Orillia
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Watch for Part 2 Sunday morning