Tuesday, September 01, 2015

Freedom of Expression Challenge Brewing??

Mayor's Interpretation of Community Charter
Raises several issues to be decided in court

During the raucous city council meeting on Aug. 31 Mayor McKay invoked Sec. 133 as the basis for having someone expelled from the meeting. Councillor Fuller appealed the ruling from the Mayor and the Mayor refused to entertain the appeal.

This is opening one ugly, messy can of worms, but this is Nanaimo and we have come to expect such from our City Hall governance .......... can you say Leadercast??

The Community Charter States:

Authority of presiding member

132  (1) The mayor or the member presiding at a council meeting must preserve order and decide points of order that may arise, subject to an appeal under this section.
(2) On an appeal by a council member from a decision of the presiding member under subsection (1), the question as to whether the chair is to be sustained must be immediately put by the presiding member and decided without debate.
(3) As exceptions to section 123 [general voting rules],
(a) the mayor or other presiding member may not vote on a motion under subsection (2),
(b) the motion passes in the affirmative if the votes are equal, and
(c) the mayor or other presiding member must be governed by the result.
(4) If the mayor or presiding member refuses to put the question under subsection (2),
(a) the council must immediately appoint another member to preside temporarily,
(b) that other member must proceed in accordance with subsection (2), and
(c) a motion passed under this subsection is as binding as if passed under subsection (2).

Expulsion from meetings
133  (1) If the person presiding at a council meeting considers that another person at the meeting is acting improperly, the person presiding may order that the person is expelled from the meeting.
(2) If a person who is expelled does not leave the meeting, a peace officer may enforce the order under subsection (1) as if it were a court order.

Reason for an appeal of a ruling of the Chair

 A member's right to appeal a ruling from the chair as explained by George Demeter is to protect the assembly against the arbitrary control of the meeting by its presiding officer.

City of Nanaimo's (Mayor's) Official Take on Sec. 133

The Mayor and apparently the city of Nanaimo is taking the stand that the Mayor can arbitrarily decide to expel anyone from a meeting that he alone deems acting improperly. The way he is interpreting the Community Charter Sec. 133 is that, the decision to expel is his and his alone, even if city council does not agree with him. That seems to be one interpretation of Sec. 133, but like all legal interpretation it is subject to challenge, and I am willing to wager, it will be challenged before this latest drama is concluded.

Challenges Under Section 132

Any time the presiding member (the Chair) decides on a point of order to preserve order, that ruling is subject to an appeal as per 132 (2). If the presiding member refuses to put the question, council MUST immediately appoint another member to preside temporarily.

Hypothetical scenario which could happen if City Council does not agree on a point of order from the presiding member:

the presiding member (Mayor) says someone must put down a sign in the gallery. That point of order can be appealed by a member of council, and the presiding member MUST allow the appeal, if not, council MUST temporarily replace the presiding member. The product of that vote could say council does not support the point of order to put down the sign. This would make that ruling invalid.

The Mayor could still unilaterally declare someone is acting improperly and order them expelled invoking Sec. 133, but he would now be acting against the expressed wishes of Council which would seem to contravene his duties under the Community Charter and some will argue goes against the spirit and intent of Sec.132.

Since the city of Nanaimo does not have a Bylaw governing the display of signs in the gallery, and the Mayor is acting in an ad hoc fashion and if he continues to invoke Sec. 133 claiming no appeal can be made .............. well he would be acting like a tyrant, in some people's view.

Nanaimo's History Of Ignoring Charter of Rights and Freedoms

It was a short time ago that the City of Nanaimo under Mayor Ruttan's watch decided to ignore the Charter of Rights and Freedoms in what is now known at the Leadergate affair. During that whole distasteful drama, city hall attempted to stonewall Nanaimo citizens and it was only when subjected to the glare of the national media, that city hall came to it's senses and reversed their opinion and apologized.

It seems the current Mayor is setting Nanaimo once again on a course that will put us once more into the glare of the 'big time' media.


1 comment:

  1. Section 133 cannot be interpreted as a standalone, it must be interpreted as part of the act in its entirety.
    As with most acts, the powers are expressed, the appeal process is then expressed, and then the enforcement portion is expressed. They operate in unision not as standalone issues.
    On Aug 17, the same type of issue arose and the mayor quoted section 132 & 133. Unfortunately he only read a portion of sec 132 and failed to read the appeal portion. I believe it was intentional, whether because it suited him or whether to mislead has yet to be decided.
    The mayor claims he has a legal opinion but has failed to disclose the contents or to specifically outlined the question on which the opinion was responding to.
    The other issue in any court is what would a reasonable person believe.? When it comes to this mayor, that in itself maybe the issue?


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