Why Ontario must reform municipal codes of conduct

OPINION: The current system is costly, undemocratic — and punishes those who challenge the status quo. The province needs to take action
From left to right: Douglas W. Judson is a Fort Frances councillor, Cameron Kroetsch serves on a Hamilton advisory committee, and Justin Towndale is a Cornwall councillor. (Facebook)

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It is said of healthy politics and debate that, while we may disagree with what others have to say, we will defend their right to say it. Not so in Ontario municipalities, where council codes of conduct have been weaponized to chill progressive speech, retaliate against criticism, and judicialize democratic processes. 

The integrity commissioners who administer these codes of conduct often have no relevant legal background. Paid by the hour, many seem happy to abet farcical attacks on members of councils, boards, and committees, opening costly inquiries into trivial complaints about petty grievances and personal offence.

Municipal councils, which adjudicate the commissioners’ recommendations, have proven an equally poor forum for a fair and impartial hearing of one of their members. They seem to have a limited understanding of their role as a quasi-judicial body tasked with considering relevant laws and providing measures of procedural fairness. Municipalities without professional advisers are routinely exposed to legal risk by running shoddy hearings and misunderstanding that the commissioner is just an investigator — not a decision-maker.

TVO.org Explainer: What is an Ontario integrity commissioner?

The result has been a costly city-by-city kangaroo court imposed by the provincial legislature but funded on the backs of municipal taxpayers. One small city has seen code-of-conduct complaints become a form of political recreation that has resulted in more than half a million dollars in costs over two years. Others face similar uncontrolled spending; when commissioners are challenged in court, for example, municipalities must grant a blank cheque for subsequent appeals.

Improving accountability in local government is an important undertaking, but this model has failed to achieve that end. Codes of conduct have arguably done more to undermine the integrity of local democracy than to pronounce on the ethical lapses of political officeholders. Their interference with freedom of expression is especially alarming. 

While the Supreme Court of Canada has been clear that political expression is Charter-protected and cannot be tossed aside lightly, this appears to be lost on some integrity commissioners. Several recent proceedings — three of which involve the authors of this op-ed — suggest as much:

  • In Barrie, Councillor Keenan Aylwin was ordered to apologize for having commented that two local MPs were “playing footsies with white supremacists” after they’d failed to speak on then-Conservative Party leader Andrew Scheer’s appearance at a rally that also featured Faith Goldy. A compelled apology is not a sanction allowed under the Municipal Act.
  • In Hamilton, Cameron Kroetsch, the city’s LGBTQ advisory-committee chair, was reprimanded for criticizing the city’s selection process for appointments to the Hamilton police-services board and the committee's decisions about the 2019 Pride flag-raising. The integrity commissioner did not consider the respondent’s evidence, and the city has now spent hundreds of thousands of dollars defending the commissioner in court.
  • In Fort Frances, a commissioner found that Councillor Douglas Judson had contravened the code of conduct by suggesting that an anonymous letter to the editor that expressed opposition to the renaming of the town’s Colonization Road had been written by a “white senior citizen.” (The newspaper indicated the letter had been submitted by a resident from an area seniors’ home.) The councillor was not allowed to file a written response to the allegations or to make remarks at his hearing until after a decision had been reached.
  • In Cornwall, Councillor Justin Towndale was sanctioned for commenting on the fact that he’d discovered the fire chief was leaving for a new job not from the city but through a press release from the chief’s new employer. It is the job of council members to hold city management to account.

None of these should withstand legal or Charter scrutiny. Yet in a judicial review, municipal taxpayers will foot the bill for the poor judgment of integrity commissioners. Commissioners are indemnified by cities, and the complainants responsible for this circus can remain anonymous. They don’t even have to live in the city where they’ve lodged a complaint.

Agenda segment, November 20, 2020: Why do cities need integrity commissioners?

Common-sense legislative amendments are needed, including a standardized code of conduct, a centralized commissioner-adjudicator, codified expectations of procedural fairness, and clarity that political expression is not sanctionable unless it rises to the level of hate speech under the Criminal Code or harassment under the Human Rights Code. 

So far, Municipal Affairs Minister Steve Clark has been silent on these concerns. His ministry’s consultation has instead fixated on finding new ways to punish municipal politicians. Conservatives routinely tout their own “free speech” bona fides, yet the Doug Ford government appears to be shirking its duty to protect fundamental Charter rights while ignoring feedback from municipal stakeholders.

It is incumbent on the province to address these legal and financial liabilities for municipalities. The current system has created a political arena in which those who challenge the status quo, call out bigotry, criticize ideas, or show strength on equity issues are punished by commissioners and councils at unlimited, uncontrolled taxpayer expense. This is a barrier to necessary renewal in municipal leadership and an affront to local democracy.

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