Municipal Election 2018

A Fragile Democracy: Procedural Bylaw Change Muzzles Citizens

Proposed changes to how residents engage with Hamilton Councillors threaten our fundamental democratic values.

By Cameron Kroetsch
Published June 29, 2018

First, Some Context

The City of Hamilton is on the verge of revisiting its Procedural Bylaw [PDF], the bylaw that governs how Council makes decisions, spends money, and conducts representative democracy. All very important stuff.

The focus of this article is on a particular change that I think all residents will find troubling. Staff presented a review of the Procedural Bylaw at the June 28, 2018 Governance Review Sub-Committee meeting (item 9.1 on the agenda). You can read the proposed revision here [PDF].

The change being suggested in Section 7, "Order and Decorum", says that no person in attendance at a Council or Committee meeting may speak disrespectfully of any vote of Council or a Committee.

7.1 No person in attendance at a Council or Committee meeting shall:

(a) speak disrespectfully of any vote of Council or a Committee;

That may sound innocent enough, but the key word "disrespectfully" is not defined. That leaves some obvious questions: What behaviour constitutes disrespectful? Should we conclude that this is about rudeness or incivility?

The fact is, those sorts of issues, and issues of hate speech and other inappropriate conduct, are dealt with in other parts of the bylaw. This language quite literally means that you cannot disagree with the sometimes-bad decisions of Council or a Committee. For me, and I think for all of us, that's a violation of our right to speak freely to and about our government.

This change appears to suggest that our Councillors are not open to hearing what the public has to say, unless we agree with them. For me, this is exactly the wrong kind of thinking. I believe that as engaged residents, we need to increase, not decrease, our ability to hold our elected leaders accountable for the decisions they make. We need to be able to speak freely.

What I've Done so Far

Last November I was given permission by the Governance Review Sub-Committee to work directly with the City Clerk's office to provide suggestions and comments on the existing bylaw.

I discovered that parts of the bylaw were contradictory and unclear and that some sections were just plain undemocratic. There are also sections of the Municipal Act cut and pasted into the bylaw without citations to indicate where they came from.

After my review, I submitted more than 200 comments to the City Clerk's office. My suggestions were all intended to make the bylaw clearer and more understandable for the average resident and to correct errors or omissions that might be perceived as undemocratic.

The City Clerk took about ten percent of what I submitted. While I believe those changes helped, the new language infringing on our democratic rights moves things in the wrong direction.

I find this all pretty troubling, especially since it's not at all clear where this is coming from. I wonder exactly what problem these changes are designed to resolve? Who asked the City Clerk's office to include them? And on what authority did they do this?

Councillor Matthew Green, who was, until recently, the Vice Chair of this subcommittee, is asking the same questions.

How Did this Happen?

There are a few possibilities that have come to mind for me:

All three of these possibilities are troubling but the possibility that this came from the subcommittee or another councillor is the most concerning to me. If the subcommittee or its members were working together to formulate amendments to the bylaw, they are required, by law, to do so in public.

It seems to me that only councillors who feel threatened by public inquiry, commentary and criticism could be perceived to benefit from these changes.

Why the Rush?

The current bylaw mandates a public review before the end of this term of Council, yet these changes are being presented at the last minute. Rather than starting the process of review earlier on in this term of Council, and in stages leading up to the end of the term, the City has tried to cram them through at the last minute, all together, right before a municipal election takes place.

This doesn't give councillors enough time to review the changes closely. I know not every councillor who attended the subcommittee meeting had read the changes. The City has stopped including all of the appendices for agendas in the printed handouts to Councillors, which can further compound the problem for some Councillors who rely on printed documents to do their preparation.

In addition, the copies that were circulated did not include tracked changes (as they had when this exercise was conducted in 2014), making it almost impossible to see what changes had been made.

The amount of time it took me to prepare for my delegation tripled when I had to find and download professional software just to track the changes between the old and new versions. Residents should not be expected to do this, ever. I'd even argue it's unreasonable to expect Councillors, or their staff, to do it.

NOTE: you can see my revised version [PDF] if you want to check it out or pass it along to anyone. This compares the new proposed bylaw to the old procedural bylaw and shows the changes that were made.

Where are we Now?

The outcome of the subcommittee meeting was to direct staff to review the bylaw again, issue a report qualifying the proposed changes, and submit them to a legal review by the City Solicitor.

If the subcommittee waits until the end of August to hear back from staff, the time pressures will be even greater because the changes will have to go to the Audit, Finance and Administration Committee and then on to Council for approval.

What can we do?

Given the needlessly tight timeline, I recommend three actions:

  1. Hold a special or emergency meeting of this subcommittee in July

  2. Announce the meeting far and wide and encourage delegations from the public

  3. Request that staff implement the feedback from the delegations into a new proposed bylaw to be approved at the August meeting

There's still time to get this right. Getting it right is not optional, it's mandatory if we want our City officials to demonstrate that they support our democratic values.

We can do better, and we can fix this, together.

Editor's Note: Cameron Kroetsch is a registered candidate for Ward 2 in the upcoming October 22, 2018 municipal election. You can see the official list of registered candidates on the City of Hamilton's Nominated Candidates for Mayor and Ward Councillor web page.

Raise the Hammer has a longstanding policy of not endorsing candidates, and this article should not be regarded as an editorial endorsement of the author. However, all candidates are welcome to submit articles for publication. We will accept any submission that does not violate our submission guidelines. Raise the Hammer is a free, volunteer-run publication that does not charge money for access to content and does not receive any revenue of any kind, including for commercial or political advertising.

You can find all of our municipal election coverage on our elections website.

Cameron Kroetsch (he/him) moved to Hamilton in 2014. He's a proud resident of Ward 2 and cares deeply about accountability and transparency in municipal government. He loves the sparrows at City Hall, his cats and dog, and his partner Derek.


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By KevinLove (registered) | Posted June 29, 2018 at 09:40:12

"Speak disrespectfully"? How odd.

Why re-invent the wheel? Unparliamentary language has been well defined by rulings by the Speakers of the House of Commons in Ottawa and of the Legislative Assembly of Ontario since 1867.

My suggestion for a by-law would read like this:

7.1 No person in attendance at a Council or Committee meeting shall: a) Use unparliamentary language. b) In determining what is unparliamentary language, the Speaker of Hamilton City Council or Chair of the committee shall rely upon precedents set by the Legislative Assembly of Ontario.

Problem solved!

Comment edited by KevinLove on 2018-06-29 09:41:40

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By JoeyColeman (registered) - website | Posted June 29, 2018 at 12:02:13 in reply to Comment 123169

The Council cannot simply adopt the standards of the Legislature, as those standards may not stand in a Charter challenge. In law, they cannot be cited as a defense, they can be cited as an example of community standards, but nothing more. The reason for this is that the Legislature and Parliament both enjoy Parliamentary Privilege and their codes cannot be tested against the Charter.

Whereas, a Municipal Council does not enjoy privilege, and must comply with the Charter.

As an example, if someone where to call a Councillor a liar, and is ejected from the Chamber for "unparliamentary language"; they can go to the Divisional Court and cite the defence of truth in stating their Charter Right to expression has been violated.

Similarly, if someone is to call a Councillor a hypocrite, that's "unparliamentary language", but even more clearly protected by the Charter.

The Bracken v. Fort Erie (Town), 2017 ONCA 668 case is instructive. I'll note that context matters, and that language within a Council Chamber will be judged in a different context than that directly outside City Hall, nonetheless, the Court is clear that expression will be protected by the Court when it is criticizing those in power. (The courts are consistent in dismissing libel suits by political bodies, politicians, and government officials in all but the most extreme of cases. Niagara Peninsula Conservation Authority v. Smith, 2017 ONSC 6973 is a good recent example. (Personally, I like citing Halton Hills (Town) v. Kerouac, 2006 CanLII 12970 (ON SC)))

I'll draw your attention to paragraph 58 of Bracken v. Fort Erie:

Mr. Bracken’s speech, that day, was directed towards protesting the expected adoption of a by-law that he understood to be promoting the interests of a marijuana facility across from his home. He wanted the by-law defeated. He also criticized the members of Town Council. No doubt, they did not like being called liars and communists. Mr. Brady did not like Mr. Bracken calling for him to be fired. On cross-examination, he stated that Mr. Bracken had no right to say so. He viewed it as a threat to his livelihood. The language was neither polite nor restrained. But as this Court pointed out in Cusson v. Quan, 2007 ONCA 771 (CanLII), 87 O.R. (3d) 241, rev'd 2009 SCC 62 (CanLII), [2009] 3 S.C.R. 712, at para 125: “(d)emocracy depends upon the free and open debate of public issues and the freedom to criticize the rich, the powerful and those … who exercise power and authority in our society… Debate on matters of public interest will often be heated and criticism will often carry a sting and yet open discussion is the lifeblood of our democracy.”

The City Council's Procedural Bylaw needs to focus on disruption to proceedings, not language. There is language which is disruptive, racism for example is disruptive. The 'pressing and substantial' goal of the Procedural Bylaw is to ensure the effective and good governance of the City of Hamilton. Language which disrupts or creates a hostile environment on protected grounds can be forbidden to get to that goal. Language which is solely uncomfortable or undesired cannot be restricted.

Comment edited by JoeyColeman on 2018-06-29 12:03:13

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By kevinlove (registered) | Posted June 29, 2018 at 14:20:02 in reply to Comment 123172

Thank you, Joey! That was quite interesting.

My concern was that a ban on "speaking disrespectfully" would be used by the usual politically correct thought police to stomp out ideas that they do not like. Restricting this to a mere ban on unparliamentary language would allow for the free expression of ideas.

But the information you present leads to the conclusion that there is almost no possibility of preventing anyone from "speaking disrespectfully."

We have laws concerning things such as slander, incitement to violence, etc. I am now inclined to simply not have any bylaw at all concerning the content of speech, and merely rely upon the public laws of Canada.

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By JoeyColeman (registered) - website | Posted June 29, 2018 at 14:31:46 in reply to Comment 123174

The "speaking disrespectfully" was open to abuse, and the history of this Council makes it very reasonable to believe they would abuse it.

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By cameronkroetsch (registered) | Posted June 29, 2018 at 10:16:51

Even easier, don't change the current bylaw. The present wording does not limit the rights of attendees in this manner.

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By JoeyColeman (registered) - website | Posted June 29, 2018 at 11:26:24 in reply to Comment 123170

The current bylaw is too restrictive and must be amended to reflect both the Bracken and Gammie rulings from the Ontario Court of Appeal, and Ontario Superior Court respectively.

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By cameronkroetsch (registered) | Posted June 29, 2018 at 13:19:23 in reply to Comment 123171

Good point, Joey. I don't know those rulings well, thanks for pointing out that I overlooked that.

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By JoeyColeman (registered) - website | Posted June 29, 2018 at 14:32:26 in reply to Comment 123173

The residents of Hamilton owe you a debt of gratitude for offering such well researched and good advice to the City on the matter of the procedural bylaw.

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