Questions raised about ability of councillors to be impartial in quasi-judicial censure hearings

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anaimo’s fractious city council will hold secret hearings tomorrow to punish mayor Bill McKay and councillor Diane Brennan for allegedly creating a toxic work environment for city manager Tracy Samra,has learned.

The so-called censure hearings follow a report by Vancouver labour lawyer Roslyn Goldner into a complaint filed against the two council members by Ms. Samra earlier this year. It’s unclear what the allegations against Mr. McKay and Ms. Brennan are since the report has not been made public.

However, according to a brief article in the Globe & Mail, which was provided with a copy of the report, Ms. Goldner found that several councillors contributed to creating a toxic work environment for staff, not just the two being accused at tomorrow’s hearings.

Hostilities raise fairness questions

The deep hostilities on Nanaimo’s fractured council raise serious questions about how fair the censure hearings will be.

Some of the councillors who are expected to stand in judgement of Mr. McKay and Ms. Brennan have in the past openly expressed animosity towards them.

The risk of the hearings being turned into a politically motivated kangaroo court is heightened by the fact that the public and the media will be barred from attending.

The city has scheduled three closed-door meetings for tomorrow. Two of these — one at 1:00pm and the other at 4:00pm — were first announced on October 18. They are believed to be the hearings for the two council members.

The third meeting at 11:30am was announced last week and is thought to be a briefing for councillors on their duties for the quasi-judicial hearings. It’s expected that councillor Jerry Hong will chair the hearing since he is next in line as acting mayor.

While the meeting notices don’t indicate that they are for censure hearings, councillor Jim Kipp let slip to News Nanaimo a month ago that some action was being taken against members of council.

Last week, a source close to councillor Gord Fuller confirmed that the meetings deal with censure of Mr. McKay and Ms. Brennan arising from the Goldner report.

“Abuse of process for cheap political gain”

The ability of councils to censure their own members is not governed by provincial law, but has been established through court rulings.

The first of these was rendered by B.C. Supreme Court Justice Robert Crawford in 2011 when he found that councils have the implied power to regulate the behaviour of their members.

However, in his ruling the judge cautioned that censure “is a power to be exercised with great care and great discretion. Far too easily, this could turn into an abuse of process for cheap political gain, and any council that sets out in this direction must be careful in what it is doing.”

The judge said accused councillors are entitled to fair notice of what the charge is and what the potential punishment or sanction could be. They are also entitled to a fair hearing and have a right to be heard.

In the case before the judge, a Prince George councillor had been convicted of leaking a confidential report to the media. At the censure hearing, the mayor and another councillor withdrew because of concerns that they could not be unbiased.

It is not known if councillors Bill Bestwick, Kipp, Bill Yoachim and Fuller will withdraw themselves from the hearings. All have made public comments in the past that would call into question their ability to be unbiased.

Alberta case upholds penalties

While Justice Crawford found that Prince George council could censure its members, he expressed doubts about their ability to penalize members.

However, a subsequent case in Alberta in 2015 was the first in Canada to establish a council’s authority to impose sanctions as a result of censure of a council member.

In that case, the council of Fort Macleod censured mayor Rene Gendre and issued a long list of penalties, including reassigning his pay to the deputy mayor, removing him from all committees, and revoking his authority to sign bylaws.

Mr. Gendre appealed the actions taken against him to the Alberta Court of Queen’s Bench, but a judge upheld the council’s sanctions.