Ruling on openness merits applause, attention

The Supreme Court of Canada's recent ruling that quashed a City of London bylaw should be required reading for every municipal council member and school trustee in Ontario.

The 7-0 decision set aside a bylaw that froze development along a corridor near the University of Western Ontario for a year in response to residents' complaints at the number of student housing units being built.

Although the zoning measure was clearly something within the city's jurisdiction, the problem was that it was passed at an eight-minute open meeting of city council after all debate had taken place at two incamera sessions.

That once was something that could happen legally in Ontario, but not since 1995, when amendments to the Municipal Act specified that, with a few exceptions, all business of municipal councils and other public bodies must be conducted in public.

The changes were made in the wake of two reports which found that all too often most of the real work of councils and school boards was taking place behind closed doors, with the action in public being of the rubber stamp variety.

As Justice Louise Charron noted on behalf of the court, prior to 1995, whether a meeting was open to the public or not generally depended not on the subject matter under consideration, but on the type of meeting being held.

"In Ontario, as well as under various provincial statutes, regular council meetings were generally open to the public while committee and other meetings were closed and could only be opened at the discretion of council. It is particularly noteworthy that one recurring problem mentioned in the 1984 Ontario Report of the Provincial/Municipal Working Committee on Open Meetings and Access to Information was that 'some municipal councils employ lengthy, in-camera special and committee meetings to discuss matters under debate and then ratify their decision in full council in a few minutes, with minimal discussion.'"

A similar observation was made back in 1980 by the report of the Ontario Commission on Freedom of Information and Individual Privacy, Public Government for Private People.

"In the hope of thereby fostering democratic values, and responding to the public's demand for more accountable municipal government, these reports recommended compulsory open meetings of municipal councils and committees, subject to narrow exceptions," Justice Charron wrote, noting that the reports' recommendations were acted upon by the NDP government, initially in a 1992 study report, Open Municipal Government, from the Ministry of Municipal Affairs, and finally in Bill 163 (the Planning and Municipal Statute Law Amendment Act, 1994), which adopted the open meeting requirement now found in s. 239 of the Municipal Act, 2001.

Justice Charron cited Hansard from November 1994 as support for her conclusion that the open meeting requirement "was intended to increase public confidence in the integrity of local government, by ensuring the open and transparent exercise of municipal power."

It would seem that the change in law had little, if any, impact in London. And the ruling by Canada's top court left us wondering whether similar situations might exist closer to home.

Long before the 1995 Municipal Act revision, at least one municipal council was even more media-friendly than any to be found currently in this part of the province.

Under the leadership of Reeve George Reid, council in the then Township of Mono had a policy of allowing the two newspaper reporters who routinely covered the council sessions to remain during all in-camera discussions, the only instruction from the Reeve being, "Pencils down!" The understanding was that the reporters could witness what went on so they would have a better understanding of the decisions ultimately made. The unusual process led to better reporting and a great rapport.

The nature of in-camera sessions makes it impossible to know whether a council or school board is using them merely as a means of achieving freer debate and avoiding potentially unfavourable media reports.

In this electronic age, perhaps it would be a good idea to require all public bodies to record their in camera debates, if only to provide a means by which a potential litigant could challenge a result of the discussions, in the same way the London developer, RSJ Holdings Inc., successfully challenged the London bylaw.