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Municipal - Integrity Commissioner (2). Jonker v. West Lincoln (The Township of)
In Jonker v. West Lincoln (The Township of) (Div Court, 2024) the Divisional Court considered a JR, here challenging a finding that - after "investigation by the Township’s Integrity Commissioner" - the applicant had "contravened two sections of the Township’s Code of Conduct for his actions" during the "January/February 2022 Freedom Convoy protest in Ottawa against government lockdowns and Covid-19 vaccine mandates"].
In these quotes the court considers the interaction (or rather 'non-interaction') of the presence of Charter rights to the nature and extent of administrative 'penalty', here in a municipal 'integrity commissioner' context:[6] For the reasons that follow, I would grant the motion for an extension of time, but dismiss the application on its merits. Mr. Jonker’s s. 2 Charter rights were relevant to the exercise of the Integrity’s Commissioner’s discretion, which was to make a finding on whether Mr. Jonker’s actions at the Freedom Convoy protest violated the Township’s code of conduct. The Township was bound by those findings. Any discussion of Mr. Jonker’s s. 2 Charter rights at the penalty phase would have amounted to an attempt to undermine the Integrity Commissioner’s conclusion that Mr. Jonker’s s.2 Charter rights did not excuse the misconduct at issue. In other words, Mr. Jonker’s s. 2 Charter rights were not relevant to the exercise of the Council’s discretion in dealing with penalty.
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[24] I accept Mr. Jonker’s submission that when making its decision on penalty (which was a discretionary decision), Council was required to consider all relevant Charter rights. Thus, the question becomes whether Mr. Jonker’s s. 2 Charter rights were relevant to Council’s decision on penalty.
[25] To answer this question, it is important to highlight the structure of the Act. As set out above, it is the Integrity Commissioner who is given the power to determine whether a member of Council has violated the Municipality’s code of conduct. As Mr. Jonker concedes, Council is bound by the Integrity Commissioner’s findings with respect to whether there has been misconduct. If the Integrity Commissioner has made no finding of misconduct, Council has no further role. If the Integrity Commissioner makes a finding of misconduct, Council may make a decision as to which penalty to impose. In doing so it may consider any recommendations as to penalty made by the Integrity Commissioner and may accept, reject or modify those recommendations. In Mr. Jonker’s case, Council accepted the Integrity Commissioner’s recommendations as to penalty.
[26] In his factum, Mr. Jonker submitted that Council’s decision on penalty must be set aside for two reasons:A. The Council did not attempt to apply the well-know Doré analysis and balance the limitation of Mr. Jonker’s Charter rights while considering whether to impose a penalty on Mr. Jonker; and
B. Even if Council did undertake such a balancing exercise, the Decision does not reflect a proportionate balance between Mr. Jonker’s Charter rights and the Code’s objectives. [27] According to Mr. Jonker, Council’s penalty decision “unquestionably limited Mr. Jonker’s Charter protection because it punished Mr. Jonker for his participation in a political protest.” There is no issue that the Charter rights at issue are Mr. Jonker’s s. 2 rights of freedom of expression, freedom of peaceful assembly and freedom of association.
[28] I agree that Council’s decision had the effect of punishing Mr. Jonker for his participation in a political protest. However, the reason that Council decided to punish Mr. Jonker for his participation in a political protest is that the Integrity Commissioner decided that Mr. Jonker’s participation in that protest constituted misconduct.
[29] The Integrity Commissioner made a distinction between what he called the “peaceful stage of the protest” (which was before the federal government invoked the Emergencies Act) and the stage where the “Demonstration was deemed to be unlawful” (after the government invoked the Emergencies Act). The Integrity Commissioner was clear that Mr. Jonker committed no misconduct during the peaceful stage, but that once the demonstration “was deemed unlawful” Mr, Jonker’s s. 2 Charter rights no longer protected his conduct.
[30] Mr. Jonker argued before us that the conclusion that the demonstration became “unlawful” after the Emergencies Act was invoked is unreasonable. Therefore, the conclusion that Mr. Jonker lost his s. 2 rights once that legislation was invoked is also unreasonable.
[31] There may or may not be merit to this submission. However, what is clear is that it is a submission that goes to the issue of whether Mr. Jonker’s participation in the protest constituted misconduct. To make the submission again before Council, as Mr. Jonker argues he should have been able to do, would be to question the Integrity Commissioner’s finding as to whether his actions constituted misconduct under the code.
[32] This brings me back to the structure of the Municipal Act, which is that Council is bound by the Integrity Commissioner’s findings as to misconduct. Therefore, in exercising its jurisdiction as to penalty it cannot do so in such a way that would seek to set aside the Integrity Commissioner’s findings on the question as to whether misconduct had occurred. Yet this is precisely what Mr. Jonker states the Council should have done. In effect, he is arguing that Council should have refused to punish him because his conduct was protected by s. 2 of the Charter. If this is true, his conduct cannot be considered misconduct.
[33] This is not to say that Council does not have a duty to consider Mr. Jonker’s Charter rights, if there are any rights that are relevant to its decision. However, in this case, Mr. Jonker’s s. 2 Charter rights were relevant to the Integrity Commissioner’s decision, not to Council’s decision on penalty, which is the only decision that is the subject of this application for judicial review.
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