Have you ever attended a municipal council meeting and sat through countless public delegations wondering, what does this have to do with anything? No matter how seemingly off-topic the public comments may appear, and even as I may stare at the clock ticking down the time remaining for the delegation, I must remind myself that central to democracy is one’s ability to communicate with elected officials. Although municipal government is very accessible to residents, who have the right to communicate with their council, this case answers whether the public have an unfettered right to meaningful communication.
In Mann v Saugeen Shores,[1] the Applicant claimed Charter violations because of their alleged denial to “meaningfully communicate” with elected officials. The municipality admitted to barring the Applicant’s request to communicate with Council in accordance with their procedural by-law, which was modelled after the procedural by-laws of other municipalities, including requirements such as time restrictions for delegations and presenting only on new information during subsequent delegations on the same topic.[2] The Town did not challenge an individual's fundamental right of communication with elected officials, and the Court agreed that such a fundamental right is protected by Section 2(b) of the Charter. However, the Town challenged the Applicant's claim of the right of "meaningful communication".[3]
The Applicant claimed a right to meaningfully communicate does not merely include one’s fundamental right to communicate with elected officials. Rather, the Applicant went a step further by defining “meaningful” to include: “…the right to, in effect, oblige elected officials to respond to inquiries and questions.”[4] The Applicant submitted that: "A citizen confronted with silence from his or her elected officials will never know if he or she was meaningfully heard."[5] Furthermore, the Applicant claimed that Town Council’s ability to deal with legal matters in private forum undercut said Charter right.[6]
Section 2(b) of the Charter enshrines the right to freedom of expression, which has valiantly been judicially safeguarded due to its essentiality with political discourse in a democratic society. However, this right, like all Charter guarantees, is not absolute. The Court held that the Town’s by-law on its face-value did infringe the Applicant’s Section 2(b) rights. Under the Oakes analysis, the Court determined that the violation was justified because it was reasonable for the Town to create by-laws that would allow itself to conduct Council affairs in an effective and efficient manner and exempt discussions concerning litigation or potential litigation matters to in-camera sessions pursuant to section 238 and 239 of the Municipal Act.[7] The Court rightly noted:
…Meetings must be conducted in an efficient and effective manner. If residents had the right to communicate before Council repeatedly, on the same subject, without any new material, it would be contrary to the objective of such by-laws.[8]
The Court found that Section 2(b) of the Charter does not include the right to “meaningful communication," including the right to receive a response from the elected officials.[9] Notwithstanding section 2(b)’s demand of a broad purposive interpretation, elected officials have no Charter-based obligation to respond to a citizen’s communication.[10]
Residents do not have an unfettered right to communicate with their elected officials. This case illustrates the balancing act that municipalities must deal with - the right of residents to engage with council whilst protecting council meetings from being impeded by unreasonable expectations. As the Court rightly sums it up: “If limitations were not in place Council and Committee meetings could turn into a ‘free for all’ and impair Council in moving forward with the business of the Town."[11]
[7] Supra at para.103, 109, 110
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