Catch 22 and the City of Nanaimo

Ron Bolin: June 19, 2017
Some may have noted that our Council, holds an IN_CAMERA meeting behind closed doors in a private room preceding almost every open (i.e. public) Council meeting. IN-CAMERA is a term meaning “in private”. In the context of our City Council it provides authority for Council, along with others who they may invite, to meet to discuss matters pertaining to the City without the prying eyes and ears and inquiring minds of the public.
Municipal IN-CAMERA meetings are based on BC’s Community Charter which, along with the Local Government Act, lays out the conditions under which the Province of BC permits municipalities to operate. The Community Charter can be found at:
http://www.bclaws.ca/Recon/document/ID/freeside/03026_00
The most relevant sections regarding IN-CAMERA meetings are 89 and 90. Note underlining and enlarged text have been added by the author for emphasis.

BC Community Charter

Division 3 — Open Meetings
General rule that meetings must be open to the public
89 (1) A meeting of a council must be open to the public, except as provided in this Division.
(2) A council must not vote on the reading or adoption of a bylaw when its meeting is closed to the public.

Meetings that may or must be closed to the public
90 (1) A part of a council meeting may be closed to the public if the subject matter being considered relates to or is one or more of the following:

(a) personal information about an identifiable individual who holds or is being considered for a position as an officer, employee or agent of the municipality or another position appointed by the municipality;
(b) personal information about an identifiable individual who is being considered for a municipal award or honour, or who has offered to provide a gift to the municipality on condition of anonymity;
(c) labour relations or other employee relations;
(d) the security of the property of the municipality;
(e) the acquisition, disposition or expropriation of land or improvements, if the council considers that disclosure could reasonably be expected to harm the interests of the municipality;
(f) law enforcement, if the council considers that disclosure could reasonably be expected to harm the conduct of an investigation under or enforcement of an enactment;
(g) litigation or potential litigation affecting the municipality;
(h) an administrative tribunal hearing or potential administrative tribunal hearing affecting the municipality, other than a hearing to be conducted by the council or a delegate of council;
(i) the receipt of advice that is subject to solicitor-client privilege, including communications necessary for that purpose;
(j) information that is prohibited, or information that if it were presented in a document would be prohibited, from disclosure under section 21 of the Freedom of Information and Protection of Privacy Act;
(k) negotiations and related discussions respecting the proposed provision of a municipal service that are at their preliminary stages and that, in the view of the council, could reasonably be expected to harm the interests of the municipality if they were held in public;
(l) discussions with municipal officers and employees respecting municipal objectives, measures and progress reports for the purposes of preparing an annual report under section 98 [annual municipal report];
(m) a matter that, under another enactment, is such that the public may be excluded from the meeting;
(n) the consideration of whether a council meeting should be closed under a provision of this subsection or subsection 2;
(o) the consideration of whether the authority under section 91 [other persons attending closed meetings] should be exercised in relation to a council meeting.

(2) A part of a council meeting must be closed to the public if the subject matter being considered relates to one or more of the following:

(a) a request under the Freedom of Information and Protection of Privacy Act, if the council is designated as head of the local public body for the purposes of that Act in relation to the matter;
(b) the consideration of information received and held in confidence relating to negotiations between the municipality and a provincial government or the federal government or both, or between a provincial government or the federal government or both and a third party;
(c) a matter that is being investigated under the Ombudsperson Act of which the municipality has been notified under section 14 [Ombudsperson to notify authority] of that Act;
(d) a matter that, under another enactment, is such that the public must be excluded from the meeting;
(e) a review of a proposed final performance audit report for the purpose of providing comments to the auditor general on the proposed report under section 23(2) of the Auditor General for Local Government Act.

An examination of the reasons given for going IN-CAMERA in all those many meetings of Council is very rarely that they MUST do so. The overwhelming majority of IN-CAMERA cases are due to a decision by Council to discuss matters away from the prying ears of citizens.
An examination of the reasons why a Council MAY go IN-CAMERA demonstrates that it would be almost impossible to find any activity performed by a Council which cannot be construed as falling under one of Section 90 (1)’s 14 rationales for doing so. Another phrase used to justify going IN-CAMERA is that a matter deals with Land, Labour or Litigation, the holy trinity which seems to have been the standard prior to the Community Charter. Again, what does Council do which does not fall under one or more of the 3Ls?

This is where Catch 22 comes in. Nothing is required to come out for many years about what actually was under discussion so the public cannot judge the legitimacy of the action which Council took in going IN-CAMERA in the first place. Further, another section in the Community Charter demands silence on such matters from Councillors thus reinforcing the stifling blanket placed over Citizens. I think you may agree that the operation of criminal enterprises share the silence of omerta

( http://www.thefreedictionary.com/omerta  :

Omerta, a rule or code that prohibits speaking or divulging information about certain activities, especially the activities of a criminal organization.) brought about by the use of section 90(1).
Are there subjects which are not suitable for discussion before the public? I am sure that there are. But how do we ensure that those subjects are limited to those necessary subjects when a claim can be made for virtually any matter which is to appear before Council? One way might be to demand a more cogent and specific definition of the reason why a topic should go IN-CAMERA. Another would be to elect Councillors who are judicious in the use of IN-CAMERA power. It is apparent that some Councillors are wary of taking any chances on what is put before them while others are quite happy to make decisions in secret.
What do you think about our public business being done IN-CAMERA and the pall that it has thrown over the credibility of our current Council?
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