Presented by Steve Sainsbury
Case Number-MM080065
We believe we have put forward a compelling case.
During my opening comments I recommended 5 criteria to assist you in making your decision.
I will now review each criterion and provide a summary of key evidence and identify legislative and Ontario Municipal Board Case evidence that supports my contention.
CRITERIA 1
Have we demonstrated there is a pressing need for change to the electoral system in Kearney because the current electoral system is not democratic and doesn’t meet the minimum requirements for fair representation?
In our testimony we have provided indisputable evidence that the current electoral system is not representative. The bottom-line is it takes dramatically fewer votes to elect a Councillor in Ward 1 then it does in either Ward 2 or 3. By any reasonable measurement it is not acceptable in a democratic system for a voter in Ward one to have their vote worth approximately 3 times that of a voter in Ward 2 and 5 times that for a voter in Ward 3.
Dr. Williams in his testimony referred to the The Attorney General for Saskatchewan v. Roger Carter et.al [1991] 2 S.C.R.158 (TAB 11 in the appellant) Binder,
This Supreme Court Case has been used as the seminal case on effective representation.
What was said in this case:
The Supreme Court of Canada ruled on whether variances can be tolerated in the size of voter populations among constituencies and the distribution of those constituencies among urban, rural and northern areas for provincial electoral districts. In that case, Madam Justice McLaughlin determined that Section 3 of the Charter of Rights, which establishes that every citizen has the right to vote in an election of federal or provincial members of parliament establishes the right to “effective representation”. Effective representation “comprehends the idea of having a voice in the deliberations of government as well as the idea of the right to bring one’s grievances and concerns to the attention of one’s government representative”.
The Court held that the first condition of effective representation is relative parity of voting power. The Court states at page 183:
“...A system which dilutes one citizen’s vote unduly as compared with another citizens’ vote runs the risk of providing inadequate representation to the citizen whose vote is diluted. The legislative power of the citizen whose vote is diluted will be reduced, as may be access to, and assistance from, his or her representative. The result will be uneven and unfair representation....
It emerges therefore that deviations from absolute voter parity may be justified on the grounds of practical impossibility or the provision of more effective representation. Beyond this, dilution of one citizen’s vote as compared with another’s should not be countenanced.” (emphasis the appeallants)
In the Kearney case we clearly see the votes in Ward 2 and Ward 3 are dramatically diluted when compared to Ward 1. This meets the Carter case definition for unfair representation.
CRITERIA 2
Have we followed a Public consultative process that was fair and comprehensive? Did it provide an accurate and clear direction for future action by the Council? Did the option to eliminate the wards have significant and widespread public support?
In Dr Williams testimony he has supported both the process and results of the Ad Hoc Wards Committee. As an expert, he viewed the Committees deliberations as effective. You have heard testimony by Mr. Dingwall and have reviewed the extensive documentation that was created to ensure an effective review of the electoral process occurred and that clear recommendations be made to Council. The evidence shows that the Committee acted in a competent and professional manner.
Our research has indicated a Municipal Council by the act of the appointment of a Committee to conduct a review study are by extension of their ‘intra vires’ authority empowering the Committee to act on their behalf. Providing that the Committee exhibits due diligence and reasonableness in reaching its recommendations the Committee’s conclusions should have been given consideration based upon the deferential standard normally afforded Council. What happened in the Kearney case? Evidence has shown that no rationale was ever given for their arbitrary unfair, and unreasonable decision. This contention is supported in the following case:
At the September 11th Council Meeting the decision to reject the Ad Hoc Ward Committee Recommendations was made without debate in less than 3 minutes. No valid rationale was ever provided.
Within days of the Council meeting, the Mayor publically communicated ‘a preferred solution’ that would see a realignment of the Wards. However, evidence has shown no discussions ever occurred with Council or the Ad Hoc Wards Committee.
Many attempts were made to allow for a ‘made in Kearney’ solution by Mr. Skelton. None were even acknowledged.
The evidence leads to a single conclusion. Council had no intention of making a serious attempt at resolving the electoral inequities.
The public consultative process was well attended. As indicated by Dr. Williams, the public participation level was very high when compared to similar exercises in other municipalities he has experienced.
We received 35 written submissions of which:
- 29 were in favour of the no wards solution
- 4 were in favour of realigning the Wards
- 2 were in favour of the status quo
- 4 delegations to the committee
- 76 of the approximately 86 ratepayers officially signed in at the Public meeting
- 128 signed the petition of electors
Those that chose to participate overwhelmingly wanted change and preferred the ‘at large’ system.
CRITERIA 3
Have we demonstrated that the ‘at large’ representative system is an effective electoral process for a town like Kearney?
All of our neighbouring municipalities in the Almaguin district who had Ward systems have shifted to an ‘ at large’ system. There is no question that it works and will work here in Kearney. There is no case that Kearney is significantly different than any of its neighbours who operate effectively with an “At large” system.
An expert opinion is most appropriate in answering the relevance for an ‘at large’ system vs. a Ward system.
I will quote from Dr. William’s testimony
‘The threshold between “small” and “large” municipalities is not set out in the Municipal Act either but expert advice once given by an employee of the Ministry of Municipal Affairs (Mr. George Manios) at the Ontario Municipal Board Hearing on a ward system for Oshawa (M840053, March 1985, pp. 26-27) suggested that a population of 50,000 was a reasonable point at which to consider changing from an at-large to a ward system. The Town of Kearney is not even in the vicinity of that threshold.’
‘It is instructive to note that all other municipalities in the Almagiun region have abandoned ward systems in favour of at-large elections. The comment from the CAO/Clerk of a neighbouring municipality is instructive: one of the objectives of a change in the electoral system was “to get the community to think as one.” As noted earlier, an electoral system that perpetuates long-defunct component municipalities when those boundaries reflect no demonstrable differences in the demographics or the service responsibilities of the municipality is of questionable value. An at-large system in a small municipality can make a positive contribution to community building.
‘Democratic election methods should ensure that electors have a choice; this is more likely to happen in an at-large system. Unfortunately, as the 2006 election showed, acclamations are much more frequent in ward elections and in such cases the performance of elected representatives cannot be judged by electors.’
In conclusion Dr Williams stated in his testimony:
“It is highly improbable that anyone would set out to design a viable ward system for the modern Town of Kearney that looks like the status quo.”
A critical piece of evidence is what the people of Kearney have said. What would be gained by changing to an at large system? The following are a just a few key points made:
• It will not only provide equal representation for all, it will also help to unify the community
• Kearney is a very small Town and governance must be kept both simple and fair
• No one neighbourhood or Lake community will have dominance over any other neighbourhood or interest group
• There is no difference between a resident
and a non resident. It puts us all in the same basket. We will protect the environment, fight for everyone, our seniors, our lakes our roads
• The Ward System in small mainly rural or highly seasonal communities both creates and perpetuates a dysfunctional divisiveness within the community.
• Our future strength will come from a united Kearney not one divided.
CRITERIA 4
Have we demonstrated that Kearney is a very homogeneous community? Does its municipal services and management currently operate with no practical requirements for the arbitrary Ward boundaries?
Let us review the facts: The demographic evidence shows Kearney is a very homogeneous community. It is:
o Overwhelming English speaking
o A community made up of mature individuals (median age 50)
o Very few visible minorities
o Primarily made up of lake communities with residents living on lakefront properties. (approx. 70%)
Kearney represents a population that is eminently suited to an “at large” system of electoral representation. We do not have diverse groups such significant numbers of first nations peoples, French speaking or any other minorities that could require special consideration in the electoral process. The only reference that has ever been made for diversity in Kearney is permanent residents vs. all the others. The implication that a permanent resident should have ‘special status’ is not consistent with the Charter of Rights and Freedoms. ‘Not being from around here’ is not a valid reason to eliminate a voters rights.
We have demonstrated that the issues in the last election were generic. There has been no evidence presented that indicate the Ward boundaries and groupings of citizens reflect different needs in the population. It can only be concluded that the politicians are defending this untenable system for their own self interests.
Mr. Varty has reviewed the town services
and has shown:
• No services are based upon usage. Every elector is allowed the same number of garbage bags, uses the same roads and is protected by the same emergency services.
• The Town’s Official documents such as the Official Town Plan and The Kearney Strategic Plan provide no distinction between the current Wards. Wards aren’t even mentioned. Clearly there isn’t a structural need for Wards
• The services of the town are identical for all citizens except for garbage pickup in the old town site.
• The services operate with no practical impact of the arbitrary ward boundaries. Changing to an ‘at large’ system will eliminate the complexity of the Wards and will create no new complexities to replace it.
• Town management and administration will continue unaffected.
• Taxes are assessed based upon a common provincial system that doesn’t discriminate based upon how many days a year a person resides in a dwelling or property. In fact these non permanent residents pay over 50% of all the taxes in Ward 3 alone.
What members of Council are really saying is:
‘We want your money” BUT we don’t want your input on how it is spent and we don’t want to be held accountable to you.’
This creates “Taxation without representation.”
CRITERIA 5
Have we demonstrated that Council has acted in an arbitrary, unfair and unreasonable manner? Is there any likelihood that this issue will ever be addressed while the current ward system is in place?
What evidence do you have to base your decision that this Council has acted in an arbitrary, unfair and unreasonable manner? In determining motivation of Council we have 3 sources of evidence:
- what was said
- what was written
- what actions were taken
First lets analyze what was said by the Council
It is striking how little was said by anyone except the Mayor on this critical issue. However we do have a few newspaper quotes:
• Councillor Shirley Reeds was quoted as saying...”If we accept it, it gives Ward 3 the power to elect the entire Council and run it from another city” end quote (Tab 10 page 33 in the appellant Book)
• “ For about eight months of the year, more or less, the social culture in Kearney is made up of permanent residents” said Councillor Zummach of the possibility of summer residents being on Council. They don’t understand or care about the social culture we have here for the other 8 months. (Tab 10 page 34 in the appellant Book)
Both comment s reflect a clear prejudice against “those people who aren’t from around here”. Arbitrary, unfair and unreasonable statements made by Kearney Councillors.
What were in documents published by Council on this issue?
• In the mayor’s discussion paper of Nov. 12, 2008 (Tab 33 in the Common Document Book) he reiterates his position that there have been no arguments that support abolishing the Electoral Ward system in Kearney. We have just spent the last two days reviewing evidence that proves he statement isn’t accurate and wasn’t accurate at the time. An Arbitrary, unfair and unreasonable statement.
• He also states and I quote; ‘eligibility to vote is based upon residency and/or property ownership. There are basically two groups of voters: those with households and vacant land owners. ...he continues...For fair representation the focus must be on households.”
This effectively eliminates the voting rights for the landowners. An Arbitrary, unfair and unreasonable statement.
He goes on to give further evidence of his prejudice against land owners and the groups that represent them. I quote: ‘ Any group that has access to the phone numbers or email addresses has an advantage which can distort the democratic process. Also to reach the absentee voters is a more costly process and will favour the better funded candidates.’ An Arbitrary, unfair and unreasonable statement.
In addition, it is the appellants contention that The Mayor of Kearney by his words is coaching Council to violate the voting rights as defined under the Ontario Municipal Elections Act of 1996. The appellants contend that the Mayor is advocating the local municipal government overrule the legislative authority of the province and ignore the provision under sections 17. (1)
Qualificatiions
A person is entitled to be an elector at an election held in a local municipality if, on voting day, he or she,
(a) resides in the local municipality or is the owner or tenant of land there, or the spouse of such owner or tenant;(emphasis made by the appellants)
(b) is a Canadian citizen;
What have been the actions of Council on this issue?
If there was any doubt about the arbitrariness, unfairness and unreasonableness of Council, their actions in replacing the vacant Councillor position in Ward 1 leaves no doubt. At the same meeting they made their final decision regarding Wards Council demonstrated by their actions how important having Councillor Knowledge of a Ward district really is. What they did:
• They reject both of the qualified candidates from Ward 1. One of whom was an ex Mayor.
• They rejected an ex councillor from Ward 3
• They rejected their legal advice on the selection process
• They chose to select a candidate from Ward 2 who had never been on a Council committee and wasn’t even interviewed by Council.
Mr. Dingwall has also testified to a subsequent decision by Council to change its time and schedule from an evening to a day session. This effectively eliminates working individuals and seasonal residents from being candidates for Councillor or Mayor.
Madam chair, you can see why this has become very contentious and why many citizens in Kearney find this whole line of reasoning offensive. Politics at its worst!
Clearly Arbitrary, unfair and unreasonable actions
I would like to close with the following comments:
- Does the present system deliver fair representation and accountability? In a word, NO.
- In this ward system I do not have the ability to hold 4 of 6 councillors accountable. In fact considering the acclimations, no one is holding those 4 councillors accountable.
- The likelihood of continued acclamations are very high.
- Although not impossible, it is highly unlikely that the majority of ratepayers can ever elect sufficient councillors to change the current system if we are unsuccessful in our appeal. Even if Ward 3 elects the mayor and 2 councillors who all want to change the system, councillors from Ward 1 and 2 will still be the majority. Ask yourself why would they ever want to change the system that keeps them in power? This lack of accountability is inherent in the ward system in Kearney.
- An ‘at large’ system will bring the community together and will allow all the electors to have a say in the election of every Councillor.
- Elections at large should and must be the most appropriate choice FOR DEMOCRACY in Kearney.
Thank you for the listening to our case for change.
I hope this was of interest
Steve Sainsbury
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