Dear Mayor and Councillors:
Running for public office takes courage. The public scrutiny and the responsibilities are considerable. Decisions must be made. Solutions found. Questions answered. Criticisms endured. Elections contested.
Still it is the body of citizens and residents, ever present, if, regrettably, often only in the wings, who must assert themselves and work to influence and even answer for the choices of their representatives. Not only by stepping forward to vote and run for office, but also when they step forward and take a stand on the issues of the day - publicly, in the town square, at city hall, and at the court house. These are the places where crucial decisions are articulated and made and citizens, ordinary and extraordinary must be welcomed there. Particularly, as here, where the controversies that have been at issue - whether to proceed with gambling, whether the planning act consultation process was fair, and now the costs issue - are issues that have touched the community so deeply.
Together, ordinary and extraordinary people elect, lobby, and berate governments in the shadow of the rules that govern how decisions are made. And while elected representatives must come to terms with and sign off on the decisive details in regards to one controversy or another, democracy requires, nay, depends on the people participating at every step of the way.
In this sense, just as leadership is both a trial and a contest, so too, the decision making rules are also open to trials and contests. Rules about how elections are decided, rules about how meetings are held, rules about how decisions are legitimated. These are the rules about decision making and they are both the landmarks of fairness and the means by which we learn to live with the worst system of government but for all the rest - the democratic system. And from time to time, it is these rules and how they are used which also becomes the subject of legitimate and vigorous debate; in the town square, at city hall, and before judges in court; by lawyers and politicians, but also by ordinary members of the community.
Unnecessary impediments to such community participation are impediments to a healthy democracy. Imposing costs against private individuals of modest means who initiate litigation that it is in the public interest for the courts to address is just such an impediment. Accordingly, the CCLA urges this elected body to forgo taking costs from those residents and leaders who participated vigorously and in good faith in testing not only the wisdom of changes to their community but also took seriously the public interest in the rules about rule making - in this case, the consultation rules under the Ontario Planning Act.
From the time raceway slots proposal was announced, the contest was vigorous. Questions ranging from morality to road way allowances were at issue. A coalition of opponents, unhappy with both the decision and the decision making process contemporaneously challenged the nuts and bolts of the plan before the Ontario Municipal Board (OMB) while arguing in court that community consultations had fallen short of the requirements of the Planning Act. Significantly, in its decision, the OMB said that it was "ill equipped by jurisdiction, inclination or wisdom, to be any kind of arbiter of moral imperatives. As much as the Board has a broad jurisdiction, such things are left to legislatures and courts." Which are, of course, just the kinds of places the coalition also went.
Indeed, however much of that court challenge was rooted in the gambling controversy, it had an entirely different character - it has all the appearance of a reasonable dispute about a matter of significant public interest - the adequacy of the decision making process, the adequacy of public consultations; matters that had not then been clarified by the courts.
Reduced to a score sheet, the citizens coalition lost at each step. But in the opinion of the CCLA, ordinary citizens who litigate public interest matters in good faith ought not be discouraged by having to pay the costs of the winning side especially when that side is their government and the issue raised contains a reasonable question about decision making processes. In a democracy, such contributions are more than vital, they are inherently necessary and ought not be needlessly discouraged. Indeed, after all the dust has settled, such "losses" can actually help legitimate the controversial decisions at issue - they can tell us that decisions were arrived at by way of a legitimate process.
It is already hard enough for most ordinary people to afford to get to court. Moreover, there are other fair ways to avoid and discourage redundant or malicious lawyering. Short of dishonorable or reckless conduct we ought not to discourage such participation by whacking ordinary citizens and taking them for costs. It s the principled thing to do, it s the right thing to do, and no reasonable ratepayer will hold such wisdom in contempt. Nor will the courts. It is your decision to make. The judges and the lawyers are done with it.
You should also know that, in recent years, while there have been some glaring exceptions (notably in the case at hand), a general trend towards costs not being ordered in public interest cases is emerging in this province. In any case, it is the opinion of the Canadian Civil Liberties Association that the Court of Appeal acted hastily and got it wrong in this case. Indeed, I have been told that they made their costs order without hearing or even inviting argument on the subject. Regardless, you are in a much better position. Indeed, the Council has an unusual opportunity to get out in front of the Supreme Court of Canada which, in a upcoming case , will be called on to set out a clear, sensitive, and national rule on costs in public interest cases. (The case of The Estate of Manish Odhavji,e al v. Detective Martin Woodhouse, et al, is scheduled to be heard by the Supreme Court on Oct 3rd, 2002).
While a wise judiciary is often a "fairness" champion, a democracy is at its best when ordinary and extraordinary citizens decide themselves through an open system of representative government.
Leaders must often set themselves against a storm of protest. But at other times, they must bend. On occasion, wisdom even requires that you reverse yourselves. Courts have a hard time reversing. Some say that some politicians do this too readily, but wisdom and character must be the judge. Reverse course. Stand on broad principle. At the end of the day, the money will effectively remain in the community and everyone will be better able to get on with the vital business of living in a healthy democracy.
Sincerely,Stephen McCammon
Associate Counsel
Canadian Civil Liberties Association
394 Bloor St. West
Toronto, On M5S 1X4
416 - 363 - 0321