Director Noba Anderson’s legal challenge to what she claims is a history of consistently faulty process at SRD has elicited a response from SRD’s counsel. From Roy Hales’ recent coverage of the ongoing litigation:
Last month, the SRD’s lawyer, James H Goulden, filed a response in which he argued, “The Disqualification Petition is not a ‘claim, action or prosecution’ and was brought against Director Anderson in respect of the alleged receipt of gifts that were not in connection with the exercise of her powers or the intended exercise of her powers or, the performance, or intended performance of her duties or functions. The SRD is therefore not required to indemnify Director Anderson for the legal costs incurred.”
The SRD Board also censured Director Anderson for showing confidential documents to her lawyer, while seeking his legal advice.
According to the SRD’s Code of Conduct Bylaw, “information discussed or disclosed at closed meeting or the board” or marked as confidential “must not be disclosed or released to anyone.”
I find these responses quite interesting — actually, “gobsmacking” might be more accurate — and worth considering in more detail.
Attempt to Overturn an Election Result: the Petition
The petition to litigate against Director Anderson, filed shortly after her narrow victory in the 2018 election, expressly accused Anderson of using her position at SRD — namely her influence in recommending organisations and groups for Gaming Grant and/or Grant In Aid funding — to benefit selected individuals on Cortes. The petition alleged that these favoured individuals had donated to a GoFundMe campaign launched on her behalf by a close friend after the fire which destroyed her elderly father’s small cabin.
In other words, the entire content of the petition was an accusation specifically directed at her professional role. Its signatories alleged that she abused her power or influence as a Director on the SRD Board to direct government funding preferentially towards individuals who had given her “gifts” aka bribes (i.e. had donated to the GoFundMe effort).
One of the many duties and functions of a Regional Director is to bring to the table requests for funding from community organisations: so the accusation that Anderson did this preferentially in response to bribery could hardly be more directly aimed at “the exercise of her powers or the intended exercise of her powers or, the performance, or intended performance of her duties or functions.“
So I am quite baffled by SRD’s argument that the petition was somehow “not in connection” with Anderson’s performance, official role, duties, powers, or functions as a Regional Director. The text of the petition was hastily cobbled together, error-riddled, and wholly unsubstantiated; but no matter how inept its execution, the intent was quite clear. Anderson was being accused of not properly fulfilling her job as Regional Director; the petitioners were asking the court to remove her from that office and thus overturn the result of the 2018 election; clearly, had she not been a Regional Director, there would have been no petition.
Yet SRD’s official position is that there is no connection between Anderson’s position as a Director, and the litigation which obliged her to undertake a costly defence. Frankly, I’m baffled.
You’re Not Allowed to Talk to a Lawyer: The Censure Vote
SRD’s second response was to censure Anderson in early 2020 for releasing in camera information. Since no constituent or journalist interested in this case was able to get one word out of Director Anderson about it at the time, it was rather a puzzle to figure out who she was supposed to have leaked information to!
It was only when Anderson’s own litigation against SRD commenced, with the filing of affidavits, that the mystery was solved. It seems that she was censured for consulting her lawyer about procedural issues in in camera meetings which troubled her, as well as legal matters concerning her personally. SRD has not withdrawn or reconsidered this act of censure, so presumably they stand by it.
I am not myself a lawyer, therefore not qualified to say whether this is an illegal use of the censure mechanism — whether it violates any constitutional or charter right to access legal counsel. Perhaps it is technically a legitimate argument. However, it certainly fails the common-sense test.
Let’s suppose for a moment that SRD’s position is legally unassailable, i.e. the secrecy of an in camera meeting does indeed trump all other considerations — including the right to counsel and the principle of lawyer/client confidentiality. If so, then as the old song has it, “anything goes.”
Please note that I am not asserting that any of the following events have actually transpired at any SRD meeting; but I do think we should consider the possibilities opened up by their adherence to such an absolutist stand on in camera privilege. This absolutism very rapidly devolves into absurdity.
Let’s do the thought experiment. Suppose that we are in an in camera meeting at SRD. During discussion of an agenda item at this meeting, one Director utters abusive language towards another, insulting that person on the basis of their race, ethnicity, religion, gender, etc. According to SRD, the abused person would be in the wrong to consult a lawyer about this serious violation of Canadian workplace law: to do so would constitute a “leak” of in camera information. If the rest of the Board choose to ignore or paper over the incident and it cannot be resolved internally, presumably the abused person is supposed to shut up about it; they are not allowed to get advice or help from anyone, even a legal representative.
If they do tell anyone what happened, then official censure will be added to unofficial abuse. Official censure may seem like no big deal, since it involves no civil or criminal penalty; but it can and does involve being relieved of selected duties of office, banned from representing the Board in meetings with other agencies, and required to make a formal apology to the Board and undergo remedial training in whatever point of Board bylaw was breached. In other words: additional humiliation and loss of reputation, on top of the original insult.
I wonder how far SRD would go in maintaining this position. What if an act of sexual assault or gross harassment occurred during an in camera meeting? What if one Director completely lost it and attacked another Director over a hotly contested point, throwing a couple of punches? Would the assaulted person be prohibited from seeking legal redress, from filing charges against their assailant? Would they be censured for reporting to the RCMP? For talking to a lawyer?
In Camera Was Never Meant for This
We can see how slippery the slope becomes, how absurd how quickly, when official policy asserts the absolute secrecy of what in theory should be a public and democratic process. SRD’s vote of censure in this case seems to me a gross exaggeration and deformation of the appropriate use and function of the in camera privilege in parliamentary procedure. In camera was never meant to be omerta.
In camera privilege should not be used to set up a “rights-free zone.” If any person in a position of public service observes practises or procedures which seem to them irregular, unfair, or discriminatory, they must be free to seek legal counsel without fear of retaliation — regardless of the type of meeting in which these events occurred.
It is then the job of legal counsel and the judicial system to maintain appropriate levels of confidentiality in dealing with testimony and evidence. Seeking legal counsel is not equivalent to “going to the media;” any professional lawyer or judge will properly respect and guard documents which legitimately merit in camera protection.
To censure a concerned Board member for seeking advice from a government law expert over the legitimacy of practises and procedures within a government body… it’s absurd. Just about as absurd as insisting that litigation to remove a serving politician from office on charges of bribery and corruption has nothing to do with their position in that office and how they fulfill it.
[DISCLAIMER: the opinions in this editorial are those of the author and are not endorsed by Cortes Currents, CKTZ Cortes Community Radio, or any other organisation or person.]