The fight over a controversial bylaw designed to protect environmentally sensitive areas (ESAs) has left the political arena and entered the courtroom after a Saanich woman asked the Supreme Court of B.C. to intervene.
Council voted 5-4 on Nov. 6 to rescind the Environmental Development Permit Area (EDPA) bylaw, but a judicial review filed by Lynn Husted last week said this motion is “invalid” because Saanich violated her freedom of expression, when Mayor Richard Atwell denied Husted “unreasonably and without justification, her right to speak at the Nov. 6 meeting.”
A judicial review asks the Supreme Court of B.C. to review a decision that an administrative tribunal or administrative decision maker has made.
The judicial review also accuses Saanich of breaching “its duty of procedural fairness” towards Husted when Atwell “unreasonably and without justification” denied Husted her right to speak at the Nov. 6 meeting.
“I want them to rethink rescinding [the EDPA],” said Husted in an interview, when asked about her goals. However, she stressed that this was not her main goal. “My main concern is really an issue with being heard,” she said.
Mayor Richard Atwell said in an interview that Saanich is currently reviewing the legal challenge in putting together a response to the claim that Saanich denied Husted her freedom of speech.
The specific claim centres on Husted’s appearance before council on Nov. 6, when she spoke on behalf of Saanich Action for the Environment (SAFE) to present a submission that asked council to delay its pending decision to solicit meaningful input and await the resolution of a disciplinary citation against Ted Lea dated Oct. 24, 2017. Husted said during the presentation the citation against Lea is public knowledge as per the college and the media and that SAFE is not pre-judging the outcome of the hearing.
This commentary prompted a caution from Atwell, who warned Husted against disclosing personal information.
Following some back-and-forth between Husted and Atwell that also included a point of order from Coun. Fred Haynes, Husted received instructions from Atwell to stop speaking, noting that her presentation had gone off topic, while “trying to drag” Lea’s disciplinary hearing into an inappropriate forum.
“I have read some rules [against disclosing third party information] at the beginning – you ignored those,” said Atwell. “We have had a point of order from a councillor – you have ignored those. I asked you a question [about whether Husted filed the complaint against Lea] – I didn’t get a straight answer on that. Further, we are here tonight to talk about this agenda item, and you have gone so far off the agenda item, I’m now cutting off your time to speak, so we can hear the next speaker.”
The entire incident – including the various exchanges and interjections from the audience – lasted five minutes. Council procedures permits each speaker three minutes.
The filing, however, states Atwell’s decision to cut off Husted and “deny her the right to speak within her allotted speaking time was arbitrary, capricious, and unreasonable.”
Husted said the experience left her intimidated. “I was basically questioned, interrupted and cut-off,” she said.
Atwell said Saanich offers the public lots of opportunities for input through regular council meetings, committee-of-the-whole meetings and town halls, adding Husted’s appearance before council was neither her first nor likely her last. This said, Atwell said it is his job to make sure meetings unfold properly and orderly according to Saanich’s council procedure bylaw.
Saanich, according to the filing, had advertised the October meeting as an opportunity for the public to comment on a report recommending various improvements to the EDPA.
“However, at the Oct. 28 meeting, the [committee-of-the-whole] did more than the advertised purpose of receiving public input into the report,” it read.
It passed a motion to rescind the EDPA, with ratification scheduled for Nov. 6. This timing, however, did not give the public “meaningful opportunity” to prepare, a point Husted made during her presentation.
According to the filing, the disciplinary hearing against Lea bears significance to the fate of the EDPA because the College of Applied Biology of B.C. “had concluded that a discipline panel should conduct a hearing into Mr. Lea’s conduct in relation to the EDPA.”