Shortly after Remembrance Day we find ourselves pondering the price of freedom — of democracy.
What’s it worth?
In conversation, especially around November 11, most of us would probably say it’s priceless.
But that’s nonsense. Most people’s answer will change when faced with a bill.
So, really, what’s it worth?
Whitehorse’s politicians peg the value at something less than $14,000.
That’s what it costs the city to hold a referendum.
And, despite assertions to the contrary, the city’s politicians don’t like referendums.
Referendums transfer a little bit of power to the citizens from council.
That can mess with council’s decisions.
And, because of that, referendums are a nuisance.
Take McLean Lake.
City politicians have rezoned the area to allow a concrete batch plant.
However, most citizens in the area oppose that project. They want the lake and a buffer of lands around it preserved as a recreation area.
And, to do that, Marianne Darragh turned to a tool in the Yukon Municipal Act.
She proposed a petition to city officials in February.
It was double-barreled.
It asked citizens if the city should amend the Official Community Plan to create a McLean Lake park. Second, it asked whether the zoning bylaw should be amended to create a park zone around the lake. That’s how the OCP works, it has to be amended and then rezoned.
In response, the city played silly bugger.
Its director of administrative services subjected the petition to a legal review. There is no provision for such a legal review. The city is just supposed to confirm receipt of the petition.
So Darragh was forced to hire a lawyer.
The lawyer confirmed that no legal review was called for in the municipal act.
Darragh announced she would collect names.
Four days after she began, on March 18, the city e-mailed Darragh telling her to stop her efforts until the city determined whether the petition was valid.
Then, two days later, city staff issued a news release suggesting the referendum petition might be invalid.
It continued its media campaign on April 2, announcing the petition questions were invalid.
Nevertheless, Darragh persevered.
Despite the city’s aggressive public campaign, she spent at least 160 hours collecting signatures. And, in the end, gathered 2,654 signatures — 25 per cent more than required.
It’s a good thing she did.
The petition questions were not invalid, according to the Supreme Court of Yukon.
In court, the city employed the I’ve got to get my hair done “defence.”
It gets really complicated — balled up in a tangle of first readings, second readings, 90-day review periods and ad-booking nonsense — but, essentially the city argued Darragh’s petition was simply impossible.
The proposed OCP amendment could not work within with the city’s scheduling deadlines. So, too bad for her.
Justice Ron Veale disagreed.
Laws are meant to work together as a functioning whole — like clockwork.
The parts are intended to work together dynamically, each contributing to the intended goal, said Veale, citing a legal principle known as coherence.
There is a presumption against internal conflict.
The body of legislation cannot contain contradictions or inconsistencies — each part must work without conflicting with any other.
That is, laws are supposed to work like a working clock, not a broken one.
Also, citizens must be able to amend the Official Community Plan in order to tweak the city’s zoning bylaws, said Veale.
If an Official Community Plan amendment cannot be petitioned for, a citizen cannot amend any consequential bylaws by referendum either, he added.
If the city’s argument was allowed, a citizen would have to follow the Official Community Plan amending procedure successfully before launching a bylaw referendum.
And that would allow the city to control the Official Community Plan amending process, he said in his 19-page ruling.
That is not reasonable.
So he ruled against the city, told it how it should accommodate any scheduling conflicts and essentially cleared the petition to proceed.
The referendum provisions are designed to foster greater participation in a modern local democracy, noted Veale.
It takes considerable time and effort to gather enough signatures to provoke a referendum, he added.
Whether a referendum proceeds is a decision taken by 2,000 electors, he said.
Council’s right is to seek a court order to block it.
The city can object to a bylaw, but it cannot stop a petitioner without going to the court, said Veale.
In this case, the city tried to stop the process through lawyers and a PR campaign.
There was considerable confrontation between city officials and Darragh.
That may be the byproduct of a robust democracy, said Veale.
On the other hand, a citizen who is required to hire a lawyer to proceed with a petition that the city describes in a news release as “found invalid” may feel the city has crossed the line between protecting taxpayers from the cost of a referendum and attempting to frustrate their right to participate in democracy, he wrote.
If it feels it’s invalid, the city should go to court rather than wage a war by press release to frustrate the statutory right of its citizens.
The releases were arguably calculated to dissuade Darragh from proceeding and citizens from signing the petition.
It’s clear that Veale found this disturbing — he awarded Darragh legal costs.
But all citizens should find the city’s tactics disturbing.
The city should not be allowed to use its considerable financial and legal resources to subvert public participation in municipal affairs.
That’s what it did in this case.
And that abuse of power should worry us all.
So, what’s the cost of democracy?
Darragh was willing to donate 160 hours of her time to gather signatures and hired lawyers to defend her rights, and those of other citizens.
Council pegs it at less than $14,000 — the cost of a referendum.
But that’s only part of the story.
The city fought the petition with lawyers and misleading or erroneous (intentionally or otherwise) news releases — and, in the end, forced a citizen to go to court.
So, while the city pins the value of democracy at less than $14,000, its current crop of politicians will, apparently, pay a lot more to fight it.
In light of that, we should all ask, why?