The parliamentary system of government that we inherited from England has, since the earliest times, required that the making of laws governing the people shall be open and visible. Our traditions have thus required that all proceedings of Parliament take place in full view of the community. The Charter right of “freedom of thought, belief, opinion and expression, including freedom of the press” inherently protects and fosters such traditions. As Robert Marleau and Camille Montpetit note in the 2000 edition of House of Commons Procedure and Practice:
The will of the House is ascertained by means of a vote. Once debate on a motion has concluded, the Speaker puts the question and the House pronounces itself on the motion. A simple majority of the Members present and voting is required to adopt or defeat a question. … A decision on a motion before the House can be made with no dissenting voices, in which case the motion is adopted and no division is taken. When there are dissenting voices, a vote (or division) is taken. This can be either a voice vote or a recorded vote where the House is called on to divide into the “yeas” and the “nays”.
Parliamentary Standing Orders make only one exception to the requirement for public voting in Parliament. In 1986, Speaker Bosley resigned as the Speaker and 11 ballots were required for the House to elected John Fraser as the new Speaker. As a consequence of the protracted election, the Standing Orders were amended in 1987 to include provision for a secret ballot for the election of the Speaker, and a provision that excludes from a subsequent ballot, candidates receiving five percent or less of the total votes cast.
This requirement of openness has extended into the forms of government below the level of parliament, sometimes reinforced by legislation of superior bodies requiring observance by the inferior bodies of this cardinal principle. In recent times, much has been made of the desirability, even need, of transparency and accountability.
I have always held the view that section 207 of the Education Act, requiring school trustees to conduct their meetings in full view of the public, was designed to ensure public trust in the deliberative process, and to prevent possible abuses such as secret “deal-making”. The exceptions, available only in the case of meetings of committees and only where the matter being considered is limited to one of very few topics expressly identified in the statute, are logical in that they each protect the interest of the Board from premature disclosure where the interest of the Board could be irretrievably prejudiced by any such premature disclosure. I have likewise always considered that this open process extends to the single most essential action of the trustee, the vote upon the relevant matter. In point of fact, all debate is just lead-up, perhaps almost window-dressing, to the vote on a matter. Ultimately, only the vote has significance.
As a consequence, I have consistently advised Boards that are accountable to the public that the taking of the vote must be as public as the debate/deliberations, and that the members of the public have the same right to know how a Trustee votes on a matter as they have a right to know what a Trustee says about the matter. Similarly, when committee proceedings take place in private or in-camera session, all trustees are entitled to know how other Trustees vote on a any matter.
Much of the foregoing was wrapped up in an article I wrote a couple of years ago titled “Open and Closed Meetings”. But recently, a professional colleague made the argument that the Supreme Court of Canada decision in Houde v. Quebec Catholic School Commission permitted secret ballots. That case arose in the context of the Quebec Education Act, the language of which differs from the Ontario legislation. The 5-4 majority of the Court noted:
Public meetings and secret balloting are not incompatible. No authority has been cited which holds that a public body, whose meetings and deliberations are in public, is precluded as a matter of broad policy from voting by secret ballot. Such a proposition runs directly to the broad discretion all public bodies have, absent statutory direction otherwise, to regulate their internal procedures.
In the dissent, Pigeon, J, noted at paragraph 25:
Voting by secret ballot means that the details of the votes are withheld from the publicity required under the Act. An essential feature of the decision is concealed from the taxpayers attending the meeting, namely, the way each commissioner present voted. It seems quite reasonable to me to draw this conclusion from the commission’s obligation to meet in public. Members of Parliament do not vote by secret ballot. Judges of our courts sitting en banc do not take refuge in anonymity, even if their deliberations, like those of a jury, are secret. When the decision is rendered, the individual opinions are declared, and when there is a jury verdict, the litigants are entitled to require that each of the jurors be called to declare his conclusion individually.
In the more recent case of London (City) v. RSJ Holdings Inc., the Supreme Court of Canada noted:
[The] democratic legitimacy of municipal decisions does not spring solely from periodic elections, but also from a decision-making process that is transparent, accessible to the public and mandated by law. When a municipal government improperly acts with secrecy, this undermines the democratic legitimacy of its decision, and such decisions, even when intra vires, are less worthy of deference. Admittedly, the RSJ case was decided in respect of the provisions of the Municipal Act 2001 which expressly provides, subject to named exceptions that all meetings shall be open to the public; and that a meeting shall not be closed to the public during the taking of a vote; and no vote shall be taken by ballot or by any other method of secret voting, and that every vote so taken is of no effect.
The exceptions in this statute generally parallel but are more extensive than the exceptions permitted to school boards in s. 207 of the Education Act. Two specific additional exceptions, paralleling the selection of the Speaker under the Parliamentary Standing Orders, are permitted in the case of an upper-tier municipality which may appoint of the head of council by secret ballot and in the case of a municipality’s procedural by-law which may provide that the presiding officer may be designated by secret ballot.
So where does this leave us, particularly in the light of the views I have expressed?
It remains my view that the democratic obligations of openness and transparency of school board proceedings require votes to be held by means of an open vote where all can observe how a Trustee has voted on a matter – which would exclude the possibility of a secret vote or secret ballot. With due deference to the majority in the Houde case, I find it impossible to accede to the concept that form – a secret ballot – can and should prevail over substance – open and transparent proceedings. In fact, the Court in the RSJ case rightly pointed to how secrecy undermines the democratic legitimacy of a decision.
There are two possible remedies:
either, the Legislature of Ontario could, as it has done in so many prior instances, apply the same principles for school boards as it does for municipalities, and enact provisions parallel to those of the Municipal Act, 2001 already noted; or a board could “take the high road” and make sure that its general operating by-law does not permit votes to be taken by secret ballot, or any other method that hides how Trustees vote on any matter.
Until the legislation requires transparent voting, I will be urging school boards and others publicly accountable entities to “take the high road”.