This paper represents the position of the British Columbia Civil Liberties Association (BCCLA) with respect to those provisions of the B.C. Municipal Act, R.S.B.C. 1979, c. 290, that restrict the eligibility of persons who are qualified to vote in municipal elections in this province from seeking and holding elected municipal office.

There is, in our view, a critical difference between a disqualification provision that prevents an individual from seeking office, and one that prevents him or her from holding office, or exercising some of the functions of office, while simultaneously holding another position or having a relationship that would undermine public confidence in the office. The present legislation tends to ignore that distinction, and disqualified individuals from candidacy for municipal office in a surprising number of situations. The BCCLA takes the position that, with one set of exceptions, no attempt should be made to disqualify eligible voters from seeking elected office, and that the Municipal Act should be modified to use disclosure obligations and other techniques, most of which are already in existence, to deal with the problem of conflict of interest.

1. The Municipal Act’s Disqualification Provisions

Section 82 of the Municipal Act provides a series of grounds for disqualification of persons “…from being nominated, being elected and from holding office as a member of the council…” of a municipality in this province (our emphasis). Section 83 of the Act creates a series of exceptions from the disqualification provisions of s. 82, so the full impact of the legislation can be understood only by reading the two sections together. In addition to the general disqualification provisions of ss. 82-83, the Act contains a number of rules disqualifying people from candidacy for municipal office as a result of violations of certain specified provisions of the Municipal Act itself. These rules are found in ss. 112, 119(3), 204, 347, 361, 384 and 393(4) of the Act. ¹

A provision that disqualifies individuals from candidacy from office can be designed to serve two purposes:

1. to eliminate the possibility that individuals with “undesirable” personal characteristics will attain public office; and
2. to prevent the election of individuals who will find themselves in positions of conflict of interest when they are called upon to exercise the powers of office.

We will argue that the first of these is an essentially misguided purpose, and that while the second addresses a legitimate concern, there are more appropriate means of dealing with this problem than the disqualification of candidates.

Section 82 – 83 of the Municipal Act contain elements that are designed to achieve each of these purposes. The provisions serve to eliminate “undesirables” by disqualifying (for a limited period of time) persons convicted of certain types of criminal offences (s. 82(1)(h)), and by prohibiting the candidacy of mentally disordered persons (s. 82(1) (I)) and undischarged bankrupts (s. 82 (1) (j)). Likewise the various specific disqualification sections of the Act perform this function, while also serving as sanctions for what could be considered serious breaches of the Municipal Act itself. These provisions include a two year disqualification period for the commission of certain electoral offences (ss. 112 and 119(3)); a five year disqualification period for participation in the improper commitment or use of municipal funds (ss. 347, 361, 384 and 393(4)).

The goal of eliminating conflicts of interest is served by the elements of ss. 82-83 that prohibit the candidacy of employees and salaried officers of the municipality (s. 82(1) (a)), those who receive remuneration or payment from the municipality (s. 82(1) (b)), those who have contracts with the municipality (s. 82(1) (c)), those who have disputed accounts with the municipality (s. 82(1) (d)), and judges, sheriffs and sheriff’s officers (s. 82(1) (e)). The disqualification provisions in respect of persons receiving remuneration from the municipality or having contract with it are modified in two ways in s.83. Some types of contracts are remuneration do not count for purposes of disqualification under s. 82. As set out in ss. 83(d)-83(m), these include such things are contracts for municipal water and other services that would commonly be held by other inhabitants of the municipality, and remuneration received for service as member of such things as a volunteer fire brigade, an ambulance service or an emergency measures organization. The second type of modification is found in ss. 83(a)-83(c), which provide that persons having certain kinds of contractual relationships with a municipality are not disqualified provided that they do not vote at council or council committee meetings on questions affecting their contractual interests.

2. Evaluation of the Act

Two approaches to the critical evaluation of these provisions are possible. One approach would be to question the acceptability of any provision that sought to restrict the candidacy of individuals for municipal office. This critique would focus on the importance of placing solely in the hands of the electorate the responsibility of choosing who among its members shall hold governmental office, even if the choice the electorate makes is a demonstrably unwise one. The second approach would be to concede that certain restrictions may reasonably be placed, not only on who may hold municipal office, but who may run for municipal office; to articulate a principled set of restrictions on candidacy for municipal office; and to contrast those restrictions with the ones we find in the existing legislation in this province.

The attractions of the second approach are that it highlights the inadequacies of the present patchwork of legislative provisions in this area, and that it presents a program for change to which we might reasonably expect government to respond. Between 1962 and 1975 the provisions which were the predecessors of ss. 82-83 of the Municipal Act were amended now fewer than eight times², yet all of these amendments represented minor modifications seemingly designed to deal with particular problems as they arose rather than any comprehensive effort at reform. It seems reasonable to assume that a proposal for reform that sought to set the legislation on a more rational footing would enjoy a greater chance of success in persuading legislators than a proposal that sought to undermine a central tenet of a piece of legislation that has been in force in British Columbia, in one form or another, since the province’s first Municipal Act was passed in 1881.³

Not withstanding these arguments, we propose to evaluate the present legislation by concentrating on the first critical approach. We will do this for three reasons. First, it is appropriate for an organization such as the BCCLA to seek to address issues at the level of principle as well as at the level of what, as a matter of practical politics, we believe the Association might be able to help bring about in the way of concrete reform. Secondly, we believe that even if the government does not think it is feasible to cease completely the practice of disqualifying people from candidacy for elected office, a principled statement of the objections to this practice may tend to reinforce the case for less sweeping reform. Finally, the recent decision of the Trial Division of the Nova Scotia Supreme Court in Maclean v. A.G. Nova Scotia (unreported decision of Glube, C.J., dated January 5, 1987) lends some support to the prospect of a successful court challenge to elements of the present legislation on principled grounds.

As a general principle, we believe that our society should begin from the assumption that anyone who is entitled to vote in an election in a self-governing society should also be entitled to seek electoral office. This appears to be the message of s. 3 of the Canadian Charter of Rights and Freedoms, which states that:

Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.

A qualification is imposed on the right to vote (one must be a Canadian citizen) but no additional qualification is imposed on the right to run for office. Section 1 of the Charter provides for “reasonable limits” on the rights and freedoms enshrined in it, but these limits must be ones that are “demonstrably justified in a free and democratic society.” Without seeking at this point to advance an argument about the legal significance of the Charter for the question at hand, it does seem to us that it is appropriate to demand a justification for any divergence between the qualifications for voting and the qualifications for seeking office.

a The elimination of “undesirables”

Presumably the justification for eliminating the candidacy of “undesirables” is that they are demonstrably unfit to hold public office, and that it is somehow an insult to the integrity of the electoral process if they are allowed to put themselves forward for election. Even if we concede, for the moment, that the “undesirable” persons disqualified under the Municipal Act are, in fact, unfit to hold public office, what is the consequence for a democracy of taking that decision out of the hands of the voters? It seems to us that there are two consequences of so doing, and that both of them are themselves undesirable. First, we are undermining our responsibility as electors for the way we govern ourselves (and incidentally expressing a disturbing lack of confidence in ourselves as voters), and second, we may be depriving some elements in the community of the opportunity to make what they regard to be an important political statement. Let us elaborate on each of these points in turn.

One would, we expect, be rather surprised to see an intelligent and well-informed electorate selecting for office individuals who are manifestly unfit to hold positions of authority. Sadly, the electorate is all too often neither intelligent nor well-informed, and the election of persons who are clearly unsuited to exercise political power is by no means an unheard of occurrence. Sometimes the electorate is ill-informed through no fault of its own, and we believe there is merit in a requirement that candidates disclose certain kinds of information about themselves before seeking office. Sometimes, however, the problem is not that information has been concealed from the voters but that they are indifferent to the consequences of their failure to take their responsibilities as electors seriously. The question we must consider is whether we should take prophylactic measures to ensure that we are not forced to bear the consequences of at least the most obvious of our failures as electors.

It is certainly true that the BCCLA has supported the development of means by which we, the self-governing citizenry, can be saved from our own tyranny—the Charter being only the most notable among a host of examples of this phenomenon. Should we also support the development of means by which we can be saved from our own apathy or stupidity? On the whole, we think not.

The BCCLA regards freedom of speech and the press as fundamental elements of a democratic society because we believe the citizenry, as the “governing mind” of the society, is entitled to consider and discuss the merits of any ideas that are circulating in it, whether or not those ideas are (from our point of view) ill-conceived or even harmful. This stance is premised on a belief that the way to improve the outcome of our deliberative processes is to educate ourselves to reject harmful ideas of our own volition, rather than to have the state suppress them for us. This process, of course, requires more effort from the “governing mind” to produce the desired results, and its success in producing those results will always be in doubt, but our experience suggests to us that a truly free and just society can only be attained by a “governing mind” that is prepared to make that effort. And this observation ought, we think, to lead us to the conclusion that any legislative device that offers to protect the “governing mind” from the consequences of its own indolence, no matter how well-intentioned the creators of the device, is one that we ought to regard with great suspicion.

To put the argument in other terms, an essential element of the status of adulthood in our society is the obligation to accept responsibility for one’s own actions. Take away that responsibility, and the status of adulthood is subtly undermined. Not only that, but the prospect that an individual will ever behave like a responsible adult is, it seems to us, significantly diminished by the refusal to treat him or her as such. Sometimes we have to accept the idea that our willingness to make people live with the consequences of their own folly can be a measure of our respect for them as responsible individuals. However willing we might be to temper this folly with compassion when the consequences of folly are severe or unforeseen, we think it would be unwise to abandon it in our ordinary daily relations with each other as individuals. If this is the case at the individual level, it seems to us to be equally unwise for us to jettison this principle when we come to the matter of our governance of ourselves as a society. If we are desirous of experiencing fully the joys of responsible self-government, we must be prepared as well to shoulder its burdens, and to face the consequences when we are not up to the task.

In addition to the situations in which the ignorance, sloth or stupidity of the voting public results in the election of “undesirable” individuals, we should also recognize that there are times when the voters are sending us message in casting their ballots for candidates who do not conform to the Municipal Act’s definitions of acceptability. In the United States Presidential election of 1920, 919,799 people case their votes for the Socialist candidate, Eugene V. Debs, who was in prison as a result of his violation of the Sedition Act by protesting American involvement in the First World War. Needless to say, Mr. Debs did not win the election, but a provision similar to the Municipal Act would have stifled the electoral voice of nearly a million people who did not believe that the two mainstream American parties were presenting them with the political options they desired. Likewise the Northern Irish voters who elected as Members of Parliament imprisoned IRA leaders such as Bobby Sands were expressing political views that a democratic society can ill afford to ignore. Closer to home, the re-election of Billy Joe MacLean to a seat in the Nova Scotia Legislature after his conviction on four counts of knowingly using forged documents in respect of money received by him in his capacity as a member of the House of Assembly is widely regarded as an expression by the people of rural Cape Breton of disaffection with a political process that they perceive to be dominated by the concerns of the urban voters of Halifax. The messages that we get from this type of use of the electoral process are seldom comforting ones, but it seems to us that it is preferable that people who are profoundly dissatisfied with society be afforded this opportunity to make their views known, rather than be forced to choose other, more destructive, forms of “political action” with which we have become all too familiar.

As a final point, it should be noted that legislative provisions eliminating the candidacy for electoral office of “undesirable” individuals are of doubtful constitutional validity in light of s. 3 of the Charter. In the MacLean case, supra, the Nova Scotia House of Assembly had passed legislation (the Act Respecting Reasonable Limits for Membership in the House of Assembly, S.N.S., 1986, c. 104) expelling Mr. MacLean, the Conservative Member of the Legislature for Inverness South. The Act also prohibited any person who had been convicted of an indictable offence punishable for a maximum of more than five years from being nominated as a candidate or from being elected as a member of the Legislature for five years from the date of the conviction. The legislation was expressly made retroactive in order to cover Mr. MacLean’s case.

The offence of knowingly using forged documents, to which Mr. MacLean had pleaded guilty, is an indictable offence that carries a maximum penalty of more than five years imprisonment. Mr. MacLean was sentenced to one day imprisonment, deemed served by his appearance in court, plus $6,000 in fines, which were promptly paid. Mr. MacLean challenged by his expulsion from the Legislature and the provision which would have prevented him from running in a by-election to fill the vacancy resulting from his expulsion from the legislature. The court’s decision upheld the Legislature’s expulsion of Mr. MacLean, but struck down the provision of the Act prohibiting him from candidacy in the future.

Chief Justice Glube found that the Act represented a clear infringement of Mr. MacLean’s right as a citizen to be qualified for membership in the Nova Scotia House of Assembly. She then considered the government’s arguments that the Act was a reasonable limit on Mr. MacLean’s rights because it served two legitimate purposes—protection of the public and discipline of members of the Legislature. She decided that the expulsion provisions were justified on the ground that the Legislature had to be able to discipline its members, but she observed that the disqualification provisions went beyond what was necessary for disciplinary purposes. Chief Justice Glube then considered the argument that the disqualification measures were justified as protective legislation. She wrote:

“It is said that the [legislature] should be able to set its own standards and determine what people it does want to have in the House. The content of s. 1 of the Act [the disqualification provisions] affects Mr. MacLean and others [wanting] to run and be elected. It also impinges on the rights of voters to elect a member of their choice by majority vote. Surely the citizens of this provinces should be given credit for having the sense to determine who is a proper member. The voters now know the facts about Mr. MacLean and should he [choose] to run, it should be the voters who decide whether he is the person they want to represent them in the House. The legislation is paternalistic and excessive and under the proportionality test is unnecessary to protect society.”⁽⁴⁾

It is not possible to say conclusively as a result of the MacLean decision that any or all of the B.C. Municipal Act’s restrictions on candidacy for office are unconstitutional.⁽⁵⁾ For one thing, s. 3 of the Charter only speaks directly of the right to be qualified for membership in the House of Commons or a legislative assembly, not for election to municipal office. More importantly, Chief Justice Glube herself accepted that a legislature couldpass valid legislation qualifying membership in the assembly. Without being prepared to speculate on what type of legislation would pass constitutional muster, she did observe three things:

1. the legislation “must not be retroactive;”
2. it “must be reasonable for the stated purpose;” and
3. “that for the stated purpose it may only be necessary to include a few specific offences.”⁽⁶⁾

At this point, we believe that it is preferable to attempt to persuade the government of the desirability of legislative change, rather than to seek a declaration from the courts concerning the constitutional validity of the legislation.

b) The Elimination of Conflict of Interest

Even if it cannot be said with certainty that it is unconstitutional, the elimination of “undesirable” elements from the field of municipal electoral combat seems to be a legislative goal that civil libertarians cannot countenance. The elimination of conflict of interest in government, however, presents us with a different set of considerations. We do have a legitimate expectation that governmental authority will be exercised in an even-handed manner, and that public confidence in the fairness of the governmental process will be maintained. Where we believe that governmental decisions are taken in order to benefit private individuals rather than in order to serve the public interest, it is right that we should complain. It seems to follow, therefore, that reasonable measures designed to prevent the occurrence of conflicts of interest serve a purpose that civil libertarians ought to be prepared to support. The question at this level is whether the means that the Municipal Act uses to accomplish this worthwhile objective are acceptable.

In assessing this question, it is useful to make two observations about conflict of interest or bias in the judicial or quasi-judicial context. The first is that we do not expect judges or administrators to approach their work without regard to the experience, beliefs and prior associations. We expect them to be fair-minded, and there are indeed situations in which their beliefs of prior associations call into question our confidence in their ability to be seen as objective decision-makers, but we are rightly reluctant to assume that responsible men and women are incapable of separating their private views from their duties as public officials.⁷ The second point is that conflict of interest does not generally prevent individuals from holding judicial or administrative office, but only from participating in particular decisions where a reasonable apprehension of bias is perceived. There will, of course, be situations in which the simultaneous holding of judicial office and performance of other public functions (for example acting as a Crown prosecutor) would be wholly incompatible. As a general matter, however, we prefer to apply our conflict of interest principles in the manner that is least restrictive of the ability of individuals to hold office, and of our ability as a society to take advantage of their talents in public life.

These observations having been made about conflict of interest in the judicial and quasi-judicial area, we should also recognize that we do not expect mayors and municipal councillors to be neutral in the same way that we expect this of judges. It is the essence of political office that its holders be political partisans, and conflict of interest rules that curtail the ability of large segments of the population to participate in the political process as elected representatives defeat rather than enhance the goals of democratic government.

Three points follow, in our view, from these statements.

First, we should not disqualify people from seeking or holding municipal office on conflict of interest grounds where the community’s interest in the integrity of the governmental process can be protected by appropriate disclosure rules couple with a requirement that individuals do not participate in council decisions in which they have a conflict of interest.

Second, we should not disqualify people from seeking or holding municipal office simply because they are prominently identified with an individual or group of people who have strong views on, or even financial interests in, municipal affairs. It is hard for us to see why people who are identified as the supporters of developers or city workers who have a financial stake in municipal politics should be ousted from participation as elected municipal officials, while the partisans of peace groups (or even civil liberties organizations) are free to promote their causes from the seats of municipal government (if they can manage to get themselves elected). Things are different if municipal favours are being bought and sold, and doubtless the line between the advancement of a policy that an elected official genuinely believes to be in the community interest and the doling out of favours to friends and cronies in anticipation of future benefit to the official himself or herself is sometimes a fine one. Nevertheless, the remedy here seems to be the more active participation of the citizenry in municipal affairs, or criminal sanctions for those caught selling favours, and not the legislative elimination of potential offenders from the ranks of those eligible for election.

The third point is that, generally speaking, where the holding of municipal office is incompatible with the simultaneous performance by an individual of other public obligations, that individual should not be prevented from running for office, but only from holding office until such time as the conflict is resolved.

The third point is the most controversial, in our opinion, and needs further elaboration. Generally speaking, people are not obliged to give up their jobs in order to run for public office. If they are successful in their electoral efforts they may find that pressures of time or the conflicts of interest arising out of their public commitments prevent them from continuing in their previous job, but usually they do not have to give up the security of their job if the campaign turns out, as many are, to be unsuccessful. The Municipal Act removes that luxury for certain classes of people, notably judges, sheriffs and sheriff’s officers (s. 82(1) (e)) and, more importantly, employees and salaried officers of the municipality (s. 82(1) (a)). These two groups present special problems in the area of conflict of interest.

In 1986 the Ontario Law Reform Commission released its Report on Political Activity, Public Comment and Disclosure by Public Employees. The Reportwas designed as a detailed study of the political participation rights that ought to be available to provincial public servants, but its recommendations are very useful for our purposes. The Commission recommended that, as a general matter, public servants who wished to run for federal or provincial office should be entitled to do so provided that they took an unpaid leave of absence in order to do so. If the employee was not elected, he or she would be entitled to return to work without incident. If the employee was elected, he or she would normally be given a leave of absence for up to five years to serve as an elected representative. The Commission also recommended, however, that there be a restricted category of public servants who would be prohibited from seeking elected office unless they first resigned from public employment. This category would include:

1. persons employed in line management positions in the public service, from the level of branch director up to deputy minister;
2. persons directly involved in the administration of justice in such a way as to directly affect the rights of citizens;
3. persons involved directly in the formulation of government policy;
4. persons employed in positions confidential to the senior officers of government; and
5. persons whose primary job function is to act in a public representative capacity as official spokespersons who ought to be perceived publicly as politically neutral.⁸

It seems to us that the Report draws a sensible line of distinction between public servants whose ability to function effectively in their jobs would in no way be impaired if they were entitled to exercise the normal right of citizens to seek elected office and those public servants whose work demands a public perception of complete political neutrality or the complete private confidence of elected officials.

At present, the B.C. Municipal Act draws that distinction in a highly unsatisfactory manner. We would agree that the importance of preserving the independence of the judicial process makes it necessary that judges and others involved directly in the administration of justice and the adjudication of the rights of others should not be entitled to participate in electoral politics. We would therefore support the continued existence of a provision such as s. 82(1) (e) of the Municipal Act. With respect to the exclusion of all employees of salaried officers of municipalities from candidacy (s. 82(1) (a)), however, we think that the Act casts its net far too wide. In line with the Ontario Law Reform Commission’s recommendations, we believe that the only municipal employees who need to be excluded from participating as candidates in a municipal election are those who hold senior management positions, those holding policy positions in which the council would need to have confidence in the political independence of the advice being given, and those persons more generally occupying positions of trust with respect to elected officials (the mayor’s secretary, for example).

We are sympathetic to some degree of concern about the ability of municipal employees to perform their jobs adequately while they are running for election to municipal office. This concern can be assuaged relatively easily, however, by requiring municipal employees to take an unpaid leave of absence during the campaign period if their campaign activities would interfere with their work. We also recognize the legitimacy of concerns that a municipal employee who was elected to municipal office constantly would find himself or herself in a position of conflict of interest. We believe that it is legitimate to require municipal employees who have been elected to office to resign from their municipal jobs, though we think it would be preferable for such employees to be allowed instead to take an unpaid leave of absence from their work for a limited period of time (for example, a period of two years which would be the length of a normal term of office).

It is worth noting that at the level of the provincial public service in British Columbia, a regime allowing for the political candidacy of most public servants (and very similar to the provisions we are proposing for the candidacy of municipal employees) is already in place. Most provincial government employees are covered by a collective agreement between the province and the British Columbia Government Employees Union (BCGEU). This agreement stipulates that if an employee is nominated as a candidate for federal or provincial office, he or she must be granted a leave of absence without pay for a maximum period of 90 days in order to campaign. The employee is not required to take a leave of absence—the government is simply obliged to grant a leave of absence if it is requested. If not elected, the employee is allowed to return to his or her former position. If elected, the employee is entitled to a leave of absence without pay for a maximum of five years while holding elected office. Similar arrangements are made for other unionized employees who are not covered by the BCGEU agreement.⁹ There is, however, a group of management and other employees who are not members of any bargaining unit. The political participation rights of these individuals are governed by B.C. Regulation 508/79, entitled Terms and Conditions of Employment for Excluded Employees. Pursuant to s. 10(1) of the Regulation, these employees “must obtain written approval from the Public Service Commission before seeking nomination to a public office to ensure that there is no conflict of interest between the employee’s duties as a public servant and the office to which he seeks nomination.” If the Public Service Commission decides that there is no such conflict of interest, it may direct that the employee be given a leave of absence without pay for up to 90 days in order to allow him or her to seek nomination or election to office,¹⁰ and any employee who is elected is entitled to a leave of absence without pay during his or her term of office, up to a maximum of five years.¹¹

Recommendations

In light of the foregoing, the BCCLA adopts the following position with respect to the Municipal Act’s restrictions on the eligibility of qualified voters to seek municipal office in this province:

1. With the exception of a limited class or municipal employees and others whose public obligations are completely incompatible with the seeking of elected municipal office, no restrictions should be placed on the candidacy for municipal office of anyone qualified to vote in a municipal election.
2. Sections 82, 83, 112, 119(3), 204, 347, 361, 384 and 393(4) of the Municipal Actshould be repealed and replaced by provisions that
   1. require public disclosure by candidates of relevant information; and
   2. restrict individuals from participating in decisions (and in some instances from holding office) in situations where their doing so would result in a conflict of interest.

It is our view that it would be legitimate for candidates to be required to make disclosure of the fact that they fall into any of the categories now listed in ss. 82(1) (a)-(e) and (h)-(j), although we would suggest that matters falling under ss. 83(d)-(m) need not be listed. This would mean that candidates would have to disclose financial interests that might result in conflicts of interest, and some information about their criminal record, mental health and financial solvency. It is not clear to us that the legislature should necessarily require the disclosure of this type of information as opposed to any other type of information. We do, however, believe that some level of disclosure is desirable, and ss. 82-83 appear to reflect the legislature’s perception of matters that are of importance to the municipal electors. We do not believe, therefore, that it would be objectionable for the legislature to require disclosure of that information.

To the extent that ss. 112, 119(3), 204, 347, 361, 383 and 393(4) result in disqualification from future candidacy for office, it seems to us that they are unnecessary and excessive. This is not to say, however, that the offences for which these sanctions have been imposed are not serious or that penalties including expulsion from municipal office presently held would be inappropriate. It may be desirable that candidates be required to make disclosure of any convictions for the offences referred to in these sections, though one would expect that such convictions would be a matter of public record. It should be up to the electorate, however, to decide whether or not such offenders should be returned to public office.

Finally, it seems proper to us to restrict the candidacy for municipal office of judges and others involved directly in the administration of justice and the adjudication of the rights of others, and of municipal employees who hold senior management positions, or policy positions in which the council would need to have confidence in the political independence of the advice being given, or who occupy positions of trust with respect to elected officials. Other municipal employees should be allowed to seek municipal office provided that they take an unpaid leave of absence during the election campaign if their campaign activities would interfere with the proper performance of their work. We believe that municipal employees legitimately can be prevented from actually holding elected office while they continue to be employed by the municipality, but we would prefer to see a provision which enabled a municipal employee to take an unpaid absence for up to two years while holding municipal office. Persons who fall within ss. 82(1)(b)-(c) of the present Municipal Act should not be prevented from holding office, but they should be prevented from voting on matters that affect such interests except to the extent that they fall within the exceptions provided in ss. 83(d)-(m).

Endnotes

1. The full text of these provisions was appended to the original brief as Appendix A. It is worth observing that the Vancouver Charter, R.S.B.C. 1979, c. 55, contains in ss. 38—39, general disqualification provisions analogous (though not identical) to those contains in ss. 82—83 of the Municipal Act. The text of those provisions was appended to the original brief as Appendix B. To the best of our knowledge, no analog to the specific disqualification provisions of ss. 112, 119(3) etc. of the Municipal Act can be found in the Vancouver Charter. We will not make any specific reference to the Vancouver provisions in this paper, but for the most part our observations are equally applicable to them. We cannot help but note, however, that whereas “mentally disordered” persons are disqualified from running for municipal office in such places as Abbotsford and Kamloops (s. 82(1) (I) of the Municipal Act), no such impediment stands in the way of those who seek a place on the Vancouver City Council. We are not sure if this is a legislative affirmation that only the Vancouver electorate is sufficiently wise and responsible that it can be trusted to decide for itself whether or not to choose mentally disordered persons to hold public office. Perhaps it is simply an expression of concern that if the mentally disordered were prevented from seeking office in Vancouver, the City might be unable to put forward a sufficient number of candidates!

2. See S.B.C. 1962, c. 41, ss. 3-4; S.B.C. 1964, c. 33, s. 7; S.B.C. 1967, c. 28, s. 9; S.B.C. 1968, c. 33, ss. 21-22; S.B.C. 1970, c. 29, s. 8; S.B.C. 1971, c. 38, s. 9; S.B.C. 1973, c. 133, s. 11; and S.B.C. 1975, c. 47, s. 4.

3. See Municipal Act, R.S.B.C. 188, c. 88, s. 24. In fact, disqualification from candidacy for municipal office are found in the first charter given to a city in the colony of British Columbia, the New Westminster Municipal Act of 1860, R.S.B.C. 1871, c. 31, s. 5. That Act disqualified, among others, ministers of any religious denomination, bankrupts, insolvent debtors, outlaws, persons convicted of any felony, and persons having directly or indirectly any contract with the Municipal Council.

4. Reasons for judgment at pp. 19-20.

5. See Diebolt J.’s decision (unreported) in the McKitka v. A.G. of B.C. (1986) for a contrary view about the applicability of the Charter to municipal candidacy matters.

6. Reasons for judgment at p. 21.

7. See Re Marques and Dylex (1977) 81 D.L.R. (3d) 544 (Ont. Div. Ct.); R. v. Pickersgill ex p. Smith (1970) 14 D.L.R. (3d) 717 (Man. Q.B.).

8. See Ontario Law Reform Commission, Report on Political Activity, Public Comment and Disclosure by Crown Employees (1986) at pp. 271-86 and 360-63 (Recommendations 5-14).

9. See Ontario Law Reform Commission, Report on Political Activity (supra note 8) at pp. 137-38.

10. B.C. Regulation 508/79, s. 19(2).

11. B.C. Regulation 508/79, s. 10(4). See Ontario Law Reform Commission, Report on Political Activity (supra note 8) at pp. 139-40.