The freedom to use recording devices at city meetings without prior permission is coming to an end with an amendment to a City of Nanaimo council procedures bylaw.
At a council meeting Monday, Feb. 24, staff reported on recommended amendments to the council procedures bylaw and respectful spaces bylaw that deal with use of electronic devices, signage and behavioural standards in city council and committee meetings.
The respectful spaces bylaw, adopted by council last July, is meant to prevent behaviour that disrupts municipal operations and processes or compromises the safety of city staff, volunteers, council members and the public. The use of electronic recording devices in meeting falls under council procedures bylaw provisions.
The bylaw amendments were put forward by the city solicitor and address inappropriate behaviour during council and committee meetings, establish rules around signs brought into the council gallery and use of electronic devices.
“While the respectful spaces bylaw does cover public conduct in municipal facilities, there are additional limits imposed under the Canadian Charter of Rights and Freedoms when it comes to conduct in council and committee meetings,” said Karen Robertson, deputy corporate office, who authored the report. “Therefore, clarity was needed as to what constitutes appropriate behaviour in those meetings, particularly when it comes to electronic recording devices and offensive signage, given some of the recent incidents in past council meetings.”
Robertson noted the city's obligation to ensure a safe work environment, free of intimidation and harassment, for staff, in all facilities and council meetings and cited privacy issues around videos and photos of council, staff and the public that have been taken and posted online without approval or consent. Nanaimo’s electronic device restrictions, she said, are based on practices by the courts and other governments, but also provide for exceptions, such as permission to photograph awards presentations. She noted that members of the public and media can still attend meetings in person, watch live-streams and access recordings afterward. Official meeting records, including agendas and minutes, are also available on the city website.
“Because the meetings are televised and recorded, prohibiting electronic devices would not cause undue hardship,” Robertson said.
Because Canadian courts have determined a person has rights over their own image, the city must also ensure privacy rights aren't violated.
“For example, when council meetings are recorded, council and staff have consented to have their image posted on the city’s website for that purpose – I know how my image is being used when presenting this report,” Robertson said. “It is different if someone is taking a recording of me, zooming in and posting it to a different social media site. In that case I’ve not consented to my image being used in that way and therefore it’s a violation of my privacy rights. This goes for council staff and members of the public attending a council meeting.”
Coun. Hilary Eastmure questioned if the council chamber wasn't considered a public place and banning electronic devices didn’t therefore violate charter rights.
Sara Dubinsky, city solicitor, replied that “public space exists on a spectrum” and said a shopping mall might be considered a public space by shoppers, but that the owner of the mall has the right to remove people from that space.
Eastmure, a former journalist, said in her understanding, there was nothing illegal about taking photos or video in a public place.
“You can’t be a nuisance. You can’t damage property. You can’t obstruct police and you can’t use that material to defame people, but you have a charter right to take photos and record video and this is protected under freedom of expression in Section 2B of the charter,” Eastmure said. “Because photography and videography are inherently expressive activities … this especially extends to journalists’ right to do their job and I know that we’re not looking to prohibit that, but we are looking at another layer for them to need permission to do that and, as well, for members of the public.”
Dubinski cited a Supreme Court of Canada ruling from 1998 upholding an individual’s right to privacy and to control their own image.
“So taking of their photograph without their consent and subsequently publishing it, even for an artistic purpose, was held to be a violation of their privacy rights,” she said. “So, in the context of that balancing in that circumstance, certainly there’s authority for the privacy right outweighing what otherwise would be the right to expression and the right to artistic expression.”
Coun. Sheryl Armstrong, a former RCMP sergeant, said from police and criminal code perspectives, council chambers would be deemed a public place and agreed with Eastmure that the amendment represented a breach of the Canadian Charter of Rights and Freedoms.
“This, to me, is a room where the public has been invited to listen and to watch,” Armstrong said, adding that she believes the bylaw amendments put the city on "shaky ground" legally.
Sheila Gurrie, the city's director of legislative services, reiterated why the city needs to have a bylaw that deals with unauthorized recordings and their use.
“[If] we’re getting recorded or having our photographs used for intimidation purposes … right now we don’t have parameters around that or the ability to stop that," she said. "This is looking for those abilities should we need them.”
Eastmure wondered if that couldn't be done without “having a blanket ban on electronic devices in this public space” and put forward a motion to have electronic devices removed from the bylaw amendment to be dealt with separately.
Her motion was defeated with only Eastmure and Armstrong voting in favour.
In an e-mail to the News Bulletin, Robertson said the amendment does not intend to ban electronic devices.
"I do wish to clarify that media, and even members of the public, are not outright banned from taking photos or recording," she said. "Provisions to exempt media within that clause were considered; however, ensuring that those members of the media are accredited becomes challenging to enforce. We will no doubt have those that claim they are an independent journalist. Instead, the wording 'unless expressly authorized by the chair' was added so that, on a permission basis, media can be given the opportunity to photograph or record for special events, award ceremonies, etc."
Photographing or recording city staff in parks, facilities and elsewhere in the community, is also restricted, but will be permitted in instances when those individuals give their consent.
Robertson noted the media and public also have access to the official records on the city’s website, which includes the full agenda, minutes, and the council voting record through this link: https://www.nanaimo.ca/your-government/city-council/council-meetings/council-meeting-dashboard.
During the three readings of the bylaws, councillors in favour voiced their reasons for their positions. Coun. Paul Manly cited practices by the House of Commons, provincial legislatures and court houses, which are all public spaces that prohibit use of electronic recording devices unless authorized.
"That is completely within the constitutional right of those bodies to prohibit the use of electronic recording devices in those spaces and we are completely within our right to do that here," Manly said. "It's unfortunate that people have taken their constitutional rights and abused them in ways that are kind of abhorrent."
The bylaw amendments passed three readings with Eastmure and Armstrong opposed.
