Councillors needed to denounce allegations against Chiarelli, judicial panel told

Members of Ottawa city council are elected officials who are expected to comment publicly on incidents like the allegations made against Rick Chiarelli, and doing so does not make them biased toward the College ward councillor, the city's lawyer told a judicial review panel Tuesday.

Apanel of three Ontario Superior Court justices is reviewing whether city council was biased or had a "closed mind" toward Chiarelli when it approved the recommended sanctions against the councillor lastyear.

Chiarelli's lawyer Bruce Sevigny argued that well before Integrity Commissioner Robert Marleau reported on his findings into the councillor's behaviour toward three job applicants behaviour that was ultimately found to qualify as harassment councillorsshowed they had already made up their minds about the investigation.

• Council's public denunciation 'crossed the line,' Chiarelli's lawyer tells judicial panel
• First of 2 reports finds College ward councillor engaged in 'offensive and disreputable behaviour'

Sevigny pointed to the fact that some council members, including Mayor Jim Watson, called onChiarellito resign. Others said publicly that they believed the women, and at one council meeting, most elected officials refused to sit with Chiarelli as a form of protest.

Councillorsalso took the unprecedented step of refusing Chiarelli's request for an indefinite leave of absence.

All this happened in the fall of 2019, andMarleau'sreport didn't come out until July 2020.

(Marleau issued a second damning report on Chiarelli's behaviour last November, which dealt with complaints from two former staff members. That report is not part of this judicial review.)

The city's external lawyer, Ron Caza, argued council members' actionsdon't prove a closed mind toward Chiarelli, but reflect the natural role played by publicly elected officials.

"The court cannot hold it against an elected official who tells women that are coming forward with allegations that they believe them," Caza told the panel. "And I respectfully submit that, in fact, that is exactly what elected officials need to do."

He argued that when councillors hear about allegations "of gross sexual harassment," they are "there to speak for the people" and to give their opinions.

As for council denying Chiarelli's request forleave in October 2019, Caza pointed out that the councillor became aware of his need for bypass surgery in late November 2019, and then had the operation the following month. Chiarelli also had some post-op complications, but despite these more serious medical concerns, he never requested a leave again.

City lawyer argues council had narrow role

The panel challenged Caza about how councillors could keep an open mind when they had already made such strong statements about Chiarelli in public.

While Caza conceded that municipal politicians do occasionally have to play adjudicative roles, he argued that councillors have a very limited role in theintegrity commissioner's process.

According to the Municipal Act, only an integrity commissioner can decide whether to investigate a complaint, and whether the code of conduct has been violated. Council iscalled on to either approve or reject the recommendations put forward by the integrity commission.

And it's "important to take into consideration the role they will eventually be called upon to to play" when decidingwhether councillors' earlieractions showed bias, saidCaza.

Chiarelli and his lawyer have argued in the past that the complaints against councillorsshould be handled under a process that falls under the Ontario Human rights Code, and not a city's integrity commissioner.

That suggestion by Sevigny was shot down quickly by at least one of the judges.

"I've got two colleagues who might or might not agree and I might be playing devil's advocate, butit cannot be the case that a city councillor is able to engage in gross human rights violations, but can't be subjected to discipline for breaching the municipal code of conduct," said Ontario Superior Court Justice David Corbett.

"I mean, that can't be."

The other two judges on the panel areGeoffrey Morawetz and Robyn Ryan Bell.

3 options if council found biased

It's not clear how long the panel may take to come to a decision given Morawetz indicated there is a backlog at court.

If the panel doesfind council members were biased and grants Chiarelli's request to set aside council's decision, the judges indicated there were three "remedy" options: the panel can deal with the integrity commissioner's report itself; it can return the issue to council with instructions only to consider the matters in the report; or to only allow councillors who did not show bias to deal with the report.

Sevigny said that his preference would be the latter, although there was no discussion on how it would be decided who the neutral councillors were.