Ontario Court says Jubenville not guilty of undue influence in flag flap

Heather Wright/The Herald

An Ontario judge says North Kent Councillor Rhonda Jubenville didn’t use undue influence when she voiced her pro-life views and publicly disagreed with a decision of Chatham-Kent council.

In the spring of 2023, Jubenville voiced concern online when Chatham-Kent officials didn’t respond to a request from a pro-life/anti-abortion advocacy group which wanted to fly its flag at the Civic Centre.

She asked council to only permit government flags on municipal property. Council turned the idea down.

After the decision, a complaint was launched against Jubenville citing her remarks online.

The Integrity Commissioner found Jubenville’s comments leading up to the debate and her continued discussion after council turned down her proposal contravened two sections of CK’s Code of Conduct; using her influence of her office for a purpose other than the exercise of her official duties and failing to treat members of the public, councillors and staff in a civilized manner without abuse, bullying and intimidation.

Council agreed with the Integrity Commissioner’s suggestion of a 90 day suspension.

Jubenville did not. She filed a judicial appeal in Ontario Divisional Court. Three Justices reviewed the case in May.

In the decision, released today, The Honourable Justice D.L. Edwards said it is “unreasonable” to say Jubenville used undue influence for “continuing to advocate for a position after council reaches a contrary decision and, further, that it is a breach for a councillor to advocate about issues outside of the purview of Council.”

The Code of Conduct, he says, describes undue influence as gaining “private advantage,” which he concluded Jubenville did not.

Justice Edwards found the Integrity Commissioner concluded “the principle of requiring a high standard of ethical behaviour means that, after a council decision has been made, continued dissent, respectful or otherwise, is conduct that would bring the council into disrepute.”

He calls that “unreasonable” saying if Jubenville had been advocating for something non-controversial, like an infrastructure project or cancer research, it would be clear she wasn’t exercising undue influence.

Justice Edwards adds “Although a councillor has the right to undertake an activity (of advocating for a cause), how he or she does it might run afoul of the dode.”

The justice says councillors have to adhere to a higher standard of ethical behaviour quoting a previous court decision which said “freedom of expression is not an absolute, unfettered right: ‘it is limited by reasonable restrictions, including by requirements to protect the rights and freedoms of other persons’”.

Justice Edward struck down that part of the ruling and the 90-day suspension sending the issue back to Chatham-Kent Council and possibly the Integrity Commissioner to reconsider what punishment she should face in light of the discreditable conduct finding.

The municipality has also been ordered to pay Jubenville’s court costs.