Editor’s note: This letter is addressed to Dave Taylor, Chief Legal Officer for the Municipality and Council of Chatham-Kent.
John Cryderman engaged me to provide an administrative and constitutional review of the Audit and Risk Committee’s recent decision regarding allegations of fraud in the municipal government and the Chatham-Kent Police Department.
After doing an initial review of the file, I am concerned about a number of issues. However, until I have completed my research and due diligence, I will refrain from making definitive comments.
In the meantime, I would like to address the following statement made in your letter of October 4, 2022: “With this matter reviewed and investigated by multiple parties, we hope that you will not continue to escalate these allegations to the Council, to the police services. Council or administration. We have also warn you against continuing to make these unsubstantiated allegations in any communication.
Like any citizen, Mr. Cryderman enjoys the right to freedom of expression under Article 2(b) of the Canadian Charter of Rights and Freedoms. And, as you are no doubt aware, Canadian and American courts have given extraordinary scope to citizens wishing to criticize the government. In R. v. Zundel, [1992] 2 SCR 731, which is still good law, the Supreme Court of Canada has held that the government cannot regulate expression based on its content, that is, whether it is true or false; thus, the government can regulate the expression only if the form in which it is presented produces a “clear and pressing” danger of causing physical harm.
In this case, Mr. Cryderman stated that he disagrees with the conclusion reached by the Audit and Risk Committee and the process by which that conclusion was reached. It doesn’t matter if CK’s counsel thinks he is right or wrong in his opinions; according to the Supreme Court, he has a fundamental right to express them. This is where the council’s statement, quoted above, is extremely disturbing. It is one thing to say that the Board disagrees with Mr. Cryderman’s opinion; it is quite another to issue a “warning”, which implies the threat of retaliation.
It is a violation of Mr. Cryderman’s right to free speech, and it gives Mr. Cryderman a cause of action against the municipality. I request that counsel and legal services release a letter retracting the statement, apologize to Mr. Cryderman in the letter, and share the letter with anyone who may have been copied from counsel’s October 4 letter.
Beyond this request, I have some preliminary observations around this issue, which are as follows. First, CK could have avoided criticism by allowing public access to the deliberations of the audit and risk committee. In Canada (Minister of Citizenship and Immigration) v. Vavilov (2019), the Supreme Court emphasized the need for “justification, transparency and intelligibility” in administrative decision-making, a position that would apply with even greater force in the context of municipal administration.
Second, based on my review of the record to date, I disagree with CK’s position that Mr. Cryderman’s persistent concerns are “unfounded”.
Third, I have seen an email exchange between Mr. Cryderman and Mr. Arash Wared, legal counsel for Deloitte, dated July 25, in which Mr. Wared states that Deloitte has been engaged to perform an audit, and not a forensic check. This is rather extraordinary, as no conclusion can be drawn regarding the presence or absence of fraud without a forensic audit. I can say this with some confidence, as I spent an entire year working on a commercial fraud case with the founder of the forensic accounting discipline, the late Don Holmes, when I worked at the law firm McMillan Binch.
In closing, I would like to communicate to you that my concerns on this subject are not abstract or simply professional. I grew up in Chatham, and my grandfather, the late Jack Beardall, was the founder and owner of radio station CFCO 630 AM, and my uncle, the late Bramwell Beardall, QC, was a respected lawyer in town, who served as a County Court Judge for 15 years. I return regularly to the city and remain deeply interested in its development in all respects.
Michael Alexander, MA, JD, LLM
Toronto
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