PERTH COUNTY – For the second time in one meeting, Daria Peregoudova, a litigator with Aird & Berlis LLP who also acts as the integrity commissioner for the County of Perth, was presenting findings regarding complaints against a councillor on Sept. 2, for allegedly contravening the Code of Conduct for members of council.
Peregoudova told council that with this particular complaint against Coun. Daryl Herlick, they are making a recommendation of a reprimand to be imposed by council.
A formal complaint was filed with the integrity commissioner on Feb. 19, alleging that Coun. Herlick of Perth County contravened the Code of Conduct for Members of Council of the Corporation of the County of Perth.
Specifically, the complaint alleged Herlick contravened Sections 5.11 and 8.6 of the Code in his open affiliation with the Liberty Coalition of Canada, specifically the End the Lockdown Caucus, including a photograph taken with other members of the caucus that was published around February. The photo did not demonstrate social distancing or masking precautions despite public health guidelines and a province-wide lockdown in place at the time.
More generally, the complaint stated that Herlick’s actions failed to advance the common good and best interests of Perth County in failing to support its COVID-19 control measures.
While Section 5.11 helps assist with the interpretation and application of the Code, it is a set of “guiding principles” which are not capable of independent enforcement. As such, the integrity commissioner informed the complainant that they would not be assessing the complaint from the perspective of a breach of Section 5.11 in itself.
Based on publicly available social media accounts of the caucus’ founding members, Randy Hillier, MPP for Lanark-Frontenac-Kingston, originally tweeted the photo on Feb. 4, when first announcing the Caucus. Maxime Bernier also tweeted the photograph on Feb. 4, with the caption: “This week, I met with Randy Hillier, Derek Sloan and others to form the Anti-Lockdown Caucus.”
In the absence of evidence to the contrary or a response from Herlick, the integrity commissioner concluded, on a balance of probabilities, that the photograph was taken sometime between Feb. 1 and Feb. 4.
In his responses, Herlick admitted he participated and appears in the photograph.
On Jan. 12, the second state of emergency had been declared under the Emergency Management and Civil Protection Act (EMCA) and a stay-at-home order was in place until Feb. 8.
Subsection 1(1) of the stay-at-home order stated that “every individual shall remain in their place of residence at all times unless leaving their place of residence is necessary for the listed purposes.”
The report stated that following the integrity commissioner’s initial review of the complaint and relevant evidence, they concluded that absent a compelling justification similar to membership in a hate group, the code would not extend to sanctioning Herlick simply on account of his association or affiliation with the Liberty Coalition of Canada or the Caucus, “disagreeable as it may be to some (or many).”
Furthermore, the relevant portion of Section 8.6 as cited in the complaint requires Herlick to represent the public and the interests and well-being of the municipality. While it was acknowledged that his opinion and affiliation with the Caucus is controversial, in reviewing the evidence, the integrity commissioner did not find evidence to suggest that Herlick was not seeking to advance certain legitimate interests of some of the county’s constituents who may believe that lockdowns cause more harm than good, and advocate for the reopening of businesses, schools, places of worship and recreational facilities.
From their review of the evidentiary record, Herlick’s communication concerning his affiliation to the caucus, as well as his acknowledgement of alternative points of view to that of the caucus, including the county’s, were respectful. It was also noted that his decorum at the council meeting, as well as his public comments, appeared respectful and supportive of pandemic-related efforts of Perth County and the position of council as a whole while advancing a position concerning the disproportionate effect on small businesses.
As such, the integrity commissioner used their discretion to summarily dismiss a portion of the complaint and informed the complainant and Herlick of this determination.
Following a review of the complaint according to their standard intake process, Aird & Berlis had reasonable grounds to believe that Herlick may have contravened the provisions and directives under the EMCA concerning the photograph.
Section 223.8 of the Municipal Act, 2001, states that if the integrity commissioner, when conducting an inquiry, determines that there are reasonable grounds to believe that there has been a contravention of any other Act or the Criminal Code, the commissioner shall immediately refer the matter to the appropriate authorities and suspend the inquiry until any resulting police investigation and charges have been finally disposed of.
As such, they referred the matter to the OPP and suspended their investigation. After being advised by the OPP that it would not be proceeding with an investigation or laying charges, the investigation resumed.
Herlick has declined to provide information to the integrity commissioner regarding the date of the photograph, citing the fact that it was not “his photo”, that he “did not know who took it” and that he was choosing not to “engage” as this was a “total invasion of privacy.”
He does not deny that he appeared in the photograph, nor that social distancing and masking protocols were not followed.
It is understood from the councillor’s responses that his participation in the Caucus, including the taking of the photograph, is due to his unwavering and absolute faith in the fact that the lockdowns were harmful to citizens, as it put them in a precarious position of choosing between the survival of their businesses or being onside the law. Herlick was very expressive about his sympathy for individuals who have lost their lives due to COVID-19, and especially those that
died alone with no family beside them due to the lockdowns, including older generations that have “held this county together for decades, paid taxes and know are pushed in a corner to die alone” [sic].
Herlick resigned from the Huron-Perth Public Health Board after joining the Caucus, acknowledging his conflict of interest and speaking directly with Chief Medical Officer of Health, Dr. Miriam Klassen, to advise her of his decision.
“Is not our role to weigh in on whether the councillor’s beliefs have merit, or the value of the councillor’s perspective about the rules put in place under the guidance of local health authorities,” wrote the integrity commissioner in their report. “We have no reason to doubt the integrity of the councillor’s faith, beliefs and positions, but, it is possible that the councillor’s convictions are truthful and valid, while his actions nevertheless still constitute a breach of the Code.”
Section 5.11 of the Code requires that Herlick seek to advance the common good of Perth County and that he exercise care, diligence and skill that a reasonable person would exercise in similar circumstances. However, Section 8.6 mandates that members of council are expected to represent the public and to consider the well-being and interests of the municipality, and carry out the duties of council under the Municipal Act, 2001 or any other Act.
The integrity commissioner also noted that Section 5.2 of the Code dictates that the councillor is responsible for complying with all applicable legislation, bylaws and policies that pertain to his positions as an elected official. While the complaint did not refer to Section 5.2 explicitly, it does refer to a violation of “public health measures”, and, in addition to Section 8.6, which references “any other Act”, Section 5.2 is applicable.
The integrity commissioner accepted that Herlick was seeking to advance the interest of some Perth County residents, which is consistent with the Code.
“We further accept, on the totality of the evidence, that the councillor’s intentions were, for lack of a better word, good as far as the overall interests of the County,” they wrote in the report.
Herlick’s failure to adhere to legislated masking or social-distancing requirements in the photograph was deemed to show a disregard and disrespect for the laws and policies in place at the material time, which the integrity commissioner said does more than advocate for the stopping of lockdowns in the interest of his constituents.
“It also promotes and signals that dispensing with applicable laws and protocols in place is permissible,” they wrote. “If adopted on a large scale, this approach would no doubt cause chaos and confusion at the county at many levels, not to mention create an unnecessary risk of harm to those that choose to follow the councillor’s lead in foregoing masking or social distancing as recommended by health authorities and to the majority of the public who comply with such laws.”
The integrity commissioner recommended a public and formal reprimand by council as a sufficient sanction for Herlick regarding breaches of Sections 8.6 and 5.2 of the Code of Conduct.
It was also recommended that he should also take note that further breaches of the Code, especially ones concerning COVID-19-related public health measures, could lead to recommendations of more serious penalties by the integrity commissioner.
Council had no questions for Peregoudova regarding the report. Herlick was allowed to reply to the recommendation of a reprimand.
“The integrity commissioner did a very fair job here with this investigation,” he said. “I’ve talked with Miriam Klassen a couple of times on the lockdown. I talked to her about this in regards to when I stepped off the health unit. She addressed her concerns deeply with me as well with, you know, childhood, what’s going on there with our children and our youth. We had a good conversation around that. She has great concerns around that too and we have talked… and the conversation didn’t go far but it was a very good conversation. She’s steadfast.”
Warden Jim Aitcheson asked council for questions or comments regarding Coun. Herlick’s comments.
“I can’t support a reprimand because last week the Liberal Party of Ontario had an event in Ontario and they didn’t follow the rules, so if the big boys don’t follow the rules I see no reason to reprimand Coun. Herlick,” said Coun. Hugh McDermid.
The Listowel Banner reached out several times for confirmation of what Liberal event he was referring to and he did not reply.
Aitcheson asked council for their thoughts on Herlick’s reprimand before they voted on the resolution.
“What would a formal reprimand look like?” asked Coun. Walter McKenzie.
Peregoudova said if council voted to adopt the reprimand, it would become part of the formal record of the meeting.
“That’s the extent of the reprimand,” she said. “It would be cited obviously as part of the record in the sense that if there were further complaints made in the future that it’s something that could be referred to.”
McKenzie summarized that the reprimand is a statement.
“It’s not a… financial impact or anything like that with regards to Coun. Herlick,” he said. “It’s just a statement that’s part of this.”
Peregoudova said he was correct.
“We’re recommending a formal reprimand which is effectively council collectively or those that vote in favour of the reprimand, saying formally on the record that they agree to denounce, for lack of a better word, this specific action that led to the finding of the contravention,” she said.
McDermid repeated that he could not support a reprimand. Deputy Warden Rhonda Ehgoetz, who also represents Perth East, along with Herlick and McDermid, also said she would not support a reprimand.
“This country, we’re all supposed to have the freedom of what we want to do and we had people fight for that so I will not support a recommendation to do anything to Coun. Herlick,” she said.
Coun. Todd Kasenberg said he has sympathy for the circumstances that council finds themselves in.
“It’s very difficult, of course, for us to elect to censure in any way a member of our body because of course, we have become a team over the last few years,” he said. “At the same time, I think the integrity commissioner finding here is important. That, in fact, during that period and specifically during that time there was a regulation in place that made it illegal to gather and to be avoiding public health conditions that were in state then. I believe that has been lifted now. Perhaps there are still requirements with regards to masking and physical distancing but generally speaking the gathering prohibition and so forth at that time were considered matters of law, and I’d be interested in hearing the integrity commissioner’s comments about that and perhaps the difference in circumstance between that point in time and today in adjudicating how I will vote on this.”
“We are bound to interpreting the code that we are presented with for this council, for this jurisdiction,” said Peregoudova. “Here we are tasked with interpreting this code of conduct and in this particular situation, the sections that came out through the investigation as, in our opinion, having been contravened are 5.2 and 8.6 which require all council members to comply with all applicable legislation, bylaws, policies that pertain to position as elected officials and under 8.6, carry out their duties under the Municipal Act and any other Act, and in this case as Coun. Kasenberg has pointed out, the Emergency Management and Civil Protection Act did require certain things, not just of council members but of everybody.”
She pointed out that council members are under a special type of microscope being elected officials and setting examples for others, and so in this case the language of the Code of Conduct concerning complying with those laws and legislation is quite clear.
“I hope that everybody will agree that similar to some of the comments that were made today, our report as they always do, attempted to be very balanced and take Coun. Herlick’s comments into account,” she said. “We certainly did and there were other allegations that were made in the complaint where we didn’t make findings. In fact, there were partial summary dismissals that were made. With this particular photograph without masks at a time when things were arguably at one of the heights of COVID, we were in a really bad situation as we remain to some extent. There is very little that can be said to suggest that there wasn’t a contravention. So that is the premise on which our recommendation is made.”
The reprimand passed with a weighted vote of 10-6. Ehgoetz and McDermid and North Perth representative Coun. Doug Kellum did not support reprimanding Herlick.
“At the end of the day it’s archived internet photos… You heard me,” Herlick told the Banner. “The officers talked with me as well. At the end of the day, it’s archived internet photos and we’re in trying times.”
The Banner asked if this “archived internet photo” which just happened to contain all members of the coalition was taken before the stay-at-home order.
“Well hey, that’s my business and I don’t have to give that up and that’s important as Canadians,” said Herlick. “People can’t – you don’t have to disclose stuff if you don’t want to. You don’t have to and we need to hold that up. I stay steadfast. There is a day of judgement for myself, OK and it’s either up or down and I’m going up. These weights and measures are unequal and unfair and I stay steadfast to that.”
Colin Burrowes, Local Journalism Initiative Reporter, Listowel Banner