abstentions.html.pm

#lang pollen

◊define-meta[page-title]{Abstentions at Vancouver City Council: Follow-up}
◊define-meta[short-title]{Abstentions}
◊define-meta[featured-image-url]{assets/Vancouver-by-law-32-s-16.png}
◊define-meta[original-date]{2021-07-23}
◊define-meta[edited-date]{2021-08-10}
◊define-meta[snippet]{A correction, and some additional details about abstentions, history, and context.}

In this blog post, I share some additional details about the
abstentions I mention in [my op-ed that appeared in the Vancouver Sun
on July 21,
2021](https://vancouversun.com/opinion/sancho-mccann-when-a-vancouver-city-councillor-abstains-it-is-a-vote-in-favour). In
that piece, I argued that "[s]ince an abstention is a vote in favour,
when a councillor cannot in good conscience vote in favour of a
motion, they should vote in opposition."

I also said that "I identified 14 motions heard by this council that
would not have passed had the abstentions not counted in favour."

This post provides a slight correction (◊b{there were only thirteen,
not fourteen}) and shows you the specific motions and their
effects. They span the gamut from very minor wording changes, to
substantive amendments to motions, giving directions to staff on a
variety of matters, and waiving presentations from staff.

Many of the motions in which an abstention made a difference to the
vote were motions to amend a higher-level motion. The wording of the
amendment often (but not always) ended up in the ultimate motion that
was carried.

To be clear, the argument in my op-ed would be unchanged even if I
discovered no motions in which an abstention tipped the scales. But it
is interesting to see the motions where abstentions made a difference
to the vote. I also hope this might familiarize people with the Open
Data Portal and Council minutes.

◊heading{Correction}

First though: the correction. The [Open Data Portal reported that vote
4072](https://opendata.vancouver.ca/explore/dataset/council-voting-records/table/?disjunctive.council_member&refine.vote_number=4072&sort=vote_detail_id)
was a motion that carried, despite having more votes in opposition
than explicitly in favour. My previously analysis counted this as a
motion in which the abstention made a difference to the vote.

◊fig[#:src "assets/odp-vote-4072.png"]{The data from the Open Data Portal for vote 4072.}

However, the [minutes for that
vote](https://council.vancouver.ca/20190227/documents/pspc20190227min.pdf)
(see p. 12) clearly show this to be a motion that lost. The abstention
did not make a difference.

◊fig[#:src "assets/minutes-vote-4072.png"]{The minutes for vote 4072.}

I have sent an email to the Open Data Portal maintainers and they are
in the process of correcting the entry.

◊heading{The thirteen motions}

Here, I link to and describe the thirteen motions in which an
abstention made a difference to the outcome of a vote. Again, this is
just for interest and completeness.

◊sub-heading{Vote ◊a[#:href
"https://opendata.vancouver.ca/explore/dataset/council-voting-records/table/?disjunctive.council_member&refine.vote_number=4096&sort=vote_detail_id"]{4096}
(◊a[#:href
"https://council.vancouver.ca/20190227/documents/pspc20190227min.pdf"]{Minutes})}

This related to an emergency interim zoning policy for Broadway
Corridor to UBC. Vote 4096 was on a motion to amend. It changed the
text of the ultimate motion. Instead of directing "staff to extend the
Broadway Plan interim rezoning policy," the motion changed the wording
to direct staff to "explore the implications of extending" it. This
wording made it into the ultimate motion that carried.

◊sub-heading{Vote ◊a[#:href
"https://opendata.vancouver.ca/explore/dataset/council-voting-records/table/?disjunctive.council_member&refine.vote_number=4112&sort=vote_detail_id"]{4112}
(◊a[#:href
"https://council.vancouver.ca/20190227/documents/pspc20190227min.pdf"]{Minutes})}

This related to the same emergency interim zoning policy just
discussed. Vote 4112 was on another motion to amend. It added some
text to the ultimate motion that directed staff to "consider
Affordable Home Ownership specifically in partnerships with BC Housing
Affordable Home Ownership program...". This wording made it into the
ultimate motion that carried.

◊sub-heading{Vote ◊a[#:href
"https://opendata.vancouver.ca/explore/dataset/council-voting-records/table/?disjunctive.council_member&refine.vote_number=4430&sort=vote_detail_id"]{4430}
(◊a[#:href
"https://council.vancouver.ca/20190515/documents/pspc20190515min.pdf"]{Minutes})}

This related to the False Creek to Fraser River Blueways. Vote 4430
was on a motion to amend. It changed the wording that asked the Park
Board to vote. The wording made it into the ultimate motion that
carried.

◊sub-heading{Vote ◊a[#:href
"https://opendata.vancouver.ca/explore/dataset/council-voting-records/table/?disjunctive.council_member&refine.vote_number=4433&sort=vote_detail_id"]{4433}
(◊a[#:href
"https://council.vancouver.ca/20190515/documents/pspc20190515min.pdf"]{Minutes})}

This related to the same False Creek to Fraser River Blueways motion
just discussed. Vote 4433 was on a motion to amend. It changed the
wording that asked the Park Board to vote. The wording made it into
the ultimate motion that carried.

◊sub-heading{Vote ◊a[#:href
"https://opendata.vancouver.ca/explore/dataset/council-voting-records/table/?disjunctive.council_member&refine.vote_number=5035&sort=vote_detail_id"]{5035}
(◊a[#:href
"https://council.vancouver.ca/20191023/documents/pspc20191023min.pdf"]{Minutes})}

This was a motion at the Standing Committee of Council on Policy and
Strategic Priorities. They were recommending changes to the Procedure
By-law. Vote 5035 was a vote on a motion to set the time limit for
"representative speakers" to five minutes. This limit made into the
wording that would ultimately carry and be recommended to council.

◊sub-heading{Vote ◊a[#:href
"https://opendata.vancouver.ca/explore/dataset/council-voting-records/table/?disjunctive.council_member&refine.vote_number=5642&sort=vote_detail_id"]{5642}
(◊a[#:href
"https://council.vancouver.ca/20200310/documents/regu20200310min.pdf"]{Minutes})}

This related to a motion on supporting gender equity and diversity in
Vancouver City Council. Vote 5642 was a motion to amend. It changed
the wording to "support the volunteer reporting of" diversity. But
this was undone in vote 5645 because it didn't fit gramatically or
logically with the rest of the motion's text.

◊sub-heading{Vote ◊a[#:href
"https://opendata.vancouver.ca/explore/dataset/council-voting-records/table/?disjunctive.council_member&refine.vote_number=5790&sort=vote_detail_id"]{5790}
(◊a[#:href
"https://council.vancouver.ca/20200428/documents/regu20200428min.pdf"]{Minutes})}

This related to a motion about COVID-19 pandemic impacts. Vote 5790
was a motion to amend. It added direction to staff to "consider
specific pay parking exemptions for essential and health care
workers...". This wording made it into the ultimate motion that
carried.

◊sub-heading{Vote ◊a[#:href
"https://opendata.vancouver.ca/explore/dataset/council-voting-records/table/?disjunctive.council_member&refine.vote_number=5904&sort=vote_detail_id"]{5904}
(◊a[#:href
"https://council.vancouver.ca/20200526/documents/regu20200526min.pdf"]{Minutes})}

This related to a motion following a presentation from staff on
COVID-19 pandemic impacts. Vote 5904 was a motion to amend. It added
direction to staff to "develop a decision making framework for
prioritizing operating budget reductions...". This wording made it
into the ultimate motion that carried.

◊sub-heading{Vote ◊a[#:href
"https://opendata.vancouver.ca/explore/dataset/council-voting-records/table/?disjunctive.council_member&refine.vote_number=6068&sort=vote_detail_id"]{6068}
(◊a[#:href
"https://council.vancouver.ca/20200610/documents/cfsc20200610min.pdf"]{Minutes})}

Vote 6068 was on a referral motion. It referred the motion entitled
"Short Term Landlords --- Long Term Protections for Renters and
Hotels" (which was about AirBNB-type accomodations) to staff.

◊sub-heading{Vote ◊a[#:href
"https://opendata.vancouver.ca/explore/dataset/council-voting-records/table/?disjunctive.council_member&refine.vote_number=6520&sort=vote_detail_id"]{6520}
(◊a[#:href
"https://council.vancouver.ca/20201020/documents/regu20201020min.pdf"]{Minutes})}

This related to scheduling. Vote 6520 was a motion to amend. It added
wording to direct staff to not schedule public hearings in 2021
earlier than 6pm, Mondays through Thursday and that public hearings
should be evenly distributed month to month. This wording made it into
the ultimate motion that carried.

◊sub-heading{Vote ◊a[#:href
"https://opendata.vancouver.ca/explore/dataset/council-voting-records/table/?disjunctive.council_member&refine.vote_number=6852&sort=vote_detail_id"]{6852}
(◊a[#:href
"https://council.vancouver.ca/20210119/documents/phea20210119min.pdf"]{Minutes})}

This related to a staff presentation about a rezoning. Vote 6852 was
on a motion to waive the staff presentation. It carried, but was
immediately reconsidered in vote 6854 and lost that time, the
abstainers from vote 6852 having switched their votes to votes in
opposition. The staff presentation was heard.

◊sub-heading{Vote ◊a[#:href
"https://opendata.vancouver.ca/explore/dataset/council-voting-records/table/?disjunctive.council_member&refine.vote_number=6883&sort=vote_detail_id"]{6883}
(◊a[#:href
"https://council.vancouver.ca/20210119/documents/regu20210119min.pdf"]{Minutes})}

This related to a rezoning application. Vote 6883 was on a motion to
amend an amendment. It changed the amendment to try to add wording to
request a legal opinion about the language used in some zoning
guidelines. Vote 6883 carried and thus successfully amended the
amendment. But the amendment itself lost and so this wording did not
end up into the ultimate motion that carried.

◊sub-heading{Vote ◊a[#:href
"https://opendata.vancouver.ca/explore/dataset/council-voting-records/table/?disjunctive.council_member&refine.vote_number=7435&sort=vote_detail_id"]{7435}
(◊a[#:href
"https://council.vancouver.ca/20210623/documents/pspc20210623min.pdf"]{Minutes})}

This related to electric kick-scooters. Vote 7435 was on a motion to
amend. It added some wording to exclude the application of a part of a
by-law. This amendment carried, but was immediately reconsidered and
then ruled out of order because it was too similar to something
proposed within the previous 365 days. So, the wording associated with
vote 7435 did not end up in the ultimate motion that carried.

◊heading{History and context of the abstention rule [◊a[#:id "history" #:href "#history"]{direct link}]}

I'm also interested in understanding the history and context of the
abstention rule. As best as I can tell, it was added to the
◊em{Municipal Act} in 1957 and to the ◊em{Vancouver Charter} in
1993. Variants of the rule have also been part of Vancouver's
Procedure By-law since 1887.◊note{While I don't promise that what
follows shows the absolute earliest uses of this rule, I want to share
the earliest appearances that I have been able to find of this rule in
the ◊em{Municipal Act} (generally does not apply to Vancouver) and
◊em{Vancouver Charter} (applies only in Vancouver), as well as in
Vancouver's own Procedure By-laws. The ◊em{Municipal Act} evolved into
today's ◊em{Local Government Act} and the ◊em{Community Charter}.}

◊declare-work[#:id "MA 1957" #:type "statute" #:title "Municipal Act"
#:volume "SBC" #:year "1957" #:chapter "42" #:url
"https://www.bclaws.gov.bc.ca/civix/document/id/hstats/hstats/2118119044"]

The earliest provincial legislation in which I have been able to
locate this rule is Section 164 of the 1957 ◊em{Municipal
Act}.◊note{◊cite["MA 1957"] I have tried to rule out the possibility
that it was around before 1957. I looked at the text of the 1948
◊em{Municipal Clauses Act}. It was a revision/consolidation of many of
the clauses applying to the workings of municipalities. It contained a
clause that is much the same as the eventual 164(1) in the 1957 Act
but did not contain anything like 164(2). I then examined all
amendments to the ◊em{Municipal Clauses Act} between 1948 and 1957 and
could not find that the abstention rule was introduced prior to
1957. I have not done the work necessary to be sure that the
abstention rule was not part of some other Act that I just haven't
thought to look in.}

◊fig[#:src "assets/sbc-1957-c-42-municipality-act-s-164.png"]{Section
164 of the 1957 ◊em{Municipal Act}.}

◊declare-work[#:id "LERA" #:title "Local Elections Reform Act" #:type
"statute" #:volume "SBC" #:year "1993" #:chapter "54" #:url
"https://www.bclaws.gov.bc.ca/civix/document/id/hstats/hstats/1292082593"]

The abstention rule was not added to the ◊em{Vancouver Charter}
then. The rule has lived on in various places in the ◊em{Municipal
Act} (and now in the ◊em{Local Government Act} and ◊em{Community
Charter}) since 1957. But its first appearance in the ◊em{Vancouver
Charter} seems to be in 1993, through the ◊em{Local Elections Reform
Act}.◊note-cite["LERA" #:pinpoint "s 62"] The Act was largely focused
on updating procedures for municipal elections, but it also happened
to make some general amendments to the ◊em{Vancouver Charter}. One of
those amendments was the introduction of the abstention rule.

◊fig[#:src "assets/sbc-1993-c-54-s-62-adding-todays-145-1(3).png"]{The
addition of today's 145.1(3) of the ◊em{Vancouver Charter} as part of
the ◊em{Local Elections Reform Act} in 1993.}

◊declare-work[#:id "VC1953" #:type "statute" #:title "Vancouver
Charter" #:volume "SBC" #:year "1953" #:chapter "55"]

When this bill went through the legislature, the discussion centered
on the electoral aspects of the bill. The bill's sponsor, Robin
Blencoe, said that the bill was a product of "[major consultation with
local government and concerned
citizens](https://www.leg.bc.ca/documents-data/debate-transcripts/35th-parliament/2nd-session/19930614pm-Hansard-v11n3)."

[In
committee](https://www.leg.bc.ca/documents-data/debate-transcripts/35th-parliament/2nd-session/19930728pm-Hansard-v12n21),
when discussing the section of the bill (section 62) that introduced
the abstention rule, members were focused on other aspects of that
section (e.g. quorum, ability to increase council size, the ward
system) and did not mention anything about the abstention
rule. Reading between the lines of that discussion, and given that the
rule would replicate what was already part of Vancouver's Procedure
By-laws at the time, it seems Vancouver was consulted closely on the
content of the amendments.

I considered the possibility that the ◊em{Vancouver Charter}
incorporated by reference the rule from the ◊em{Municipal Act}. But
the ◊em{Vancouver Charter} has been very selective about which
portions of the ◊em{Municipal Act} it incorporates by reference and as
far as I can tell, did not incorporate the abstention rule by
reference.◊note{See ◊cite["VC1953" #:pinpoint "s 578" #:terminal " "]
([as consolidated for convenience in
1979](https://www.bclaws.gov.bc.ca/civix/document/id/hstats/hstats/1675741326)). It
listed several specific sections of the ◊em{Municipal Act} that
applied to Vancouver and said those and only those sections of the
◊em{Municipal Act} applied to Vancouver. The abstention rule was not
one of those sections.}

◊declare-work[#:id "BL 32" #:type "custom" #:custom-format "City of
Vancouver, by-law no 32, *Procedure By-law* (5 December
1887)[[pinpoint]]" #:short-form "*Procedure By-law* (1887)"]

◊declare-work[#:id "BL 516" #:type "custom" #:custom-format "City of
Vancouver, by-law no 516, *Procedure By-law* (2 October
1905)[[pinpoint]]" #:short-form "*Procedure By-law* (1905)"]

◊declare-work[#:id "BL 960" #:type "custom" #:custom-format "City of
Vancouver, by-law no 960, *Procedure By-law* (21 October
1912)[[pinpoint]]" #:short-form "*Procedure By-law* (1912)"]

◊declare-work[#:id "BL 4705" #:type "custom" #:custom-format "City of
Vancouver, by-law no 4705, *A By-law to amend By-law No. 3792, being
the Procedure By-law* (19 June 1973)[[pinpoint]]" #:short-form
"*Procedure By-law Amendment* (1973)"]

◊declare-work[#:id "BL 8554" #:type "custom" #:custom-format "City of
Vancouver, by-law no 8554, *Procedure By-law* (8 October
2002)[[pinpoint]]" #:short-form "*Procedure By-law* (2002)"]

However, long before provincial legislation dictated the abstention
rule for Vancouver in 1993, Vancouver had established its own
abstention rule as part of its Procedure By-laws. The very first
Procedure By-law, passed in 1887, said:

◊q{

Every member who should be present in the Council Chamber when a
question is put shall vote thereon, unless the Council shall excuse
him, or unless he be personally interested in the question, provided
such interest is resolvable into a personal pecuniary profit or such
as is peculiar to that member, and not in common with the interests of
the citizens at-large, and in such case he shall not
vote.◊note-cite["BL 32" #:pinpoint "s 16"]

}

◊fig[#:src "assets/Vancouver-by-law-32-s-16.png"]{This is Section 16
of 1887 Procedure By-law, the first such By-law passed by the City of
Vancouver.}

The Procedure By-law passed in 1905 says roughly the same thing. The
rule was that "[e]very member present at a Council meeting when a
question is put shall vote thereon unless the Council shall excuse him
or unless he is prohibited by law from voting on such
question."◊note-cite["BL 516" #:pinpoint "s 16"] The by-law did not
say what would happen if a councillor insisted in not voting. This did
not change until 1912, when a new Procedure By-law was passed. It said
"if any member persists in refusing to vote for other than the reasons
hereinbefore stated, he shall be recorded as voting in the negative on
the question before Council."◊note{◊cite["BL 960" #:pinpoint "s 16"] I
want to know what councillor's obstinance forced them to clarify this
rule!}

◊fig[#:src "assets/Vancouver-by-law-960-s-16.png"]{In 1912, Council
clarified that non-votes were counted as negative votes.}

This was the abstention rule until 1973, when Council replaced
"negative" with "affirmative."◊note-cite["BL 4705" #:pinpoint "s
5(b)"]

◊fig[#:src "assets/Vancouver-by-law-4705-s-5.png"]{In 1973, Council
adopted the abstention rule that had already been prescribed for other
municipalities since 1957: non-votes are affirmative votes. For
Vancouver, this would remain merely a Procedure By-law until 1993.}

The abstention rule remained part of the Procedure By-laws until
2002. By 2002, the abstention rule in the Procedure By-law had been
made redundant because it was prescribed by provincial
legislation. So, it was not renewed as part of the 2002 Procedure
By-law.◊note-cite["BL 8554"]

◊declare-work[#:id "WA" #:type "book" #:title "Mayor & Councilmember
Handbook" #:author-institutional "Association of Washington Cities and
Muncipal Research & Services Center of Washington" #:year "2019" #:url
"https://mrsc.org/getmedia/034f13b6-7ec2-4594-b60b-efaf61dd7d10/Mayor-And-Councilmember-Handbook.pdf.aspx?ext=.pdf"
#:short-form "Washington Handbook" #:publisher-location "Olympia"]

For a comparative look across the border, Washington publishes a
◊em{[Mayor & Councilmember
Handbook](https://mrsc.org/getmedia/034f13b6-7ec2-4594-b60b-efaf61dd7d10/Mayor-And-Councilmember-Handbook.pdf.aspx?ext=.pdf)}.◊note-cite["WA"]
In Washington, state law does not specify how each municipality must
treat abstentions. It is open to each municipality in Washington to
decide how to treat abstentions. The handbook gives example text for a
rule that municipalities can use to treat abstentions as affirmative
votes. It also provides one possible justification for such a rule:
"If a city does not have a rule, abstentions by one or more
councilmembers may make it impossible for final action to be taken on
a matter, particularly where a majority vote of the full council is
needed."◊note-cite["WA" #:pinpoint "43"]

◊declare-work[#:id "AB" #:type "statute" #:title "Municipal Government
Act" #:volume "RSA" #:chapter "M-26" #:year "2000" #:url
"https://www.qp.alberta.ca/documents/Acts/m26.pdf"]

In Alberta, the rule is that "[a] councillor attending a council
meeting must vote on a matter put to a vote at the meeting unless the
councillor is required or permitted to abstain from voting under this
or any other enactment."◊note-cite["AB" #:pinpoint "s 183"] A
councillor in Alberta is ◊em{required} to abstain when they have a
conflict of interest◊note{◊cite["AB" #:pinpoint "s 172"] British
Columbia makes a different distinction in terminology and does not
lump abstentions together with declarations of conflict.} or when they
are absent for the entire public hearing on a matter.◊note-cite["AB"
#:pinpoint "s 184"] A councillor ◊em{is permitted} to abstain if they
were absent from a portion of a public hearing on a
matter.◊note-cite["AB" #:pinpoint "s 184"] If a councillor does not
vote on a matter when they are neither required nor permitted to
abstain, that disqualifies the councillor from council
altogether.◊note{◊see["AB" #:pinpoint "s 174(f)" #:terminal ": "] "A
councillor is disqualified from council if... the councillor does not
vote on a matter at a council meeting at which the councillor is
present, unless the councillor is required or is permitted to abstain
from voting under this or any other enactment.}  That's much harsher
than the rule in BC. In BC, abstentions are ◊em{deemed} affirmative
votes. In AB, abstaining when you are required to vote gets you kicked
off council!

In Saskatchewan, if a councillor who is not required to abstain
abstains, their vote is deemed a negative vote. In Manitoba, I cannot
find any rule governing this scenario in provincial legislation or the
Winnipeg Procedure By-law. In Ontario, non-votes are deemed negative
votes. In Quebec, every councillor is "bound to vote, under penalty of
a fine of $10." In Nova Scotia, failure or refusal to vote is deemed a
negative vote. In Prince Edward Island, failure or refusal to vote is
deemed a vote in favour. In New Brunswick, there is no provincial
legislative direction, but Fredericton and St. John Procedure By-laws
both deem non-votes to be affirmative votes. In Newfoundland and
Labrador, abstentions are prohibited unless permitted by majority vote
of the other councillors.

Almost universally, in municipal councils in Canada, it is not
possible to avoid casting a vote in one direction or the other (other
than when in a conflict of interest).

In summary, this rule has been prescribed by provincial legislation
for at least twenty-eight years in Vancouver and sixty-four years in
British Columbia. And as a Procedure By-law, it has existed in various
forms since Vancouver's first Procedure By-law in 1887 (first, merely
mandating that each councillor vote; then, deeming non-votes to be
negative votes; then, deeming non-votes to be affirmative votes).