In a commentary in The Globe and Mail, SJD student and Trudeau scholar Michael Pal analyzes the municipal conflict of interest law that forced Mayor Rob Ford from office ("Ford victim of a sledgehammer law ill suited to knuckle-rap offences," November 27, 2012).
Read the full commentary on The Globe and Mail website, or below.
Ford victim of a sledgehammer law ill suited to knuckle-rap offences
Even if you’re not a member of Ford Nation, Monday was a sad day for democracy. Toronto Mayor Rob Ford was removed from office for violating conflict of interest laws. Voters should ideally have the final say on their representatives through the ballot box, not the courts. But judges must enforce the rules even when unpalatable outcomes result.
Unfortunately, the rules need long-overdue changes.
A long-running saga at City Hall over whether the Mayor was obliged to pay back $3,150 was the dispute behind the controversial ruling. Voters are conditioned to have low expectations for elected representatives. They may wonder: Why the fuss over a small sum?
The City’s Integrity Commissioner reported in 2010 that then-councillor Ford inappropriately used the city logo, city resources, and his status as a councillor to raise money for his football charity. City Council adopted the commissioner’s recommendation that Mr. Ford pay back $3,150. Mr. Ford repeatedly declined, and the issue again came before Council. On February 7, 2012, Mayor Ford took part in a Council vote that removed his obligation to repay the money.
Mr. Justice Charles Hackland found that Mr. Ford was in a pecuniary (i.e. monetary) conflict of interest. The Municipal Conflict of Interest Act barred him from speaking or voting in the Council debate over his repayment of the sum – rules that Mayor Ford ignored.
The legally required remedy? Removal from office.
Any ethical breach is a serious matter. The Municipal Conflict of Interest Act was largely designed to prevent transactions, such as lucrative land deals, that financially benefit elected representatives. However, improperly raising money for a charity and then voting on the obligation to pay back $3,150 arguably sits on a different part of the ethical spectrum.
Mayor Ford’s actions involved, in the judge’s words, “absolutely no issue of corruption” and a “modest amount of money” amounting to “an unfortunate but arguably technical breach” of the rules.
Yet the Act is unforgiving and ignores such nuances by imposing a mandatory penalty of removal. If there’s a pecuniary conflict, the judge “shall…declare the seat of the member vacant.”
The Mayor did have some potentially promising lifelines under the act, if he could convince the judge the money at stake was insignificant, or the conflict of interest resulted from inadvertence or errors in judgment.
But the Mayor sank himself. First, he argued in council that it was unfair to have to “pay it out of my own pocket.” This implied that the money was significant to him. Second, the evidence suggests that Mayor Ford deliberately, not inadvertently, flouted the rules. The judge found he was initially informed about the conflict by the council speaker, but persisted in holding a “stubborn sense of entitlement… characterized by ignorance of the law and a lack of diligence… amounting to willful blindness.”
The Mayor made many missteps and engaged in a conflict of interest. But the legislation mandating his removal from office as an inevitable consequence is flawed and ripe for amendment.
The mandatory penalty acts as a “sledgehammer,” according to former integrity commissioner David Mullan. The Mississauga Inquiry into conflicts of interest recommended that more refined tools be available. Its report proposed temporary suspensions from office, reprimands and formal apologies among other alternatives. Serious consequences short of removal would seem more proportionate to the gravity of the Toronto mayor’s offences.
The province has not yet amended the legislation, so the judge was left in the difficult position of being obliged to remove the mayor of Canada’s largest city.
No final resolution will come any time soon. An appeal seems inevitable, possibly raising constitutional challenges to the legislation. The Mayor may be allowed to stay in office while his appeal runs its lengthy course. If not, it is up to council to choose a replacement or to call a by-election.
Mr. Ford can hold elected office again, as Justice Hackland did not impose the possible seven-year disqualification. There may be a fight over whether he is eligible to run in a by-election, as his lawyer is arguing in the press, or only in the regularly scheduled 2014 race, as seems more plausible. All of this will be messy and will detract from other important issues facing Toronto.
We should hold our elected representatives to the highest standards of integrity. Nobody is above the law, even the most powerful. It is the proper role of courts to enforce the laws on the books and to hold our leaders to account on our behalf. But the conflict of interest rules should let judges choose the punishment that fits the crime.