That a judge has booted the mayor of Toronto from office has, not surprisingly, generated considerable controversy. It is uncommon in Canada for a sitting politician to be unwillingly removed from office in between elections, and even more so by a judge’s hand.
The case will generate a lot of debate about whether what Mr. Ford did warranted such a strong sanction, especially given the circumstances surrounding his ethical and legal infraction. Some commentators are already calling on provincial lawmakers to revisit the conflict-of-interest legislation at the heart of the case to see if it could be structured in a less ham-fisted way, perhaps creating a regime that allows for censure or fines but that, except for egregious cases, leaves it to voters to fire elected representatives. These are all legitimate points of debate.
What is clear, however, is that this is not a case of “judicial activism,” where a judge oversteps his or her authority or renders a decision in a manner that increases judicial power. If anything, the opposite is true.
Rob Ford was found to have breached a law called the Municipal Conflict of Interest Act (MCIA) by voting in council on whether he would be forced to pay back $3,150 in funds he collected for his private football charity. He had solicited the funds by improperly using city resources and the City of Toronto logo in contravention of Toronto’s Code of Conduct for Members of Council.
Mr.Ford did not lose his job because he was raising money in a manner contrary to the Code of Conduct, but because – contrary to the MCIA – he took part in debate and voted on the issue of whether he must pay back the funds. Section 5 of the MCIA expressly prohibits members of council from such involvement in any matters where they have a direct or indirect financial stake.
It would not have been unreasonable to expect the judge in this case to find any legitimate excuse he could to avoid unseating the mayor. Canadian judges generally like to avoid the perception that they are involved in politics, let alone render decisions that so directly impact the fate of a duly elected politician. But Mr. Justice Charles Hackland had little room to manoeuvre and was basically reduced to three options.
First, he could avoid finding against the Mayor by restricting or “reading down” the scope of the MCIA in a way that it would not apply in this particular case (which would have been contrary to the clear language of the law) or by finding that Mr. Ford’s actions were due to a good-faith error in judgment.
But, as Judge Hackland stated in his decision, Mr. Ford knew he could be in a conflict-of-interest situation because the Speaker had warned him of that fact. The judge further noted that “it is difficult to accept an error in judgment defence based essentially on a stubborn sense of entitlement (concerning his football foundation) and a dismissive and confrontational attitude.”
Second, the judge could have declared the law itself unconstitutional. Yet there were no constitutional arguments made during the case, and it would have been unusual and especially activist for the judge to take it upon himself to introduce them into his reasoning.
It is possible that we will see Mr. Ford make Charter of Rights arguments on appeal. The law not only prohibits him from voting but also from speaking in council in his own defence regarding his activity, which may lend itself to a freedom-of-expression argument.
Perhaps more fundamentally, the punitive nature of removal from office resembles a “mandatory minimum” sentence that might conceivably infringe his legal rights under the Charter (I’m personally skeptical as to this point and have little problem holding politicians to the highest of standards, but an appellate court might entertain such arguments).
With these two options explored but exhausted, Judge Hackland was left with no choice but to issue a finding against Mr. Ford and relieve him of his duties. In designing the MCIA, the Ontario government determined that the ethical basis for the conflict-of-interest law was of such grave importance that offenders deserve the ultimate political price.
That is a legitimate, democratic decision over which reasonable people might reasonably disagree. But in making that determination, the Legislature chose to permit no judicial discretion nor offer any other options for sanctioning a member of municipal council who has been found in breach of its provisions.
For a judge to craft such an alternative on his own, in the face of a clearly drafted law and in the absence of identifiable constitutional problems, would have been judicial activism at its most extreme.
Emmett Macfarlane is an assistant professor of political science at the University of Waterloo.
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