If Friday’s Divisional Court ruling dismissing the conflict allegations against Mayor Rob Ford holds a lesson for local politicians, it is this: process matters.
From the start of the trial into the issue of whether Mr. Ford broke the conflict rules by voting in favour of a motion to rescind an order that he repay $3,150 in lobbyists’ donations to his football foundation, his lawyer Alan Lenczner hammered away at a series of often arcane legal arguments about whether council had judiciously followed the rules governing the conduct of municipal politicians.
It was a legal variation on the old adage about how those who live in glass houses should be cautious about throwing stones.
At the heart of his case sit two discrete but potentially overlapping laws, both designed to police the behaviour of elected officials. The older and narrower one, the 40-year-old Municipal Conflict of Interest Act, is all about political self-dealing. It says, in effect, that councillors must come clean when they’re debating issues in which they have a direct or indirect financial stake.
There are no prohibitions under this law that prevent councillors from trying to develop land they might own, or having family members in the employ of the municipality. But if council finds itself debating items that have a bearing on a councillor’s personal business, he or she has to stand up and say so, and then keep their mouths shut during the debate. The penalties, which include removal from office, are stiff because the law is about ensuring accountable decision-making.
The other type of policing, the Code of Conduct, was part of a much newer and broader law, the City of Toronto Act, that came into effect only six years ago. COTA was intended to accomplish a range of objectives, among them establishing a formal means for councils to police the conduct of their members, using an integrity commissioner. It was a direct political response to a notorious lobbying and procurement scandal that rocked City Hall about a dozen years ago.
The penalties for breaches of the code of conduct that are not covered elsewhere in Canadian law (for example, by the the fraud provisions of the Criminal Code) are less onerous and, according to the Divisional Court’s ruling, not open to interpretation.
The core of Mr. Lenczner’s case was that the mayor – due to both his actions and then the political response to them – ended up in a kind of legal limbo between these two pieces of legislation.
Because of his initial transgression – using city staff and letterhead to solicit donations from registered lobbyists, thus creating the potential expectation of returned favours – integrity commissioner Janet Leiper recommended that he reimburse the donations. And in August, 2010, during the last session of David Miller’s mayoralty, council agreed.
Mr. Ford refused to comply, got elected mayor, and found himself last February embroiled in a council debate about whether to reverse that earlier penalty. The overlap between the MCIA and the COTA occurred because he chose to participate in a debate that dealt with the fine levied against him under COTA.
Picking up Mr. Lenczner’s argument in both the trial and the appeal hearing, the Divisional Court said Ms. Leiper stepped beyond her authority by recommending a penalty not specified in the City of Toronto Act, thus rendering everything that followed a “nullity.” The judges also made it abundantly clear that it mattered a great deal legally that the donations hadn’t passed through Mr. Ford’s hands.
That judicial rebuke will likely have long-lasting consequences, as it sends a clear signal to Ontario’s municipal integrity commissioners that they mustn’t improvise. It’s also a stern reminder to the City of Toronto that it is still a creature of the province, despite legislative attempts by Mr. Miller and Ontario’s Liberal government to loosen the restraints on Canada’s largest city.
At the same time, the decision provides judicial clarity into a procedural problem identified during the inquiry into allegations of conflict of interest against Mississauga mayor Hazel McCallion. In both that case and this one, a fairness question surfaced: if a councilor is accused of violating the code of conduct and faces a possible financial penalty, shouldn’t he or she be able to stand up and defend themselves in public – a right ordinary citizens are guaranteed if they are accused of breaking the law – without worrying about violating the conflict of interest laws?
That particularly problem will have to be resolved by the provincial legislature. And the ruling in the Ford case strongly suggests that such a reform should be made sooner rather than later.
John Lorinc is a municipal affairs writer based in Toronto