Monday, November 26, 2012

Rob Ford Ordered Removed From Office

Big news in T.O. today:  Argos won!

But, more interesting from the perspective of a law blogger, Justice Hackland released his decision on Rob Ford's Conflict of Interest Case.  Full text here.

For those who have only been paying passing attention to this, let me clarify a few things:  This is not related to the defamation action for which he's been in the news lately.  Back in 2010, due to improper fundraising for his football charity, Rob Ford was ordered to personally reimburse donors in the amount of $3,150.  He didn't do so.  When the matter came before Council again in February 2012, he made a passionate argument about why he shouldn't have to repay the amount, and proceeded to vote on a motion to rescind the order.

Just one problem:  That kind of looks like a vote in his own personal interest, contravening the Municipal Conflict of Interest Act.

I commented on this case in September in an entry entitled "Will Ford Escape?" (pun intended).  I conceded in that entry that removal from office seemed like an overly harsh penalty, but considered Ford's actual defences to be fairly tenuous, based on the coverage I'd seen.  And the trouble is that removal from office, except in narrow circumstances, is a mandatory penalty.  Unless the judge concluded that Ford didn't violate the MCIA, or concluded that the violation was a result of inadvertence or an error in judgment, he had no choice but to order removal from office.

Let's go through the prongs of Ford's defence, as before:

(1)  The MCIA doesn't apply

I dealt with this summarily in my previous entry, because from the news coverage on the point I didn't fully appreciate the argument being made:  Justice Hackland explained the argument as being that the MCIA doesn't apply to Council's deliberations based on a member's alleged violations of the Code of Conduct.

The most persuasive pitch made along those lines is that it would be draconian to prohibit a member from participating in a debate on whether or not he breached the rules; principles of natural justice would require an opportunity to speak in one's own defence.

However, Justice Hackland applied a plain reading of the the MCIA and concluded that there was no basis for interpreting it to exclude Code of Conduct matters.  No constitutional argument was made to justify it being read down, either, and - in any event - even if Ford could justify speaking in his own defence on the matter, those natural justice concerns would not extend to voting in his own interest.

(2)  Council Couldn't Enforce the Order to Reimburse the Donors

In my previous entry, I suggested that this was arguable, but that, even if technically correct, Council would have other powers to exercise.

Justice Hackland didn't get that far.  He found that Council had the power to order reimbursement, and to enforce the order if necessary, so the whole argument failed.

Because of the inevitability of an appeal of the case, I would have liked to have seen him consider some of the alternative positions - I assume that Mr. Ruby made alternative arguments - but his interpretation is soundly based in the existing jurisprudence.

(3)  The Sum Was Too Small

As I noted in my previous entry, this argument is built on an exception in the MCIA for an interest "which is so remote or insignificant in its nature that it cannot reasonably be regarded as likely to influence the member".

True though it may be that $3,150 isn't a great deal of money, especially to someone like Rob Ford, I argued that it couldn't fit within that exception, in light of the fact that the vote itself was specifically on whether or not Ford should be required to pay.  The notion that Ford wouldn't be influenced by his own personal interest in the outcome of the vote was frankly absurd.

Justice Hackland reached a similar conclusion, based largely on Ford's own remarks prior to the vote:  "...[Ford] has taken himself outside of the potential application of the exemption by asserting in his remarks to City Council that personal repayment of $3,150.00 is precisely the issue that he objects to...."

(4)  Inadvertence or an Error in Judgment

This isn't a full defence, but it mitigates the penalty, relieving against the mandatory removal from office.  As I pointed out, "the Courts have recognized that pretty much every offence - even the most serious crime - can be said to involve an error in judgment, but the meaning of the phrase per the MCIA is somewhat narrower."

What the Courts look for is evidence that the contravention was incurred "honestly and in good faith", including "some diligence on the respondent's part; that is, some effort to understand and appreciate his obligations.  Outright ignorance of the law will not suffice, nor will wilful blindness as to one's obligations."

This really is where Ford had the opportunity to make a difference on the stand.  If he had come on the stand and claimed to have been aware of his obligations, but to have simply failed to appreciate their implications at the time, and apologized for his conduct and promised that it wouldn't happen again, he would have given the judge an "out".

However, he didn't do that.  Instead, Justice Hackland found that the error arose from "a stubborn sense of entitlement (concerning his football foundation) and a dismissive and confrontational approach to the Integrity Commissioner and the Code of Conduct."

So What Happens Now?

First off, Toronto isn't officially sans-Mayor.  The order has been suspended for 14 days.  And we can be reasonably confident that Ford's lawyer will file a notice of appeal to the Divisional Court, and seek a stay pending appeal, meaning that the order won't become effective until after the Divisional Court has its say, which is certain to be months away.  So Ford will continue to hold his office for the time being, though he will arguably be a bit of a Lame Duck in the mean time.  Love him or hate him, Lame Duck status isn't good on any level.

As a small blessing, the Court of Appeal has taken the highly questionable approach in cases like these of treating the Divisional Court's decision as being final, with no right of appeal.  As a consequence, it is unlikely that the matter will be bogged down too much with subsequent appeals.  That isn't to say that I don't expect such appeals to be filed - if, as I expect, the Court of Appeal declines to hear the case, I expect that whomever is unsuccessful at the Divisional Court to seek Leave to Appeal to the Supreme Court of Canada (which may well result in the Supreme Court telling the Court of Appeal to hear the merits of the case, which would be subject to another Supreme Court appeal)...

...but if Ford is unsuccessful at the Divisional Court, as is probable on the face of Justice Hackland's thorough and well-reasoned decision, I would be surprised if he achieves stays during the course of the subsequent procedural wrangling.  So I think that, as far as the City is concerned, the Divisional Court's finding will be practically the final say.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

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