Monday, December 3, 2012

Does the MCIA need change?

I posted last week about Justice Hackland's decision which may result in Ford being removed from office.  It's a little outside of my usual material, but in light of my commentary, and the news coverage about calls for the Municipal Conflict of Interest Act to be changed, I think it's worth weighing in again.

Let me begin by saying that I do believe that the MCIA needs to be reformed, but I think I would probably disagree with most people as to how it needs to be changed.

What Doesn't Need to be Changed:  Automatic Removal From Office

The main criticisms are landing on the mandatory minimum penalty, removing the person from office unless certain narrow and specific criteria are met.  I am not generally a fan of mandatory minimums, and I'm knowledgeable enough on that topic that I could argue that point at length, but that's not the issue here.  In fact, in this case, I'm not prepared to disagree with the mandatory minimum penalty.

The truth is that judicial discretion, while something that I generally appreciate, has its limits, as it should.  Removing elected officials from office is not something which I think should be subject to judicial discretion:  We need fixed statutory guidelines as to when it's appropriate, so that, in effect, it is the legislature - not the judiciary - which determines when a municipal officeholder must be removed.

And I'm not prepared to say that the current test is wrong, either, or that something should be put in to relieve against circumstances such as Ford's.  The truth is that a well-meaning politician who takes his conflict of interest obligations seriously will not run into trouble with these provisions of the MCIA.  The bar is not set too high, and Ford made his own bed here.

What Does Need to be Changed:  Code of Conduct Issues

I have a hard time criticizing Ford for speaking in his own defence prior to the vote in February.  Technically, it is a violation of the MCIA, but when Ford was personally accused of wrongdoing, and his penalty was at issue, principles of natural justice require that he be permitted to speak in his own defence.  Voting, of course, is another matter - procedural fairness doesn't require that one sit on one's own jury.

The MCIA does need to be amended to provide a different and specific process for votes which so directly affect members of council as to trigger procedural fairness concerns, such as the one in this case.  Done properly, this would give more direction and more clarity as to a council member's specific rights and obligations in such cases, and would make it even harder for a reasonably diligent politician to accidentally end up on the business end of the "sledgehammer" of the mandatory removal from office.


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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