A few days later, in the same paper, I lashed out at the questionable journalism: "No knowledgable expert or commentator has yet offered a legally sound explanation of how the judge may have made an error in law — and, in the meantime, all we have are unsolicited submissions from anonymous lawyers, to whose ill-informed opinions this newspaper’s columnists have given undue weight."
To dispute my claim that no named source had yet poked holes in Hackland's decision, Financial Post editor and Ford fan Terence Corcoran dug up a blog called Administrative Law Matters, authored by Professor Paul Daly of the Université de Montréal. Corcoran cited it extensively and triumphantly.
In one post, Daly examined the purpose of the Municipal Conflict Of Interest Act (i.e., routing out corruption) and argued that its application in the Ford case was inappropriately literal; that is, although Ford violated the letter of the law when he voted to save himself the money he'd been ordered to repay, he did not run afoul of its spirit. In a second post, Daly examined whether the order to repay the money had been legal in the first place.
Subsection 160(5) of the City Of Toronto Act states that "council may impose either of the following penalties" on a member that has violated its code of conduct: a reprimand or a suspension of up to 90 days' worth of pay. But does "may impose either of the following penalties" mean that these two are among the penalties available to Council? Or does it mean that these are the only penalties available to Council?
Daly's wife had an idea: why not look up the French version of the law to see if it might be any clearer. ("Pro tip: it is worthwhile to marry someone smarter than you are!" he wrote.) The French version, it turns out, is less ambiguous; in place of "either," it has "l'une ou l'autre" — literally, "the one or the other."
Daly repeated his point about the French version in his own guest piece for the Financial Post. A few weeks later, Ford's lawyer, Alan Lenczner, borrowed the approach for his oral arguments in court. And then, last Friday, the three-judge panel of the Divisional Court incorporated the same point in its decision that overturned Hackland's earlier ruling.
***
But here's where it gets tricky: Hackland himself had accepted this
interpretation of the City Of Toronto Act. He determined, however, that
the ordered repayment was not a penalty but a remedy: the objective was
reparative, not punitive.The final page of the Code Of Conduct For Members Of Council [pdf] quotes the above portion of the City Of Toronto Act setting out the two penalties. But it goes on to enumerate a series of "Other Actions" that the Integrity Commissioner may recommend that Council take. These include: "repayment or reimbursement of moneys received"; "return of property or reimbursement of its value"; and a "request for an apology to Council, the complainant, or both."
These passages date to September 2006, when City Council revised the Code Of Conduct to incorporate both the powers set out in the then-new City Of Toronto Act as well as recommendations made by Madame Justice Denise Bellamy in her 2005 report on the MFP scandal [pdf, p. 49]. David Mullan, the City of Toronto integrity commissioner who authored the revisions, tried to include as many of Bellamy's suggestions as he could [pdf]. But he was aware that "without express authority" from the COTA, he could not include such things as a fine or expulsion from office.
He did propose two measures Bellamy hadn't suggested: "a couple of subsidiary sanctions on repayment or reimbursement. Given the range of conduct covered by the Code of Conduct, there is ample justification for a wide range of sanction for violation, which Council can tailor to the particular circumstances of the report before it." But he cautioned that "there is a legal question whether the general powers of Council under the Act permit expansion of the list of sanctions." Nevertheless, he thought the Code "should contain a provision repeating the possible sanctions."
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David Mullan's successor as integrity commissioner was Janet Leiper, who took the role in September 2009. Less than a year into the job, Leiper produced the report that would stand as her masterpiece: the August 2010 inquiry into a series of dubious practices in which Councillor Rob Ford engaged while raising funds for his football foundation [pdf].
It is hard to read the report and not get angry. Ford's intransigence and his inability to understand basic ethical principles become exasperating. And through a straightforward account of the process and findings of her investigation, Leiper made her own frustration apparent. It was quite possibly the best examination of Rob Ford that anyone had written up to that date.
At its conclusion, and after she had found that Ford had breached three sections of the Code Of Conduct (those concerning "Gifts and Benefits," "Use of City Property, Services and Other Resources," and "Improper Use of Influence"), Leiper spent two and a half pages on the question of the "Appropriate Sanction."
She revealed that she'd suggested six possible voluntary actions Ford might take to remedy various aspects of the situation — but that he had not opted to take any of them:
This would have been an ideal case for the Councillor to demonstrate accountability and understanding by taking practical, corrective actions before this matter came to Council. Councillor Ford was given the opportunity to take a number of corrective steps. (The recommended steps were acknowledgement of the breach, agreeing to change his fundraising methods, repayment to the City and the lobbyists/corporation, an apology, consultation with the Lobbyist-Registrar, and correction of misstatements about his Football Foundation in his publications.) He considered these recommendations and we discussed them on a number of occasions in July and early August. As of the date of this report, Councillor Ford had not yet confirmed as requested whether or not he would take any corrective action.Leiper then explained that she considered recommending that Council order Ford to apologize, but that that would be meaningless "because it would not be sincere." She also considered requesting Council make Ford "repay the value of staff time used in administering his Football Foundation," but decided that his failure to keep records meant that she could not accurately determine the precise amount of time he had had his taxpayer-funded staff working for his football fund.
So she chose to put forward a sanction that was directly proportionate to what was arguably the most problematic of all of Ford's behaviours: soliciting donations from lobbyists. "A search was conducted of the Lobbyist Registry," she wrote, "which revealed that among the donors to the Football Foundation, 11 firms or clients of firms were engaged in or about to be engaged in lobbying public office holders at the City of Toronto in the same year in which they made donations." And of these 11, "seven had either lobbied or had registered an intention to lobby Councillor Ford" in the same period.
The total value of the lobbyists' money — including a donation from a company that was not itself a lobbyist but which had recently won valuable City contracts — was $3,150. It was logical that this cash should be returned.
***
The problem, as we would only learn two and a half years later, was that Leiper did not approach this as a matter of restoring balance to the universe. Rather, she approached it as a matter of driving through Ford's thick skull that his actions were not acceptable. This was the fifth report concerning his violations of the Code Of Conduct that had come to Council, and she wanted to let him know that there would be repercussions for his repeated noncompliance.
"Such a sanction," Leiper wrote in a passage the Divisional Court would later quote disapprovingly, "would convey Council’s expectation that Councillor Ford is responsible for ensuring that he does not ask for or receive benefits in violation of the Code of Conduct and that he will be held accountable by Council for such violations. It would also reflect the importance of a Councillor not using the influence of office for personal causes."
While Hackland had determined that repayment was a remedial measure, the Divisional Court panel looked at Leiper's precise words and determined she had used "the language of deterrence and denunciation." (They also noted that she had referred to the measure as a "sanction," ignoring that the report uses the word in a very broad sense throughout, including in reference to apologies.)
The court further determined that although the Code Of Conduct allows for Council to order the "repayment or reimbursement of moneys received," that could not be invoked in this situation: Rob Ford did not himself receive the money but rather facilitated donations to the Rob Ford Football Foundation, which is technically a fund administered by the Toronto Community Foundation.
There is another provision in the Code Of Conduct that says Council can order the "return of property or reimbursement of its value," but the appeals court decided that "there is nothing to suggest that the Council relied on this provision." But there was also nothing in the reports to Council that suggested it was the other provision that they were relying on.
***
In Canada, municipalities only exist because a province has passed some laws saying as much. And municipalities can only do the things that a province has said they can do. In theory.
In recent years, courts and governments have erred on the side of breadth and latitude in determining the degree of freedom possessed by municipalities. While their ability to act is hardly unfettered, it is also not necessarily limited to what has been explicitly allowed.
It is therefore absurd that the City of Toronto is obligated to establish a code of conduct but that its mechanisms for enforcing it are limited to precisely two: a reprimand or a suspension of pay. As the lawyers handling the suit against Ford pointed out (p. 10–11), the return-or-reimbursement action recommended by the Integrity Commissioner is more severe than the first and less severe than the second. It is also proportionate to the contravention and serves a remedial purpose. Moreover, how is an integrity commissioner supposed to fulfill her statutory duty to ensure compliance with the code of conduct if not given the tools to do so? Or if a member of council is too obstinate to respect the mandate of her office? If she had recommended that Ford's pay be docked for $3,150, that would apparently have been kosher. But it would also have been comparably arbitrary.
Many of the arguments in the conflict of interest case involved the lawyers tossing out dueling precedents regarding the scope of municipal authority. The courts are constantly refining just how much, and in what ways, cities can go beyond the powers that have been expressly bestowed to them. Minimizing this ambiguity is critical for determining not only how cities can go about their business but also what their business itself is. Any case that calls into the question the limits and extent of municipal powers should obtain as much clarification as our judicial system permits.
Clayton Ruby, who has led the suit, is now seeking leave to appeal to the Supreme Court of Canada. The current consensus is that leave is very unlikely to be granted. But if you are a lawyer with a contrary opinion, please do get in touch. Anonymity not guaranteed.
Source: NOW
Author: Jonathan Goldsbie
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