Monday, November 26, 2012

A Few Quick Thoughts on the Rob Ford Thing

Note: If you're not invested in the local politics of Toronto, Ontario (it's in Canada) then you can probably tune out now.

Those of you still reading will have no doubt heard by now that Mayor Robert Ford was removed from office this morning for contravening the Municipal Conflict of Interest Act [aside: today is probably the most traffic Ontario's e-laws website has ever gotten]. Justice Charles Hackland suspended the verdict for two weeks in recognition of the major administrative changes the decision necessitates for the City of Toronto. However, the plain truth of the matter is that "the seat of the respondent, Robert Ford, on the Toronto City Council, [is] vacant" (paragraph 61 of the decision, available here).

This is a pretty surprising decision. As numerous outlets discussed this morning, Justice Hackland didn't have a lot of options in terms of his decision. Add to that the fact that Ford painted himself into a corner at trial by "pleading incompetence" (in the words of Matt Gurney), and the inadvertence / good faith error in judgment option was pretty much (though admittedly not entirely) off the table. However, what we ultimately got still seemed like the least likely of the choices open to Hackland.

Reading through the decision, the finding that Ford's actions constituted a conflict seems pretty solid. It's boring and technical and dense, but that's the nature of the administrative law territory that we're in with a municipal conflict of interest question. So if he contravened the Act then the only outs for Ford are via inadvertence, a good faith error in judgement, or the amount involved being "remote or insignificant in nature." As the decision and Gurney's "pleads incompetence" piece above demonstrate, the inadvertence defence is definitely inapplicable here and the good faith error route seems unlikely too.

So that leaves the section 4(k) defence that the amount was insignificant, and at only $3150 that seems like a pretty reasonable assessment (when you consider the Mayor's salary). Dealt with in just four short paragraphs (41 - 44), Hackland's finding that the amount was significant to the Mayor seems like the one major blindsport in the decision. The finding is based on Fords comments to City Council, which immediately places it on shaky ground. From a statutory interpretation perspective, there's absolutely no analysis of what could "reasonably be regarded as likely to influence" Mayor Ford, which should be the driving force in any determination of whether the saving provision applies. Additionally, putting the focus on Ford's comments directs the focus away from the pecuniary nature of "the interest" and into the distinctly political territory of what Rob Ford actually values. Granted, what I've just cursorily written is an off-the-cuff and suspect legal-ish analysis, but at the end of the day Hackland's decision on Ford's section 4(k) defence is minimal at best. It presents the most obviously viable option for Ford's inevitable appeal, and that's really what I wanted to get to in all this...

Mayor Ford is going to appeal Hackland's decision, which will almost certainly be stayed pending the outcome of that appeal. I'd be shocked if anything different happened (even moreso than if the appellate court ultimately upheld Hackland's verdict). has a pretty good run down on the possible paths this whole thing could take in the coming days, but I think they overestimate the likelihood of Ford not getting a stay of the decision pending appeal. As acknowledged in the decision at paragraphs 46 and 47, the Act has been criticized as "Byzantine" in how the only order available in the case of a conflict is the "sledgehammer" remedy of removal from office (the aforementioned saving exceptions notwithstanding). It would be exceedingly unusual if Ford's inevitable motion for a stay was rejected. Whether or not he can get it in the fourteen days available, that's a bit of a murky question. But if he can get it in front of a court fast enough then he's almost guaranteed a stay, and that means the whole "Ford's out!" reaction that's been sweeping social networks is likely getting ahead of itself.

Again I'd also be surprised if the decision wasn't ultimately overturned on appeal. The analysis of Ford's section 4(k) defence seems pretty suspect, and I wouldn't expect it to hold up to scrutiny. But then I was also betting that Hackland wouldn't oust Ford in the first place, so what do I know? This morning's verdict came as a surprise, time will tell if more are to follow.

In any case, let's also take a moment to reflect on the ramifications of this decision. Regardless of your feelings about Mayor Ford (I'm a cyclist so you should be able to guess mine), it doesn't exactly feel vindicative to have him removed from office on a technicality. That's not to take away anything from the finding of a conflict, on the contrary I think it's well founded. But the fact that it's sufficient to remove him from office may lean in favour of arguments against the structure of the Act, and the nature of the City of Toronto institution. The decision will most certainly be used in this manner (regardless of its validity), with Ford's next platform inevitably sounding something like "Detangle the mess of rules," or "Straighten out the sticklers to get things done," or "[Insert witty 'Gravy Train' reference here]." Even if Ford is ultimately removed, this method of doing so gives him or his successor that convenient pariah platform to run on, just as he did (successfully) last time. Claim all the rule of law moral high ground you want, at the end of the day this way of getting him out of office will only widen the divide between his supporters and his opposition in a way that a democratic ousting by voters never would.

So Ford has received a pretty severe slap on the wrist. Was it deserved? Yes and no, and we'll see what an appellate court does with that. Will it matter? Maybe, but hopefully only in a positive sense of making accountability and professionalism important qualities in City of Toronto politics. Hopefully not by giving Ford a new platform or exacerbating the political disenfranchisement he was able to ride in on in the first place. Time will tell.

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