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Analysis: Rob Ford’s Conflict-of-Interest Decision

Parsing Judge Hackland's reasoning in his decision about the mayor.

Rob Ford before a public appearance today.

Today, Justice Charles Hackland issued his ruling in Magder v. Ford, better known as “Rob Ford’s conflict of interest case that got him removed from office.” In his decision, Justice Hackland deals with each of Ford’s arguments as to why he should not have been found to be in contravention of the Municipal Conflict of Interest Act, and explains why those arguments weren’t convincing.

Here is a summary of Hackland’s analysis.

Ford’s first defence was that the MCIA did not apply to violations of Toronto’s Code of Conduct for members of council. Ford based this on a public-policy argument, namely that the Code of Conduct, as written, does not allow a member under potential sanction for conflict to speak in his or her own defence. Justice Hackland agreed that there might be a procedural fairness issue with preventing councillors from discussing findings that were against them—such as the integrity commissioner’s report that started this whole chain of events—or potential sanctions (on the basis that an individual should have a right, generally, to speak in his or her own defence). But he did not agree that this issue could “provide a basis for restricting clear statutory provisions,” and, more to the point, even if Rob Ford had been allowed to speak in his own defence per the Code of Conduct, that still would not have excused his voting on the matter.

Ford’s second defence involving the inapplicability of the MCIA was that the MCIA was intended to apply to the City’s “business and commercial interests” rather than the ethical conduct of members of council. Hackland disagreed with this as well, pointing out that the MCIA broadly refers to “any pecuniary interest…in any manner” and there was no basis for the court to selectively read “any matter” to exclude Code of Conduct violations. Justice Hackland also noted that limiting the operation of the statutory provision was a constitutional remedy, and that the parties had not raised charter arguments in the proceeding. (This is important, because it potentially limits the ability of Ford to appeal the decision based on the constitutionality of the law.)

Ford’s third defence was that the city council resolution requiring him to reimburse the donors who had contributed to his football foundation was outside council’s powers as per the City of Toronto Act. This argument was based on the wording of the Code of Conduct at Article XVIII, which first states that Council “may impose either of the following penalties” (which are specified as a reprimand or suspension of pay), and then states that the additional penalties the integrity commissioner can recommend (which would include the ordered reimbursement) are outside Council’s powers. Justice Hackland did not agree with this argument about wording, suggesting that the other measures the integrity commissioner can recommend can be considered remedial measures rather than penalties, and further agreed with Magder that the repayment sanction was consistent with the wording of section 6.1 of the City of Toronto Act, which states that the City’s powers shall be interpreted broadly “to enable the City to govern its affairs as it considers appropriate.” (If there is a basis for appeal it is here. It seems Justice Hackland is essentially relying on this section to justify categorizing the integrity commissioner’s penalties as “remedial measures.” This is not to say that Ford’s argument here is strong, as it relies on essentially saying that the law was written with the intent to wholly ignore the integrity commissioner’s penalty powers.)

Once Ford’s arguments that the MCIA was inapplicable were exhausted, Justice Hackland turned to Ford’s arguments that the MCIA did not apply because the amount was insignificant or because his conflict was inadvertent or caused by an error in judgment. Justice Hackland dealt with these arguments more swiftly, noting that Ford’s objections on the record to paying back the money made clear that he did not consider the amount insignificant, that Ford deliberately chose to speak (and gave evidence on this at the trial) and thus inadvertence could not be his defence, and that (probably most damning) Ford’s lack of attendance at briefing sessions, failure to read or familiarize himself with the MCIA, failure to read the councillors’ handbook, and failure to seek out legal advice on this issue amounted to “willful blindness”—which is to say, in essence, that the “incompetence defence” Team Ford seemed to be advancing at trial did not work.

For these reasons, Justice Hackland found that Ford was in contravention of the MCIA. Justice Hackland discussed at some length that the MCIA, as written, did not allow him any discretion except in how long Ford would be disallowed from running for office, and suggested that the law be amended to allow future judges more discretion so that they would not be forced to do what His Honour did today.

This is to say: Justice Hackland was forced to hand out a severe penalty for what was, at best, a two-buck crime. Everybody knows this, and everybody knows that Rob Ford’s removal from office for voting on a resolution where his vote would not have changed the outcome would not have happened had there been other options that the judge could have pursued. But, on the other hand, had Rob Ford at any point evidenced a shred of humility, rather than the massive streak of mendacity and stubbornness which have become the defining traits of his mayoralty, Magder’s suit likely would have been dead in the water.

Rob Ford has already announced that he plans to appeal the decision. It is possible that he will succeed, although it is difficult to see how. Justice Hackland’s decision is extremely well-written and leaves very little room for argument: each of Ford’s defences is demolished in turn and, with the exception of the city-council-powers argument mentioned above, there is very little wiggle room. This is because Rob Ford made sure there wasn’t any wiggle room, and proudly, at that.

The effects of the ruling are still being debated. Particularly, there is some discussion as to whether Ford will be able to run in a potential by-election to select a new mayor, or if he must wait until the next regularly scheduled election in 2014 to put his name on a ballot. Justice Hackland wrote that he declined “to impose any further disqualification from holding office beyond the current term” and that seems to preclude the possibility of Ford running in a by-election, as that would take place this term. “Terms” are defined by the Municipal Elections Act as being the four-year periods that begin December 1. And, according to the City of Toronto Act, anyone taking office by filling a vacancy (as Ford would technically be doing—in essence, replacing himself) is considered to be holding office for the remainder of the term of the person they replace. We hope Judge Hackland will clarify his intentions on this part of his decision soon.

Christopher Bird was called to the bar in 2011. Prior to his call he was the managing editor of The Court, Osgoode Hall Law School’s jurisprudence blog. He currently practices family law at the Gene C. Colman Family Law Centre.

Comments

  • Anonymous

    Interesting to see Tories condemn a mandatory sentence and liberals celebrate it, eh? The reaction of Ezra Levant and Marni Soupcoff to it doesn’t say much for the reputation of UofAlberta and Stanford law schools, respectively.

    • http://twitter.com/gilmourtaylor Geoff Gilmour-Taylor

      I’ve got to agree with Justice Hackland, here: this case really does call for lesser penalties to be added to the law. (To a certain extent. I don’t think a formal apology goes far enough for conflict of interest.) Even given Ford’s absolute refusal to be held accountable for his actions, time and again, I think a 120-day suspension—without pay—is more appropriate than dismissal.

      • Anonymous

        Slippery slope…

        • http://twitter.com/gilmourtaylor Geoff Gilmour-Taylor

          I disagree. The judge said that Ford was not being deliberately corrupt. It’s not like the case was about skimming huge sums of money or putting friends in power. It was about not reading the Employee Manual and screwing up as a result. I don’t think that’s a firing offence, frankly. A suspension would give a reasonable person the opportunity to reflect on what they’d done and maybe correct their behaviour in the future. Ford may be totally unreasonable, but we should, legally, allow him the chance to prove himself.

          I’m generally not a fan of firing someone for the first mistake they make. Penalize them, yes, and make it a real penalty. But we get caught in the trap of having to hire or elect only perfect people, because any slip they make leads to a fall. Even in the case of someone as intractable as Rob Ford, we have to give them the chance to mend their ways.

          • Anonymous

            You had me until “first mistake they make”. Please crawl back under your rock…

            Also he had several opportunities to “mend” his ways. He thumbed his nose and this is what it got him.

          • http://twitter.com/gilmourtaylor Geoff Gilmour-Taylor

            Sorry, you’re right, “first mistake” was laughably bad. I meant that this is the first time since he’s been in office that he’s been caught contravening the law, as in he’s had a judgement against him. I’m overlooking everything that hasn’t resulted in legal action as well as everything that’s still before the courts.

            Now, while I don’t think Rob Ford personally is capable of reform, I think that anyone should be given a chance given only the facts in the scope of this law. Since we can’t make one law for good eggs and another law for assholes, I’d rather the good eggs law be applied universally. And that sometimes means assuming a legal fiction that someone who can’t be reformed can be reformed.

            Refusing to learn what his job entails is grounds for Ford to be voted out of office, but I don’t think it means he should have been legally removed. (However, I’m fine with suspending him for a significant amount of time without pay.)

          • Anonymous

            I think the only place we’re not going to see eye to eye is his removal. You do bring up some fair points concerning the extremities and it’s perhaps my own “willful blindness” because of how much I loathe the person.

          • http://twitter.com/gilmourtaylor Geoff Gilmour-Taylor

            No worries. We’ll both still be glad when he’s gone. And if he is found to have contravened election finance law, the point may be made moot.

          • http://twitter.com/gilmourtaylor Geoff Gilmour-Taylor

            And I missed the second half of your comment. I’d just like to point out this sentence from Hackland’s judgement: “I recognize that the circumstances of this case demonstrate that there was absolutely no issue of corruption or pecuniary gain on the respondent’s part.”

            This is what I’m basing my argument on. Ford has not been found guilty of corruption. If he had, there are a whole pile of legal punishments that I’d be in favour of.

      • Anonymous

        I think the judge got it exactly right — provided he meant Rob can’t run again until the regular term runs out in two years, and not before. Rob gets a time out to reflect on how an elected official should comport himself, and meanwhile he gets to do what he really loves, full-time. Win-win-win.

        • Anonymous

          He’s not going to spend the next two years reflecting on anything and you know it.

          • http://twitter.com/gilmourtaylor Geoff Gilmour-Taylor

            Heaven knows we’ve bent over backwards for Rob Ford, but we’ve got give him the chance.

            That said, if his appeal fails and he is prevented from running until 2014, he’s toast politically.

          • Ralphonso

            No, if that happens he’s win a second term no sweat in 2014. Perfect cause for his supporters to sweep him in to finish the job the enemy wouldn’t let him do.

          • http://twitter.com/gilmourtaylor Geoff Gilmour-Taylor

            Never happen. Right wingers are going to find someone who will get things done, not someone who is incapable of advancing their agenda. Everyone loves a martyr, but who votes for one?

          • Johnny Smith

            ya because there are so many “right wingers” in the city of toronto right?

          • http://twitter.com/gilmourtaylor Geoff Gilmour-Taylor

            If by “right winger”, you mean a white supremacist such as yourself, then, no. I don’t think there are many people in Toronto who are as far to the right as you are.

          • Dave

            The fact that you refer to Ford’s political opponents as “the enemy” speaks volumes.

    • VincentClement

      Karma is a bitch.

    • Anonymous

      I’m not sure that those who aren’t members of Ford-Nation are celebrating this. There is undoubtedly a fair degree of schadenfreude in evidence, but I believe the overall feeling is one of, “this is where minimum sentencing leads.”

      If the Judge had discretion it would have come out differently, if they don’t you can’t whine when it’s your tie caught in the machinery.

    • http://twitter.com/FredFlinstonte Fred Flinstonte

      When you see that the mandatory sentence is about losing an elected position and has nothing to do with jail time, your point becomes meaningless. Perhaps you meant it to be completely tongue-in-cheek… but the important distinction will surely be lost on some readers, so it comes across as willful deception.

  • sue

    If he is allowed to run in the by-election and “replace himself”, he’ll be back in. And this entire circus was for nothing. He hasn’t learned anything. His supporters are now out for sympathy and blood votes. He’s just waiting to say, “the taxpayers have spoken” and continue on. Do I want this? God no. But I can see it happening.
    thanks torontoist for the “now what?” article – I was hoping you’d do one.

  • Luckysond

    Nice, clear analysis. Thanks!

  • DC

    Thanks for this explanation of the ruling

  • bobdobbs

    I don’t necessarily disagree with the judge’s complaint that they should be given more sentencing leeway, but now that this law is under scrutiny, I feel that it is too generous in the allowance for ignorance as a defence. If there are any changes made to this law, the “i’m too stupid to know what I’m doing” defence should be removed for people operating at this level. Chrissakes! Our politicians are supposed to be smart and held to a high standard.