Tuesday, 27 November 2012

The Mayor, Bias, Procedural Fairness, and Democracy

Plenty of cyberink has already been spilled on the removal from office yesterday of Toronto mayor, Rob Ford. Hackland J.'s decision has aroused surprise, support, calls for reform of Ontario's Municipal Conflict of Interest Act, and, worst of all, bad sporting metaphors. While Hackland J.'s conclusions and interpretive approach are perfectly respectable, I do not think they are correct, as I will explain in this post. On first reading, I thought Hackland J.'s findings of fact were damning enough to give Ford little leeway on appeal. I am now not so sure.

To preview my argument, I think that Hackland J.'s interpretation of some of the statutory provisions is questionable and that his interpretive approach does not properly take account of context and the purposes of the Act. I will address the interpretations I disagree with in the context of explaining the facts of the case and then turn my attention to context and purpose. I should note that there are other questions too, in particular, whether the Act applies at all, but I won't address them in this post.

Ford was reprimanded by Toronto's Integrity Commissioner for using City of Toronto resources in aid of a private football charity. The Commissioner recommended to the Toronto City Council that Ford repay the $3,150 his charity received. In determining whether to impose the sanction, Council held a meeting and a vote.

By virtue of his participation in the meeting and his vote, Ford was said to have violated s. 5(1) of the Act. This provision reflects the traditional concern of the common law rule against bias to ensure impartial decision-making:
Where a member, either on his or her own behalf or while acting for, by, with or through another, has any pecuniary interest, direct or indirect, in any matter and is present at a meeting of the council or local board at which the matter is the subject of consideration, the member,
(a) shall, prior to any consideration of the matter at the meeting, disclose the interest and the general nature thereof;
(b) shall not take part in the discussion of, or vote on any question in respect of the matter; and
(c) shall not attempt in any way whether before, during or after the meeting to influence the voting on any such question.
Hackland J. concluded that Ford's financial interest in avoiding the sanction amounted to a "pecuniary interest" for the purposes of s. 5. Ford had argued that s. 4(k) should apply. This provision qualifies the pecuniary interest test (thereby bringing it into line with the Canadian approach to impartiality) in circumstances where the interest "is so remote or insignificant in its nature that it cannot reasonably be regarded as likely to influence the member". However, Hackland J. held, as a matter of fact, that the mayor's public declarations that he considered the matter significant rendered the s. 4(k) exception inapplicable.

This conclusion may be appealing, but I am not sure it pays adequate respect to the terms of the statute. Section 4(k) uses the phrase "reasonably be regarded". This seems like an objective standard. However, Hackland J. took a subjective approach by focusing on Ford's intentions (see para. 43). This leads to the strange conclusion that if a councillor were given a reprimand and a symbolic, nominal fine -- of, say, $10 -- they would violate s. 5(1) by declaring they thought the matter to be significant and participating in and voting on the motion. Indeed, I am not sure that, on Hackland J.'s approach, a declaration would even be necessary. Surely the fact that a councillor participated and voted would be ample evidence that they considered their pecuniary interest to be "significant". Stretched to its logical conclusion, Hackland J.'s interpretation of the Act is less appealing than on first sight.

In any event, s. 10(1) provides that on finding a violation of s. 5(1), a judge "shall, in the case of a member, declare the seat of the member vacant". There is a saving provision, however, in s. 10(2). If a member participated and voted based on a good faith error of judgment, their seat need not be declared vacant. Hackland J. found, as a matter of fact, that Ford did not fall within the saving provision, because he had given "little or no consideration" to the terms of the Act (para. 55).

But Hackland J. also held that the burden of proof was on Ford to demonstrate that he had made a good faith error of judgment (paras. 50 and 59). It is reasonable to suspect that this finding coloured Hackland J.'s treatment of the evidence in a manner adverse to Ford. However, no explanation was given for this conclusion. My admittedly hasty review of the cases on s. 10(2) does not reveal any binding authority on point. While placing the burden on a party claiming an exception usually makes good sense, I am not sure that it makes sense here, given the drastic consequences.

These questions are likely to be explored further in Ford's appeal.

This brings me to my more general criticism based on context and purpose. Hackland J. maintained throughout his judgment that the statutory provisions were "clear", a point of view shared by some commentators. Indeed, the provisions are clear, but only if one reads them literally, without regard to context and purpose. In fact, saying that a statutory provision is "clear" simply announces a conclusion: it is only "clear" if it conforms with the interpreter's preferred approach to reading the statutory provision in question. To say that ss. 5(1) and 10(1) are "clear" is to ignore context and purpose.

The context here is that the provisions (a) amount an egregious denial of fair procedures, preventing a councillor even from speaking in his or her own defence when his or her reputation is impugned. This despite the fact that the right to procedural fairness at common law in Canada is said to be "autonomous" of any particular statutory provision. Reading a statute in such a way as to deny an individual the opportunity to answer his or her critics gives no weight at all to this important background principle.

The provisions also (b) compromise the constitutional principle of democracy by allowing a judge on the motion of a citizen to remove an elected official from office. That the Act was itself adopted democratically is no answer to any objection based on the democratic principle. The Act does not speak for itself: like all pieces of legislation, it has to be interpreted; and it should be interpreted to minimize the damage to constitutional fundamentals.

This is relevant context, which an interpreter of the Act should not ignore.

Moreover, the purpose of the legislation is, quite plainly, to prevent corrupt crooks from benefitting from backhanders. It is not aimed at politicians who seek to protect their honour or save political face, as Ford did. The reason the matter had "significance" for Ford -- or for my hypothetical councillor slapped with a $10 fine -- was less because of the amount involved than what it symbolized.

Accordingly, Hackland J. should have paid more attention to the relationship between ss. 5(1) and 4(k). Having regard to the context and purpose of the Act, an objective test is established by s. 4(k) in order to prevent politicians from participating in discussions of and voting on motions from which they would gain an illicit financial advantage. Objectively speaking, Ford simply did not have a "pecuniary interest" which would justify depriving him of his right to speak and vote.
A similar exercise might even be possible in respect of s. 10(2) (although in light of the factual findings against Ford, this is a tougher sell). Isn't invoking your right to fair procedures, even wilfully, exactly the sort of "inadvertence or good faith error of judgment" the section envisages? Despite Ford's stubbornness and failure to read the rule book, there is still scope, once the egregious denial of the right to speak in one's defence in a democratic forum is taken into consideration, for a generous interpretation of s. 10(2).

In the meantime, the Ontario legislature should really considered modifying the draconian provisions of the Act. And in future, it might make sense for Ontario's municipal bodies to vote separately on reprimands and monetary penalties, allowing the politician in question to speak on the reprimand question before recusing himself or herself from the vote on the imposition of a monetary penalty.


  1. Didn't the integrity ruling make him personally liable for the $3k? You might criticize Hackland J. for relying too heavily on Ford's subjective assessment of significance (especially since his views, on the law, were dismissed). But who's assessment is this: "It is not aimed at politicians who seek to protect their honour or save political face". Yours? With respect, I don't think that's really on the same level of objectivity as the $3k. Or perhaps, objectively, independently wealthy politicians require larger sums to be involved?

    The second bit re 10(2) is also a bit muddled. Are you talking about the speaking or the voting? You say that the law might be reformed to separate them, but surely one can separate the two right now. As Hackland J. points out at para. 24, there are two things going on here. If Ford had spoken and then not voted, then you would have a better 10(2) argument. "[I]nvoking your right to fair procedures" can mean audi alteram, but surely not nemo iudex?

  2. Emmett Macfarlane28 November 2012 at 11:12

    Hi Paul,

    Well written, lucid post as usual, but I don't agree. Will make a couple of quick points:

    1) Any objective standard would find that a potential $3,150 personal loss constitutes a significant financial interest. So even if I buy your $10 hypothetical (and yes, a member on principle might vote and express significant interest about $10 and it might be absurd to say that should apply here) I'd say this exception fails on either an objective or subjective standard.

    2)On good faith error in judgment, it's hard to disagree with the judge about the significance of the Speaker's warning to Ford. He knew he was treading into conflict of interest territory and blithely went ahead. I would be troubled if he won on this point on appeal.

    3) I also disagree with you about the intent/purpose of the Act. It is not just about preventing corruption. It is also about ethical behaviour. The fact that Ford wasn't embezzling or committing fraud does not and should not allow him to escape the terms of the Act here - he voted on a matter in which he had a clear financial stake. We might disagree about whether the remedy imposed is overly harsh, but to me that's a policy question, not a constitutional one.

  3. Thanks for the comments. There are reasonable counters to each aspect of my argument and in applying the law to the facts, we could argue the toss all day long. I would not be surprised to see the Divisional Court split.

    In particular, I agree that, given the factual findings, my 10(2) argument faces an uphill battle. I appreciate that I did not separate the audi alteram partem and nemo iudex issues -- but my reason for doing so is that the Act does not make the distinction: it just bundles talking and voting into the same column. Indeed, my suggestion at the end is inspired by just this sort of consideration.

    I also agree that alternative readings of the purpose(s) of the statute are possible. That said, I don't think that the purpose of promoting ethical behaviour is furthered by the sort of prohibition at issue in this case. One could say that abiding by the Act is the standard for ethical behaviour, I suppose, but that seems a bit circular.

  4. Hard to know actual intent of mayor when he says to lobbyists "I'm the mayor, give to my charity". Harder to know their intent and expectation when they do so. Hardest to know what effect it has on mayor when their issue comes before council. So, strict prohibition makes sense. Refusing to abide by prohibition, refusing to acknowledge prohibition, refusing to comply with penalty, and then speaking and voting on whether to rescind financial (and personal) penalty, seems to me to be a clear violation of the Act, without justification.
    -- Bruce Woodrow, lawyer

  5. "Any objective standard would find that a potential $3,150 personal loss constitutes a significant financial interest"

    It doesn't require objectivity to see Ford had an interest. The mayor in his repeated rantings about the money, notably the purpose it was being put to, made it clear he felt that money was a significant sum. If he had kept schtum while his proxies worked out how to get him out of it, but then voted, his motivations would be harder to pinpoint and thus require recourse to some objective yardstick.

  6. Well, I stand corrected. I read the NP piece this morning and found your quote absurd, but reading this and other posts on your blog I find that, like all things, context is king.

    I thought the alternate sanctions imposed by council were the only viable grounds for appeal after reading Hackland's decision, although I think he laid out clearly why he chose what he did. Still there's room there to go another way quite clearly. By the way, I love the use of the French transalation of the law. Not being a lawyer I'd never considered the play our bilingualism could bring to this process and I heartily await the day lawyers must bring translators and semiotics professors to court to interpret all syntagmatic (sic) chains of meaning in one and across languages. Writing loophole free and clearly defined laws in two languages simultaneously has to be the ultimate test of communication, when I thought doing it in one was already a very high wall to climb.

    Back to the point, I did not think the pecuniary interest argument had any wiggle room, but you've clearly demonstrated the flaw in Hackland's decision. Ford's obvious belief in the significance does not prove pecuniary significance, but it's an easy syllogism to believe in and makes sense on its face. I don't think that means there wasn't a pecuniary interest, but the point is made clearly here, where the excerpted quote did not.

    I think you should ask NP to link your quote to the full text, because Corcoran's pastiche of your argument with his comes out quite different.

    I only bothered to post because I love it when I get turned around on things like this. It's losing an argument in my head because I learned something, which should be the goal of any good debate in my opinion. Thanks for the good read.

  7. Great read ! I am happy to have discovered your blog.