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.