Terence Corcoran: After Rob Ford’s court victory, expect a cold winter for the Toronto Spring
Terence Corcoran, National Post Staff | Dec 6, 2012 11:35 AM ET | Last Updated: Dec 6, 2012 3:03 PM ET
The Toronto Spring movement’s revolutionary plot to overthrow Mayor Rob Ford lost momentum Wednesday after an Ontario Superior Court judge ruled that Mr. Ford can stay in power until his alleged conflict of interest case is reviewed by an appeal court. So now the left has to regroup and set up camp some distance from city hall, like a lost Occupy movement, pending an appeal that won’t be heard until early next year.
It is conventional wisdom on the streets and among the commentariat that Mr. Ford will lose the appeal. On the ideological barricades, it is a given that Mr. Ford cannot overcome the legal wisdom in Justice Charles Hackland’s Nov. 26 finding that Mr. Ford is guilty of breaching the Municipal Conflict of Interest Act (MCIA), and must be removed from office.
At The Globe and Mail, Marcus Gee wrote: “My guess: He loses his appeal.” In the National Post, Jonathan Goldsbie said “no knowledgeable expert” has offered a “legally sound” explanation of why Mr. Ford might win an appeal, aside from “anonymous lawyers.” That’s not true, but more later.
Mr. Ford’s lawyer, Alan Lenczner, outlined his grounds for appeal in court Wednesday. I wasn’t there, but based on an outline of his arguments, the facts in the original decision and comments from outside lawyers lead me to the conclusion that Toronto Spring will be out in the cold through the winter and beyond.
Let’s begin with the charge, which was based on the fact that on Feb. 7. 2012 Mayor Ford did in full council meeting speak and vote on a motion to rescind an earlier resolution that ordered him to repay $3,150 to contributors who donated to the local football charity bearing his name.
The judge ruled that by speaking and voting on the resolution, Mr. Ford violated the provincial MCIA. On this point alone the case looks shaky.
The act states that a council member “shall not take part in the discussion of, or vote on any question” where a member has any “pecuniary interest in” the matter. Since Mr. Ford sort of seemed to have a pecuniary interest in the matter — the $3,150 he was ordered to repay — the judge ruled that he had broken the law and therefore his council seat “should be declared vacant,” as provided in the act.
Case closed, say Mr. Ford’s political opponents. Not so fast. For starters, the MCIA itself is obviously aimed at preventing politicians from debating and voting on serious matters or decisions — say, a downtown re-zoning or the awarding of $100-million contracts to replace the city’s computer systems — that might produce personal financial gain.
The act is clearly aimed at corporate corruption. A councillor should not vote on such matters if he has an interest indirectly as a “shareholder in” or “director of” a corporation. Nor should he vote if he is a “controlling shareholder” of a corporation or “is a partner of a person or is in the employment of a person or body that has a pecuniary interest in the matter.”
The act, by the biggest of stretches, has no reasonable application to the Ford situation.
Paul Daly, associate law professor at the University of Montreal, says the MCIA is clearly not aimed at a Ford situation. The act, he said in an interview, is there to “prevent politicians from awarding contracts to their buddies, or making secret profits off the backs of taxpayers. That’s what you’re really worried about.” Mr. Daly adds, in a post on his Administrative Law Matters blog, that “objectively speaking, Ford simply did not have a ‘pecuniary interest’ which would justify depriving him of his right to speak and vote.”
Even the trial judge agreed that “there was absolutely no issue of corruption or pecuniary gain” on Mr. Ford’s part, a comment that — significantly — was repeated Wednesday by Superior Court Justice Gladys Pardu when she allowed Mr. Ford to stay in office until the appeal.
Furthermore, the $3,150 imbedded in council resolutions is an artificial pecuniary interest fabricated by other council members mostly to set Rob Ford up for embarrassment back in 2010. Then a councillor, Mr. Ford had used council stationary to solicit donations to his high school football charity — something he has admitted was “a mistake.”
Mischievous anti-Ford council members adopted the city Integity Commissioner’s recommendation to make Mr. Ford “reimburse” the $3,150 contributed by local businesses to the football charity. Under the City of Toronto Act, however, council had no authority to make any such order. Council can only punish Mr. Ford by either issuing a reprimand or by suspending Mr. Ford’s remuneration “for a period of up to 90 days.”
In other words: The council resolution ordering repayment was beyond council’s power to either impose or collect. That means the pecuniary interest that Mayor Ford is said to have voted on illegally was procedural fiction.
Mr. Daly at the University of Montreal says he believes Judge Hackland’s “interpretive approach does not properly take account of context and the purposes” of the MCIA. He adds that an appeal court will look at the original intent of the conflict of interest act and the Code of Conduct. “If [Judge Hackland] didn’t take into account the purpose of the statute, that would allow [an appeal court] to overturn his decision. If [an appeal court] thought it was wrong for city council to impose the sanction in the first place, they will overturn his decision.”
My guess: Ford wins his appeal — and the Toronto Spring movement runs out of movement.
