by Daniel Gogek*
When Justice Hackland renders his decision in the now-famous Toronto Mayor Rob Ford ‘conflict’ case, which could be any day now, he is virtually certain to find that the case, contrary to the widely reported views, actually wasn’t a conflict case at all.
Justice Hackland will no doubt explain this in clear detail, and it will be a welcome day, since the public has so far seen little more than misleading and muddled confusion on the matter.
The judgment will almost certainly make this key finding: there was no ‘conflict of interest,’ and therefore the Municipal Conflict of Interest Act simply didn’t apply.
How is can this be so? Let’s review the basic facts. In August 2010, Toronto City Council passed a motion without debate that imposed a financial penalty of $3,150 against Mr. Ford for allegedly breaching the Toronto Code of Conduct that governs Councillors, a Code adopted in 2006. According to one report on the meeting, several Councillors organized the motion to go through without debate as they did not want to give Mr. Ford an opportunity to speak.
This year, on February 7, City Council dealt with the matter again, namely a motion to reverse the August 2010 decision and cancel the penalty. This time, Mr. Ford was given the opportunity to defend his view that the penalty was inappropriate. The Council voted 22-12 to cancel the penalty, and Mr. Ford voted with the majority.
As everyone knows, it was Mr. Ford’s speaking to the matter (and then voting) that was the basis of the claim that he breached the Municipal Conflict of Interest Act (MCI Act). Rather than portraying his speaking as an interest in defending himself, the case characterized Mr. Ford as having a ‘conflict’ of interest, and that since he spoke and voted he allegedly violated the MCI Act.
Needless to say, the case attracted tremendous press coverage, mostly because the MCI Act gives a judge the power to remove a councillor from office, and the prospect that a judge could remove Toronto’s Mayor from office generated headlines everywhere.
So let’s ask the legal question at the heart of this case: are there in fact clear rules on how Councillors are allowed to speak and vote when a Code of Conduct matter comes before Council?
The short answer is yes, but they come from our longstanding rules of procedural fairness, not the MCI Act. Those who sought to humiliate Mr. Ford by asserting he did not understand the Conflict of Interest Act would now do well to read the findings of Justice Cunningham in his October 2011 Report of the Mississauga Judicial Inquiry. Justice Cunningham, an experienced Ontario judge, gave us clear guidance on all these rules over a year ago.
In his Report, Justice Cunningham made it clear that
“a member of a municipal council should have the opportunity to respond at council to a damning report or to a recommendation that a penalty be imposed under a municipal code of conduct. [See page 173.]
Indeed, he set out an entire section called “procedural fairness,” and outlined how procedural fairness must be applied when enforcing municipal codes of conduct. As we all know, this means that when government officials (such as Toronto’s city councillors) are given the power to accuse a person of a breach under a public code and impose a penalty, they may do so only by following the basic rules of procedural fairness or ‘natural justice.’
The rules are simple. There are just two. The first is the opportunity to be heard (the rule known in latin as ‘audi alteram partem’). Justice Cunningham stressed no less than three times how this rule is so fundamental here. Indeed, he said that these municipal Codes of Conduct (he focused on Mississauga’s Code, which is virtually identical to Toronto’s) should be amended to “recognize explicitly the need to hear from a member” before a penalty can be imposed (page 179). Toronto’s Code of Conduct currently says nothing.
For those who might suggest the MCI Act is clear, Justice Cunningham describes in several passages how the current Act is unclear and needs amending. He says it should be written in simpler language, and, for example, should have a preamble to clarify its scope. And in Recommendation 14 he said it needs to be changed to say explicitly that “nothing in the Act prevents a member of council from making submissions … regarding the imposition of a penalty under a municipal code of conduct” (pages 173 and 178). In other words, Justice Cunningham again clarified the key point: it would be absurd to apply the MCI Act because if you did you’d violate a councillor’s basic right to be heard.
So did Mr. Ford have a right to speak on February 7? Yes, unequivocally, based on the rules of procedural fairness. He also had the same right at the August 2010 meeting, and since he was not then given an opportunity to speak, Mr. Ford’s right to procedural fairness was arguably violated at that meeting.
What about the issue of Mr. Ford’s voting on February 7? This is exactly what the second of the two basic rules of procedural fairness deals with. It says that no one can be a judge in his or her own case (the latin rule known as ‘nemo iudex in causa sua’). This means that, yes, the rules should provide that the accused councillor is not entitled to vote in his own penalty matter. Again, this is why Justice Cunningham stresses that the rules in these Codes need to be cleaned up.
At the end of the day, the real question is what should be done once the judgment comes down. Those who accepted the widely reported view that Mr. Ford had a ‘conflict’ will no doubt be surprised when they get the news that a councillor speaking to his own penalty matter under Toronto’s Code of Conduct was and is not only not a conflict, it’s actually a councillor’s right. Once that news sets in, it should be clear it’s time to get busy implementing Justice Cunningham’s many recommendations and clean up all these rules.
*Mr. Gogek is member of the bars of Ontario, New York and Quebec, and is based in Toronto, Canada