by Daniel Gogek
As you saw from last week’s post (The Rob Ford ‘conflict’ case: Why it will be dismissed), the case wasn’t a conflict case at all. It’s a case of a public body – Toronto’s City Council – imposing a penalty on a member and the Canadian law that requires giving the accused council member, in this case Rob Ford, the opportunity to be heard and thus speak to the matter at Council.
How is it possible that there was such confusion on this issue of ‘conflict?’ The short answer is that the whole phenomenon of cities enacting a Code of Conduct for their councillors and mayor – and enforcing these Codes – is relatively new.
Confusion reigned in the Rob Ford case because Toronto’s Code, like Mississauga’s and many others, contains a big hole in it: it sets out virtually nothing on how it is to be enforced.
Some cities in the world have done a more thorough job: they have clarified their rules on enforcement.
Indeed what is fascinating is that there is now a trend emerging around the world to adopt these kinds of Codes. It’s a welcome trend, for it’s a real opportunity to define the qualities and standards we expect of anyone elected to high office in any city.
One city in Canada that has managed to clarify its rules on enforcement is North Vancouver. North Vancouver’s Code of Ethics for Councillors expressly states that: “to ensure procedural and administrative fairness, a member who is accused of violating any provision of the Code” must be given the opportunity “to respond to these allegations.” Furthermore, “before considering a sanction, Council must ensure that a member has … an opportunity to be heard. “ (Article 16). Needless to say, if such language had been in Toronto’s Code, a ‘conflict’ case against Mr. Ford wouldn’t even have made it out of the starting gate.
The language in North Vancouver’s Code is very close to what Justice Cunningham recommended in his October 2011 Report of the Mississauga Judicial Inquiry. Justice Cunningham wrote that “members of council should be afforded procedural fairness” which he said means expressly that they “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” (page 178). He thus recommended “that the current Rule No. 18 of the Mississauga Code be revised” to recognize this (page 179). Toronto’s equivalent of Rule No. 18 is section 18 in the Toronto Code; it currently says nothing on enforcement and needs a similar amendment.
It’s worth stressing that Justice Cunningham was merely stating the public law that already applies when a public body sits and enforces a Code. The leading case handed down over twenty years ago was Knight v. Indian Head School Division No. 19 (1990), where the Supreme Court of Canada set out a three-pronged test: when a public body’s decision is administrative and final in nature, is made under a statute or code, and affects the interests or rights of the accused person, then the rules of procedural fairness must be followed. This is exactly what’s happening when a public body like Toronto’s City Council seeks to impose a penalty on a councillor accused of breaching the Code of Conduct. It’s what happened when City Council sought to impose a penalty on Rob Ford.
All of this of course raises the question whether each individual city should have to figure all this out for itself, or whether we should pool our talents and create model solutions that numerous cities and towns can adopt.
In that regard, one country that has done this well is South Africa. In 2000, South Africa adopted its Municipal Systems Act, a comprehensive law for city governments throughout the country that also included a model Code of Conduct for Councillors (see Schedule 1).
When, for example, Johannesburg adopted its Code of Conduct for Councillors, the city was able to take advantage of this model Code.
Their model Code also clarifies explicitly that the enforcement of the Code and a penalty on a member “must be in accordance with the rules of natural justice” (Article 14). (‘Natural justice’ is another term in the common law for procedural fairness.) In addition, a legal commentary entitled Enforcing the Code of Conduct for Councillors underscored that the model Code confirms that when a councillor is accused of a breach, “a fair hearing must take place …[and] the councillor concerned should be notified of the intended action to be taken against him or her and should be given a proper opportunity to be heard” (pages 8-9).
This is also a good example of the benefit of creating a model Code that all cities can use, perhaps tailoring it as they see fit. Why on earth should we waste precious city resources by having each city try to reinvent the wheel?
We should also step back here and look at the big picture. For the first time in history, we are adopting explicit Codes of Conduct to govern the politicians who seek to serve as mayors and city councillors. We should not squander this extraordinary opportunity to set out in clear terms the qualities, character, and ethical standards we expect of the people we elect to these positions and in whom we place our public trust.
[Ed. note: the column has been updated to reflect the correction noted in John Gregory's comment about the Schedule Number for the South African Code.]