Province warned of 'draconian' conflict punishment: Retired judge

By ,Queen's Park Bureau Chief
Published on TorontoSun.com
First Posted: Saturday, December 1, 2012 | Updated: Sunday, December 2, 2012

TORONTO - If the province had acted on recommended changes to "draconian" sanctions in Ontario’s Municipal Conflict of Interest Act Rob Ford might be fighting to remain mayor.

Former Justice Douglas Cunningham, who led an exhaustive inquiry into conflict allegations against Mississauga Mayor Hazel McCallion arising out of a controversial land deal, recommended a number of changes to the Municipal Conflict of Interest Act in his October 2011 report.

Those recommendations included the addition of alternative penalties such as a 120-day suspension or a formal apology.

"If the legislation had been amended as I suggested...I don’t think we would be in this situation, because one of the things that an amended piece of legislation would include would be lesser sanctions, and I think this case clearly cries out for some legislated change which would include lesser sanctions," Cunningham told the Sunday Sun.

PC Leader Tim Hudak said he would be prepared to change the legislation if requested by municipalities.

Any attempt to do so right now, NDP MPP Gilles Bisson said, is impossible because the Ontario government has prorogued the House and rewriting the sanctions would require the support of the Legislature.

Municipal Affairs Minister Bob Chiarelli said this week that the government is reviewing the legislation, and Cunningham said he believes the process is underway.

"But it’s just unfortunate that — if they were going to make some changes — that they hadn’t been made by the time of this lawsuit," Cunningham said. "In terms of the Municipal Conflict of Interest Act, this mandatory sanction it seems to me is draconian given that there are so many variations and shades of conflict — and especially in a case where there’s no financial gain, there’s no fraud, there’s nothing at all in this case to suggest that Mayor Ford was trying to feather his nest."

Once a municipal politician is found by the courts to have contravened the MCIA — and, as in the case of Ford, the judge believes it was not done inadvertently or by an error in judgement — then there is only one penalty option.

Justice Charles Hackland ordered Ford’s seat vacated.

Cunningham recommended in his report, "Updating the Ethical Infrastructure," that judges retain the option of removing an offender from office, but that it not be mandatory.

"And I rather suspect, if I read between the lines in Justice Hackland’s decision, that if he’d had some other options, he probably would have gone to them rather than the one that he was forced, quite frankly, to engage," Cunningham said.

Lawyer Clayton Ruby, acting on behalf of citizen Paul Magder, brought an application under the MCIA to remove Ford from office for speaking to and voting on a matter on which he had a pecuniary interest.

Ford had participated in a council discussion and voted on a motion to make him pay back $3,150 he had received from donors for his football charity after using his office letterhead to solicit the financial support.

The city integrity commissioner had investigated the letterhead issue and concluded that it was a breach of the municipal code of conduct — the solicited included lobbyists, clients of lobbyists and a company which does business with the city — and recommended council order Ford to give them back their money.

Under the MCIA, councillors with a conflict on a matter must excuse themselves from the council debate in its entirety, not argue their case and certainly not vote on it.

Giving members an opportunity to declare any conflicts of interest is literally at the top of every board agenda.

Justice Hackland found that Ford had breached the Act and done so willingly, rejecting the defence that the mayor had participated by accident or in error.

"It is difficult to accept an error in judgment defence based essentially on a stubborn sense of entitlement (concerning his football foundation) and a dismissive and confrontational attitude to the Integrity Commissioner and the Code of Conduct. In my opinion, the respondent’s actions were characterized by ignorance of the law and a lack of diligence in securing professional advice, amounting to willful blindness," Hackland says in his judgment

The judge also writes that, "there was absolutely no issue of corruption or pecuniary gain on the respondent’s part. His contraventions of the municipal Code of Conduct involved a modest amount of money which he endeavoured to raise for a legitimate charity (his football foundation), which is administered at arm’s length through the Community Foundation of Toronto."

Ford, who has been in office for two years after running a very successful "respect for taxpayers" election campaign, is appealing the decision.

The MCIA applies to those who sit on local boards, governing everything from cities to libraries to police services to long-term care homes.

It gives the public an opportunity to hold their politicians to account if they personally profit from their positions of trust.

From time to time, usually when someone runs afoul of the provincial legislation, there are calls for it to be reviewed and updated.

Those familiar with the law say that it is actually more stringent than the conflict rules which apply to provincial and federal politicians.

Ford had the benefit of an integrity commissioner’s advice but members of hundreds of smaller councils and boards must often seek outside legal advice to ensure they don’t cross the law and lose their jobs.

One of the people who often provides that guidance to board members is Stephen D’Agostino, a lawyer with the Toronto firm of Thomson Rogers.

Because of the consequences of the Act, councillors generally take it very seriously and will not take part in any activity that’s deemed even slightly risky, he said.

While the ‘one strike and you’re out’ sanction seems harsh, it’s also important that elected officials be held to the highest standard of conduct, that they not use their offices for personal gain, D’Agostino said.

Councillors need a process that is quick and easy to determine if they are in conflict.

As well, if a councillor is "offside," then there needs to be a tool in the MCIA to ensure that an onerous burden of proving a conflict doesn’t fall solely on a member of the public, D’Agostino said.

Cunningham’s report recommends a number of options to toughen the MCIA — and one of them is allowing the attorney general, as well as a member of the public, to bring an application.

D’Agostino said any attempt by provincial politicians to rewrite the legislation should address this issue.

"If we have a privacy commissioner who makes sure that our e-mails aren’t misused, surely the Ontario government should be standing up and saying we’re going to make sure that everything’s right in municipal council chambers too," D’Agostino said.

Currently, a citizen who believes that their local municipal politician is in conflict of interest must within six weeks of learning of it make an application under the MCIA, he said.

The legal bills for the citizen can easily hit $80,000-$100,000, he said.

"You can’t even start one of these things in Toronto for less than $30,000 or $40,000, and if it gets complex it’s going to be double or triple that," he said.

If the public member is defeated in court, then that person will likely be on the hook for the other side’s legal costs.

Councils usually take out defence insurance which provides members with up to $100,000 to battle MCIA applications, although it likely doesn’t cover costs if the councillor loses the case,

While reviewing the Act, the Ontario government should also consider bringing Queen’s Park under similar rules, he said.

"I’m a real believer in integrity in government and I don’t think any level of government, our politicians, should be taking care of their own business," D’Agostino said. "That’s just inappropriate.

"Why does this just apply to municipal politicians?"

*****

The Mississauga Judicial Inquiry recommendations for the update of the Municipal Conflict of Interest Act :

  • Provide a preamble with broad overarching principles to clarify the intent of the Act.
  • Change "pecuniary interest" to "private interest" to ensure legislation captures all problematic activities.
  • Deem the interests of the official’s children, spouse and other relatives to be the interests of the official.
  • Existing sanctions, such as removal from office, should remain but none should be mandatory.
  • Lesser sanctions should be available to the judge, including suspension up to 120 days, probation with oversight, removal from a committee of council, a public reprimand from the judge or a formal apology.
  • In addition to allowing electors to bring applications under the MCIA, the law should be amended to allow the Attorney General to do so as well.
  • The MCIA should be amended to recognize the role of the integrity commissioner to investigate and report on matters covered by the Act.
  • The MCIA should make it explicit that it does not prevent a member of council from making a submission in response to a report of the integrity commissioner or a penalty under a municipal code of conduct.