Toronto City Council has a Code Of Conduct for its members. But the penalties legally available for enforcing it are limited to two: a reprimand or a suspension of pay.
This was learned the hard way, just last week, when the Divisional Court ruled that the mayor was not in a conflict of interest after all.
In addition to the two penalties spelled out in the City Of Toronto Act, council’s own Code Of Conduct also enumerates a series of “other actions” the integrity commissioner may recommend to council, including “repayment or reimbursement of moneys received” and a “request for an apology to council, the complainant, or both.”
This is the ground on which Integrity Commissioner Janet Leiper stood when, in an August 2010 report, she recommended that council order then-councillor Rob Ford to return $3,150 he had solicited from lobbyists for his football foundation.
This document – a thorough examination of the suite of dubious practices in which Ford engaged while raising funds for his football charity – stands as Leiper’s masterpiece, the best character study of Ford anyone had authored to that time.
After concluding that he had breached three sections of the Code Of Conduct, Leiper considered the possible sanctions. First she revealed that she had suggested six possible “corrective steps” Ford might take to remedy aspects of the situation – but that he had opted not to take any of them.
Leiper then explained that she’d considered recommending council order Ford to apologize, but decided his words “would not be sincere.” She also considered requesting that council make Ford “repay the value of staff time used in administering his football foundation,” but decided that his failure to keep records meant she could not determine the precise amount of time his staff spent on his personal cause.
So she chose a sanction proportionate to the most problematic of all of Ford’s behaviours: soliciting donations from lobbyists. Their total value was $3,150, and it seemed only logical that this cash should be returned.
The problem, as we would only learn two and a half years later, was that Leiper did not approach her task as a matter of restoring balance to the universe. Rather, she came at it as an effort to drive through Ford’s thick skull that his actions were unacceptable.
“Such a sanction,” Leiper wrote in a passage the Divisional Court would later quote disapprovingly, “would convey council’s expectation that Councillor Ford is responsible for ensuring that he does not ask for or receive benefits in violation of the Code Of Conduct.”
In his November 2012 decision to remove Ford from office, Justice Charles T. Hackland determined that repayment was a remedial measure, but the appeal court looked at Leiper’s words and deemed that she had used the “language of deterrence and denunciation.”
That is, what she handed down was not a remedy but a penalty. And the court had decided that the words in the City Of Toronto Act were to be interpreted literally and narrowly: where it says that council “may impose either of the following penalties” (a reprimand or suspension of pay), it means that those are the sole punitive actions allowable.
The court further determined that although the Code Of Conduct allows council to order the “repayment or reimbursement of moneys received,” that could not be invoked in this situation: an arm’s-length body accepted donations on the foundation’s behalf Ford did not himself receive the money.
Because the court ruled that the city had no mandate to order Ford to repay the money in the first place, they reasoned that his February 2012 vote to rescind the order was not a violation of the Municipal Conflict Of Interest Act. One cannot have a pecuniary interest in a nullity, they wrote.
This raises the question of how an integrity commissioner is supposed to fulfill her statutory duty to ensure compliance with the code if she’s not given the tools to do so. Many of the lawyers’ arguments in the conflict of interest proceedings invoked duelling precedents regarding the scope of municipal authority. Any case that calls into the question the limits and extent of municipal powers should obtain as much clarification as our judicial system permits.
Clayton Ruby, who led the conflict suit against Ford, is now seeking leave to appeal to the Supreme Court of Canada. The current consensus is that leave is very unlikely to be granted. But then, just a month ago, the consensus was that Justice Hackland’s decision that kicked Ford out of office was virtually airtight.
jonathang@nowtoronto.com | twitter.com/goldsbie
