Cheol Joon Baek
Mayor Rob Ford just had one of the best weeks of the last six months thanks to the ruling by a three-judge panel of the Divisional Court that he would not be removed from office.
But while this curtails further discussion of a mid-term election, we shouldn't rush to put the case behind us. One of the big lessons that emerges from this sordid situation is that the current oversight process is not robust enough to deal with serious challenges, particularly those involving recalcitrant elected individuals like Ford.
The ruling only tells us how quickly the province has to move to reform the City Of Toronto Act (COTA) and the Municipal Act. And if the office of the integrity commissioner is not given broader powers, the whole process is a mockery.
In the matter of Ford's appeal, the courts basically determined that the integrity commissioner erred in recommending that council order Ford to repay donations to his football charity.
The judges ruled that she didn't have this recourse because COTA offers only two sanctions in the case of a misdeed: the integrity commissioner can recommend that council censure the offending councillor or mayor, or suspend his or her pay for up to 90 days.
On the other hand, the Municipal Act determines that if a conflict of interest case gets to court, the only penalty for being found guilty is removal from office, although even a guilty party can escape sanction if the court believes the person acted without knowledge of his of her transgression or transgressed unintentionally, or that the sum involved was inconsequential.
In Ford's appeal case, the court concluded that council had acted outside its bounds in demanding the mayor pay back the money, and so the entire process was null and void, meaning no guilt or penalty could be assigned by the court.
But let's backtrack. For most politicians who commit minor non-criminal infractions, the threat of public shaming by a report of the integrity commissioner and the resulting media coverage would be a quite sufficient deterrent.
The problem is that Mayor Ford is no ordinary politician. He's endeared himself to a certain sector of Torontonians, and their perception of him is much less affected by negative coverage than is typical. He also seems to genuinely not care about his public persona.
This leaves him free to do and say pretty much whatever he wants. He's all the more immune since he cares little about building consensus beyond his base.
In fact, in over six years, Rob Ford, first as councillor and then mayor, is the only elected official to consistently run afoul of the code and the integrity commissioner. And for those who think the initial rebuke of Ford by the integrity commissioner was politically motivated, consider that he was quite a marginal figure in the last council. Other right-wing councillors wielded more power, yet were seldom investigated.
Indeed, the integrity commissioner received many requests for probes last term, but few, if any, were ultimately deemed viable.
Major changes are required in the Municipal Act. For one, a wider range of sanctions needs to be available to judges so they can assign appropriate punishments to fit offences: suspensions with and without pay, making acts of retribution and, for serious infractions, removal from office.
Secondly, the Municipal Act and City Of Toronto Act need to be rewritten so the integrity commissioner can impose penalties directly. Another option is the creation of an independent panel, perhaps like the three-citizen body overseeing election expenses. Most importantly, any changes need to insure that the support of an official's colleagues on council is not required to enforce a sanction. Enforcement of rules should not depend on whether an elected rep has political support.
Councillors and mayors unhappy with judgments would always have recourse to the courts in extreme circumstances. Indeed, had such a panel been in existence when Ford first transgressed, it might have been able to enforce his repayment and spare us the long and damaging legal fight that may yet be appealed to the Supreme Court.