Conflict law is perverse

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dale cummings / WINNIPEG FREE PRESS

Rob Ford may have been a train wreck waiting to happen since the day he became mayor of Toronto two years ago, but many people knew that and they voted for him anyway. A judge, however, threw the people's choice out of office under the inflexible provisions of Ontario's Municipal Conflict of Interest Act.

The judge had no choice because the law says any member of council "shall" lose his seat if convicted under the conflict legislation.

Manitoba's legislation is nearly identical, meaning Mayor Sam Katz or any member of council would lose their elected positions if found guilty of conflict of interest, no matter how minor or trivial the matter. The mandatory removal from office would not apply if a judge determined the violation was inadvertent or if the legislation was violated "unknowingly."

The law in both provinces -- it may be similar in most jurisdictions -- is too heavy-handed in that it does not allow a court to consider a range of penalties appropriate for the offence.

Mr. Ford deserved a stiff fine, an order of restitution and a good dressing-down, but it is debatable whether the actual offence warranted removal from office, particularly since the case was more about hubris and "wilful blindness" than actual corruption.

The Province of Manitoba has separate conflict legislation for MLAs, but it is not nearly as draconian as the municipal law.

Under the Legislative Assembly and Executive Council Conflict of Interest Act, MLAs could be forced to forfeit their seats, but a judge also has a choice of suspending the member for 90 sitting days of the house, a fine of $5,000 or an order of restitution.

A court, in other words, has the opportunity to make the penalty fit the crime.

A provincial spokeswoman says the discrepancy is related to the different structure of government. In the parliamentary system, opposition MLAs do not have the same influence or decision-making authority as members of the ruling party.

The law must be flexible, the spokeswoman says, to reflect the different degrees of power cabinet members, government back-benchers, and the opposition wield.

Members of municipal councils, on the other hand, have equal votes -- the mayor's vote is just one among many -- theoretically giving them the same level of decision-making authority.

The province's view is all council members have the same level of influence. As such, any conflict at the municipal level is gravely serious, or so the province says.

The argument for two separate levels of accountability, however, fails to recognize that even at the municipal level, some offences are not as serious as others.

Some councillors -- members of executive policy committee, for example -- may be more culpable because of their relatively greater influence on policy and issues, despite the province's view that it is a council of equals.

If a judge can weigh the seriousness of an offence the legislative assembly committed based on the facts of the case, then he or she should be able to do the same for municipal councils.

The idea of two sets of conflict laws for different classes of elected officials -- one that automatically fires some politicians, and another that allows discretion -- is perverse and should be changed, but the province says it is satisfied with the law.

Mayor Katz is facing an allegation that he wrongly entertained other councillors and city staff at a Christmas party held in a restaurant he owned at the time at taxpayer expense.

The mayor is confident the case will be tossed out of court, but if he were convicted and the judge ruled there were no extenuating circumstances, it would be grossly unfair if he was removed from office.

More importantly, it would be an usurpation of the democratic process and the right of the people to freely select their leaders.

Republished from the Winnipeg Free Press print edition November 28, 2012 A12