Ding Dongs

Rob Ford has been removed from office (or, as many of my friends have written on facebook “ROB FORD HAS BEEN REMOVED FROM OFFICE”). Let me tell you, that makes-a-somma people angry! Say, and this may surprise you, Christie Blatchford.

I haven’t been able to read past the fold, but that’s more than enough. Here’s her headline

Christie Blatchford: 383,501 Torontonians voted for Rob Ford — not one voted for the men behind his ouster

Let’s be clear about what happened in this decision. In fact, let’s let Ivor Tossell do it, because he gives the clearest breakdown of the actual run of events I’ve seen to date:

Rob Ford runs a football foundation. He tirelessly fundraises for it from people he meets, including developers and lobbyists, and lately he did it with city resources. This is against the rules. The city’s integrity commissioner entreated him over and over to follow these rules–another person telling him he can’t do this, can’t to that—but to no avail. And after years of breaking rules that merely put him on the hook for financial penalties, Ford finally broke the rule that cost him his job: He got up in council and argued that he shouldn’t have to pay just such a penalty. Then he voted against parting with the money. That’s a conflict of interest, and some of the finest lawyers in town weren’t able to convince the judge otherwise.

Given this context, the only way of reading Blatchford’s argument, I guess, is that politicians shouldn’t be be removed from office for breaking conflict of interest rules – because it’s undemocratic. This is weird, but common: People have this vision of a democratic system where you elect a supreme ruler for 5 years and dude gets to do whatever the hell he wants. That’s not how it works, nor how it should. Politicians, especially municipal politicians, are elected to do a job. Breaking certain rules are going to get you fired, though apparently gross incompetence and not showing up to work won’t. It seems totally reasonable to me that, where the employer has clear rules about not getting involved in decisions that impact your own finances, losing your job should be a possible consequence.

Lots of people who are happy to see Ford go have nonetheless hedged their glee with the caveat that “this isn’t the way that they want to see him go.” Some of the hand-wringing seems to side with the “it’s anti-democratic” side. Me? I have no qualms about politicians who break the rules getting kicked out of office before their term is up. Others, however, are worried about the potential political fall-out from the decision. No matter the reasons of those whose renditions of “Ding Dong, the Witch is Dead” are sung in slightly hushed tones, their argument is, on the one that  “the law’s the law” and so the judge had little choice but, on the other hand (thanks again, Ivor!): “The law is too crude an implement and deserves to be revisited.”

Again, I am not so sure. As easy as is to attack the lack of discretion the legislation gives the judge – it required him, once he found a breach which did not result from inadvertence, to “declare the seat vacant” –  I am not sure that people have really thought through the alternatives. Many, I suppose, would like to see a law that gave the judge a wider set of penalties to draw from, based on the severity of the offence. The problem, of course, is that people very seldom violate a law like this so egregiously, so blatantly, so audaciously. Which means that, unlike in criminal law, there is very little precedent for a judge to rely on.

If the law had provided room for discretion, the judge would, essentially, have to decide himself what the penalty should be for Ford’s misconduct. Should it have been less because the amount in issue was “only” $3500? Should it have been more because the violation was so brazen, as in cases where “punitive damages” are applied? Should it have been less because it was done so clearly out in the open and not hidden, or does that mean it was brazen and contemptuous of the rules and everyone else’s compliance with them, and should be punished more? Should it have been more, or less, because he got involved in a decision on not paying money he owed, rather than on, say, awarding a contract to himself? These all seem like difficult questions to me, and were the judge had discretion, the answer provided would be fraught with even more political overtones. Can you imagine that anyone would have been happy with this decision if the judge had found Ford guilty and, say, “only” fined him $10000? Or if he had let Ford stay in office, but banned him from running in the next election? What decision could the judge have made in such a situation which would have seemed non-political? The judge himself – the full text of the decision is here – apparently would have liked more wiggle room:

The mandatory removal from office for contravening s. 5(1) of the MCIA is a very blunt instrument and has attracted justified criticism and calls for legislative reform

I am not so sure. Once you accept that courts can remove politicians from office for fraud, it seems to me that a “zero tolerance” approach is the only way to prevent the decision-making process from taking on terrible political proportions. The law is good enough as-is.

To be clear, I do wish that Rob Ford had not been removed from office in this way. Thanks to people like Christie Blatchford, this case will be used to attack  the legal system and to boost  the idea that the left, somehow, does not play fair. It may also, paradoxically, increase Ford’s chance of staying in office. But I also wish that Toronto’s mayor was not such a blustering, arrogant buffoon that he would break fundraising rules for city councillors, violate conflict of interest rules, ignore legal advice, and assume that the rules did not apply to him. It is the fact that he is, and that he did, which ultimately provides the fodder for Blatchford’s thoughtless, incoherent tirade. Not the judge. Not the conflict of interest law. Not the complainants in the case. Once more, Tossell nails it: Rob Ford got himself fired.

As for the meat of the decision, the only defences  Ford had to rely on was that the rules weren’t actually the rules, that he broke them accidentally, or that the amount at issue was “insignificant.” Ford has said he will appeal. The judges rulings on the first two issues seem watertight. Which means, given that they have to rule under the existing law, they could keep Ford in office by deciding that the amount is “insignificant.” But let us be clear: this would be a court saying that, when a city official owes the city $3500, there are no consequences for him voting on whether he has to pay it or not. I imagine that many taxpayers wish they had the same luxury.

But back to Blatchford’s analysis,

Toronto Mayor Rob Ford has been given the boot from office because an opportunistic citizen hired a smart and politically savvy lawyer who found a club of an arcane statute with which to tie the hands of a judge who was willing to play ball.

That’s the short and dirty version of the bombshell that has dropped

She seems to be saying : i. the people who wrote a law allowing city councillors who brazenly, purposefully violate conflict of interest laws were wrong to do so. ii. the people who brought this case to the courts to see if the law had been broken were wrong to do so; iii. the court system was wrong for hearing the case, despite having absolutely no discretion over what cases to hear. Each of these propositions seems wrong to me; I cannot read any further.