Law Times

Page 4 NEWS Could mayor go to SCC despite clash of laws? not all people?" he asks. Normally, litigants arrive at the Supreme Court only after going through the Ontario oronto Mayor Rob Ford has sworn Court of Appeal. But s. 38, which involves aphe will fight his conflict of interest peals per saltum, a term that literally means conviction all the way, and according "by way of jump" in Latin, allows litigants to to an Ottawa lawyer who specializes skip the appeal court, Meehan notes. in Supreme Court of Canada advocacy, the The situation could be "a bit like a third mayor's battle could in fact find an avenue to world war where a retreating army blows up the country's top court. bridges behind them The decision that reand the allies quickly sults from Ford's appeal build a new floating to the Divisional Court, pontoon bridge to set to begin this week, get across the river," may not be the end of he adds. the road because of a Ford could still conflict between federal ask for leave to apand provincial laws, says peal from the Court Eugene Meehan, a partof Appeal, adds ner at Supreme AdvoMeehan, and when cacy LLP in Ottawa. declined on the baThe Municipal Consis of the Municipal flict of Interest Act, a Conflict of Interest piece of provincial legisAct, could take that lation, says the Divisionrejection itself as an al Court's decision will issue for appeal to the be final. It also says matSupreme Court. ters of conflict of interest But in order for can't be appealed at the the case to go to the Court of Appeal but it The rule that a Divisional Court decision is final is 'a delib- Supreme Court, doesn't say they can't go erate restriction of access to justice,' says Eugene Meehan. both sides have to to the Supreme Court, agree, adds Meehan, Meehan says. who believes there's a good chance the parties If the Divisional Court upholds Superior would consent if it came down to it. Court Justice Charles Hackland's decision, The Municipal Conflict of Interest Act Ford could still try to continue his fight to stay rule that a Divisional Court decision is final in office because of a little-known section in is "a deliberate restriction of access to justice," the Supreme Court Act that contradicts with says Meehan. "To some, it's juridically ofthe finality of the Divisional Court's ruling, ac- fensive. To others, it's an appropriate way to cording to Meehan.  manage judicial resources." Section 38 of the act states that an appeal If Ford's case reaches the Supreme Court, it to the Supreme Court "lies on a question of wouldn't be the first time a Canadian mayor's law alone with leave of that court, from a final conflict of interest case has made it there. In judgment of the Federal Court or of a court of 1934, then-Montreal alderman Arthur Angria province other than the highest court of final gnon appealed to the Supreme Court after his resort therein." recommendation of his three-storey property The clash between the two pieces of legis- for a police substation landed him in hot walation is obvious, says Meehan, who adds that ter. His appeal was dismissed. the issue boils down to what types of cases Then in 1979, the Supreme Court of Canamerit the Supreme Court's attention.  da ordered Gary D. Wheeler, who was mayor "There's a fundamental question at play of the City of Moncton, N.B., to leave office here: is it only some types of cases that go to after setting aside an appeal court's ruling that the Supreme Court or all types of cases? Is he acted appropriately in a case involving conCanada's national court a truly national court tracts entered into by the city with companies or is it a national court for some people but he was a shareholder and director of. LT BY YAMRI TADDESE Law Times T January 7, 2013 Law Times • Weakening law would send 'terrible message' Continued from page 1 reasons for the penalty of removal from office. "The statute is dealing with the integrity of the process for public officials," says Peter Jervis. "There have to be sanctions that are meaningful." Jervis, a Toronto lawyer, successfully acted for the applicant in Baillargeon v. Carroll, in which Superior Court Justice Jane Kelly declared a Catholic school board trustee's seat vacant. "The courts have held that the conflict of interest legislation must be interpreted harshly to control members given the highest level of trust," wrote Kelly, who noted the analysis wasn't about whether a politician intended to obtain a pecuniary interest in voting on a specific issue. In the Ford case, the Toronto mayor spoke to and voted on a city council motion in February 2012 on whether he must repay $3,150 in funds from lobbyists or companies that did business with the city and donated to his private charitable football foundation. City council had originally ordered Ford to repay the money in October 2010 when it approved a recommendation by Toronto's integrity commissioner for reimbursement as a result of violations of the code of conduct. Integrity commissioner Janet Leiper had asked Ford on a number of occasions to stop using official letterhead to solicit money for his private foundation. Ford also didn't respond to five requests by the integrity commissioner to comply with the 2010 order by council. The sixth time, he replied that the donors didn't want the money returned. While much has been made of the sanction imposed on Ford over $3,150, lawyer Greg Levine says the issue depends on whether the analysis is focusing on the amount of money or the conduct. "If this is a trust issue, then it is a serious matter and the consequences should be severe," says Levine, who specializes in government ethics and is the integrity commissioner in three southwestern Ontario municipalities. The defences available in the act, including error in judgment or inadvertence, give the courts "a lot of wiggle room" if the conduct doesn't merit removal from office, adds Levine. The findings of Hackland in the Ford case "are very important for integrity commissioners in Ontario and the integrity commissioner process," Levine suggests. Hackland, for example, rejected arguments by Lenczner that council couldn't order Ford to repay the money under the City of Toronto Act. "It was a reimbursement. That is important," says Levine. Levine was a member of the expert panel at the inquiry in Mississauga, Ont., in 2011. The recommendations by Justice Douglas Cunningham included amendments that would give judges more options in situations of conflicts of interest. Cunningham's recommendations also included simplifying the procedure for bringing a claim against a politician and expanding the act to include private interests and not just pecuniary ones. But Levine says he's not sure that amending the act to include lesser sanctions is the right course of action. "The trust issue is so important, even more so now than when these statutes were created," he says. Jervis echoes that view. "If you weaken it, you are sending a terrible message to public officials and the public," he says. Stephen D'Agostino, who practises municipal law at Thomson Rogers, agrees that the law must hold elected officials to the highest possible standard. But he believes the act could be more effective if there were amendments similar to what Cunningham suggested. As well, he feels the province should create an independent body that would administer and adjudicate any allegation that a municipal politician has breached the act. "Consistency is very important," says D'Agostino, who suggests this would improve the current process that requires an individual elector to bring an application forward under the act. LT Little has changed despite earlier tragedies: Gans Continued from page 1 Worse still, Gans discovered that judicial recommendations weren't transmitted to the Correctional Service of Canada unless specifically endorsed on a warrant of committal. Reasons for sentence weren't transmitted to provincial institutions at all for offenders serving a sentence of six months or more. They were transmitted to federal institutions only over time and in many cases beyond the initial 75- or 90day classification period that determined where correctional authorities send offenders to serve their sentence. These failures are all the more significant because the mandating legislation, found in s. 743.2 of the Criminal Code and arguably in ss. 4 and 23 of the Corrections and Conditional Release Act, was passed more than 20 years ago in the wake of at least four notorious rapes and murders. "Suffice it to say that each of the murders was committed by an offender on parole or probation in circumstances in respect of which, arguably, each tragic event could have been avoided had there been better communications between the various justice stakeholders," Gans wrote. "Simply put, there was an appalling lack of information sharing between corrections, on the one hand, internally and externally, and the Crown, police, community resources, and courts on the other." As Gans sees it, nothing has changed. "One would have thought that the communications between the justice partners would have improved markedly and with dispatch." Indeed, transmission of documents from the Crown to the appropriate authorities "is still something of a discretionary act" that, even when it occurs, includes a "significant time delay" after sentencing. Some of these problems, Gans suggests, might be less prevalent if Crown attorneys could access the information on the Ministry of Community Safety and Correctional Services' computer system. Gans also suggested that defence counsel could be more proactive either by encouraging presiding judges to staple certain documents to the warrants of committal that accompany offenders to their first place of incarceration after sentencing or by sending copies of relevant documents to the appropriate authorities and institutions. As well, Gans recommends simplifying the court services procedure for transmitting documents, better training for staff, and the adoption of an integrated justice electronic information system that allows for timely transmittal of documents from one ministry to another and access to electronic files by other justice stakeholders. The latter www.lawtimesnews.com recommendation comes as Law Times has reported on fresh delays by the province in implementing planned electronic services. Judges, Gans wrote, should also be proactive by ensuring that institutions receive mandated documents in a timely fashion. He suggests that they attach draft reasons for judgment or sentence to the warrant of committal, order that the relevant exhibits be annexed to it, and note that the attachment must be transmitted to the first institution for input into the offender tracking system. This last suggestion would avoid the anecdotal information provided by a staffer "who noted that he witnessed the separation of documents from the warrant of committal by the bailiff 's or sheriff 's officers, a statement with which [the Ministry of Community Safety and Correctional Services] took issue when I tried to chase this 'rumour' down," Gans wrote. LT

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