Law Times

Page 6 November 25, 2013 • Law Times COMMENT u Editorial obitEr By Glenn Kauth Rob Ford fiasco New law unnecessary T he ongoing municipal antics in Toronto have prompted a vigorous debate on whether city council should be able to remove a sitting mayor more easily. Among those advocating for greater powers are the Toronto Star, which in a recent editorial said council should be able to suspend or remove someone after receiving a report from the integrity commissioner that found gross violations of the code of conduct. So under that scenario, council could suspend a mayor under investigation by police or with a substance abuse problem. Currently, the law provides for removal upon conviction for a criminal offence with jail time imposed or for a violation of the Municipal Conflict of Interest Act. But when considering whether the province should change the law to loosen those rules, it's worth looking at what other levels of government do. Federally, the law provides for a parliamentarian's removal upon conviction for an indictable offence for which the sentence is two years or more. But beyond that, the doctrine of parliamentary privilege also provides for extensive disciplinary powers over members of Parliament and senators. As a result, there was an assumption Parliament could expel a member "for such reasons as it deems fit," according to a 2012 government report on criminal charges against parliamentarians. Of course, we saw the scope of Parliament's authority in play recently when the Senate voted to suspend a trio of senators for expense irregularities. But before we move to expand the rights of a municipal council to remove someone, it's important to remember a couple of things: Toronto Mayor Rob Ford isn't facing criminal charges and he's sitting in the council chamber across from a fellow member, Coun. Ana Bailao, who pleaded guilty to exceeding the legal limit earlier this year (but with no jail time imposed). Ford clearly is unfit to hold office, but how fair would it be to remove him from his job while Bailao remains on council? Fortunately, city council was able to take care of most of the mayoral dilemma by stripping Ford of his non-statutory powers and limiting his budget. Given that, we don't need a new law that would allow for excessive discretion to remove an elected politician as the current rules already allow council to essentially express non-confidence in the mayor and circumscribe his role. Due process is important even if that means putting up with Ford for a while longer. In this case, things worked as they should: Ford can't do much without the support of his fellow municipal legislators and remains mayor in title only. — Glenn Kauth Revisiting Canada's abolition of capital punishment I n many areas of the law, continuity is the norm. Incremental change works subtle adjustments so that it's difficult to point to dramatic shifts in the law. But occasionally, a major reform thrusts its way onto the legal scene. The abolition of capital punishment is one such example. For the first half of the 20th century, capital punishment was as much a part of the law as causes of action. Even if it didn't happen frequently, the criminal justice system was unimaginable without it. And yet by 1960, it was on its way out before its complete abolishment in 1976. Public support for retention was still strong, but political support declined, although not precipitously. The vote for abolition in 1976 passed by only seven votes in the House of Commons. For most people alive today, the last judicial executions in Canada aren't even a memory. Ronald Turpin and Arthur Lucas were hanged at Toronto's Don Jail more than 50 years ago on Dec. 11, 1962. Turpin was convicted in the killing of a police officer who had pulled him over when he recognized his face from a mostwanted poster. Lucas was held responsible for the execution-style killing of a drug dealer turned police informant. They Law Times charismatic — had articled were different in many ways: Turpin was a 28-year-old white That's with G. Arthur Martin, but he problems: Lucas' man raised in Ottawa and eastHistory had two first murder trial case was his and ern Ontario while Lucas was a he was highly dependent on 54-year-old black man who had alcohol, according to Robert spent most of his life in Detroit. Hoshowsky's book, The Last But they shared childhoods of to Die: Ronald Turpin, Arthur extreme deprivation, absent Lucas, and the End of Capital parents, and emotional neglect Punishment in Canada. and turned to crime as a means MacKay wasn't at his best of survival. during the second trial. For exQuestions still linger about Philip Girard ample, he didn't clearly pursue the circumstances of the crimes and the fairness of the trials. Lucas main- a plausible plea of self-defence despite the tained his innocence until his execution. fact Const. Frederick Nash had shot TurThe evidence against him was entirely pin three times, including once in the face. All-white, all-male juries, neither of circumstantial and the police didn't seriously investigate his alibi. Many aspects which recommended clemency, tried both of the Crown's case didn't add up and men. Then-prime minister John Diefensome people thought drug lords who baker opposed capital punishment but wanted a police informant killed had set couldn't sway his colleagues when cabinet reviewed the sentences. Lucas up. Diefenbaker had himself defended Experienced judges tried both men: Lucas by James McRuer and Turpin by accused murderers several times. He seGeorge Gale. Nonetheless, both made cured acquittals or commutations for arguably problematic rulings admit- some clients, but others were hanged, ting highly prejudicial evidence. The including a young man who had a mensame lawyer, Ross MacKay, represented tal age of about 10. Diefenbaker saw both accused at trials only three weeks first-hand the way in which community apart. MacKay — young, talented, and prejudices, such as an anti-Ukrainian Thomson Reuters Canada Ltd. One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON • M1T 3V4 • Tel: 416-298-5141 • Fax: 416-649-7870 www.lawtimesnews.com • clb.lteditor@thomsonreuters.com • @lawtimes Director/Group Publisher . . . . . . . . . . . . Karen Lorimer Editor in Chief. . . . . . . . . . . . . . . . . . . . . . Gail J. Cohen Editor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Glenn Kauth Staff Writer . . . . . . . . . . . . . . . . . . . . . . . .Yamri Taddese Staff Writer . . . . . . . . . . . . . . . . . . . . . . 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Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd., clb.lteditor@thomsonreuters.com CIRCULATIONS & SUBSCRIPTIONS $179.00 + HST per year in Canada for print and online (HST Reg. #R121351134), $145 + HST per year for online only. Single copies are $4.50. Circulation inquiries, postal returns and address changes should include a copy of the mailing www.lawtimesnews.com bias, could overwhelm the safeguards of a criminal trial. Capital punishment, he believed, was inadvisable when the risk of miscarriages of justice was always present. His government commuted 48 of 60 capital sentences rendered during its tenure and changed the law in 1960 to restrict the availability of capital punishment. Yet society can never take abolition for granted. Private members' bills to reinstate it arose soon after 1976. In 1987, under the government of former prime minister Brian Mulroney, MPs narrowly voted to maintain the status quo. As the wrongful executions and discriminatory administration of the death penalty recede further into the past, a climate of opinion more receptive to capital punishment may re-emerge. Fortunately, the publicity attendant on wrongful convictions may act as a countervailing factor. Still, it's the job of lawyers and historians to ensure Canadians never forget the flaws in the administration of the death penalty. LT Philip Girard is a legal historian and professor at Osgoode Hall Law School. He's also associate editor at the Osgoode Society for Canadian Legal History. His e-mail address is pgirard@osgoode.yorku.ca. label(s) and should be sent to Law Times One Corporate Plaza, 2075 Kennedy Rd. Toronto ON, M1T 3V4. Return postage guaranteed. Contact Ellen Alstein at ............ 416-649-9926 or fax: 416-649-7870 ellen.alstein@thomsonreuters.com ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 2075 Kennedy Rd., Toronto, ON, M1T 3V4 or call: Kimberlee Pascoe ...............................416-649-8875 kimberlee.pascoe@thomsonreuters.com Grace So .............................................416-609-5838 grace.so@thomsonreuters.com Joseph Galea .......................................416-649-9919 joseph.galea@thomsonreuters.com Steffanie Munroe ................................416-298-5077 steffanie.munroe@thomsonreuters.com

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