Daniel Tseghay and David Penner: Rob Ford's brush with mandatory minimum sentences
By Daniel Tseghay and David Penner
It was September 5 and the topic was Ontario’s Municipal Conflict of Interest Act. “I’ve never read that before,” said Rob Ford, the soon-to-be ousted mayor of Toronto. He will likely be removed as the city’s mayor because he was found in violation of, yes, that act. Poetic justice, some might say.
Ford’s detractors are celebrating, as they take to Facebook and Twitter to register their approval of his ignominious unseating. “Amazing news!” exclaims one jubilant tweet, echoing others. A satirical ad on Craigslist, entitled “Used Ford for Sale”, helpfully informed potential buyers: “Air conditioning is broken, only blows hot air.”
Of course, the mayor’s conservative supporters are responding to the news as well. Already there are calls for Ford to run again, should Toronto’s city council decide to hold an immediate by-election. Ford himself vows to appeal the court’s decision. But, unless the appeal court orders a stay on Ford’s removal, Ford will be out and he’ll have 14 days to vacate office.
The judge refused to extend Ford’s ban from office beyond the “current term”. Whether Ford would be barred from running again depends on what that means. The decision is unclear, though it should be read in the context of the judge’s reservations about the law and his note that removal is a “very blunt instrument”.
The judge’s decision is bringing to public consciousness the issue of mandatory minimum sentences. The judge noted that, although “there was absolutely no issue of corruption or pecuniary gain”, the law bound him to remove the mayor for violation of the law, regardless of the circumstances. The Municipal Conflict of Interest Act offers judges no discretion on removal, a kind of zero tolerance policy.
Many have called for the law to be rewritten to allow more flexibility and discretion. The National Post’s editorial board denounced the rigidity of the law. “Ordering Mr. Ford removed from office is a penalty far out of proportion with his foolish, but harmless, offence,” it concluded. Though the judge made his decision, he expressed a similar disapproval.
Whether or not the penalty is out of proportion to the offence is an open question. But if it is, if the law is truly draconian, we shouldn’t lose perspective. It has, at worst, only cost one man his job, important as that job may be.
Meanwhile, increasingly draconian laws cost ordinary Canadians their freedom. In March, Parliament passed the Safe Streets and Communities Act, an omnibus bill aimed, among other things, at ratcheting up minimum sentences for a host of offences, from minor drug offences to serious sex crimes. Many of those provisions came into force this month.
As Brad Olson noted in the Straight earlier this month, “Canada and the U.S. are taking very different paths in drug policy, and not in the way you would probably expect.” As U.S. states vote to decriminalize possession of marijuana, we are doubling down on incarceration.
Equal rights advocates, like Scott Bernstein at B.C.’s Pivot Legal Society, noted the change with dismay. And lawyers’ organizations are similarly disappointed. The Canadian Bar Association has consistently opposed mandatory minimums. And this week the Quebec Bar Association announced plans to contest the constitutionality of the mandatory minimum provisions.
Canada is being driven down a path many of us know we shouldn’t be on. As Sheryl Jarvis, writing for Rabble.ca, put it, Canada is now a place where “our freedoms are increasingly made illegal, and social programs which stave off desperation are de-funded”.
The reasons why our federal representatives passed the Safe Streets and Communities Act are complex, worthy of another article. But the effects are clear. In B.C., the act will stretch an already underfunded justice system. While the federal government passes criminal laws, provincial governments are responsible for much of their administration. B.C. judges have already begun to throw out cases due to unreasonable delays. Harsher sentences will add to the costs.
All of this could become an issue that unites the political left and right alike. Conservatives ushered in mandatory minimums, and now the conservative mayor of Canada’s largest city has lost his job because of them. Perhaps that will inspire his supporters to rethink (or renew their opposition to) the federal government’s attack on judicial discretion.
Daniel Tseghay is seeking the nomination to become the B.C. Green candidate for Vancouver-False Creek. You can follow Tseghay on Twitter at @dtseghay.
David Penner is a law student at UBC.