It is an unusual day when a criminal defence lawyer like myself takes the position that mandatory minimum sentences can work. That’s because most criminal acts are driven by situational factors like uncontrolled emotions, desperation, poverty, mental health, low intelligence, or drug addition where deterrence plays no meaningful role. However, in cases where there is a sober second thought, then further sober thoughts by city solicitors and integrity commissioners, and clear obligatory policies on right and wrong, the arguments against mandatory minimums and deterrence evaporate quickly.
When people have specifically put their mind to the notion of what could happen to them if they commit an act and weigh the action against the potential consequences or the chances of being caught or prosecuted, there is a strong argument to be made that mandatory and harsh minimum sentences not only work, but are highly effective. Case in point: Mayor Rob Ford and the recent conflict of interest ruling by Justice Hackland.
After Justice Hackland’s ruling, I doubt if there one city councillor in Toronto, and perhaps all of Canada, who is not acutely aware of the potential consequences of acting in contravention of conflict of interest rules, and who will govern themselves with the utmost caution where there may be a conflict of interest. As the saying often goes “we need to send a strong message to…” and so it was sent, loud and clear to every municipal politician in the country. The high profile nature of the case amplifies the deterrent effect for other city councillors or mayors who may have thought that relatively small amounts would go unnoticed or unsanctioned. If a mayor can be ousted for doing what Rob Ford did, for what was at core seemingly altruistic motivations, it demonstrates how serious conflicts of interest are treated in politics.
What was remarkable about the decision is how harsh the sanction was in comparison to to what the action was. This of course was not a product of an unreasonable judge, or a left-wing conspiracy as the Mayor himself has stated. Mayor’s Ford removal was product of a concept that is touted by the present Government of Canada, and conservative-minded politicians like Mayor Ford, as the antedote to all crime: the mandatory minimum sentence. Although this may be a good example of how disproportionate mandatory sentences can be to an individual offender’s act, it is a better example of how harsh mandatory sentences can work in the right, albeit exceptionally rare, circumstances like Mr. Ford’s.
The section under the Municipal Conflict of Interest Act, R.S.O. 1990, c. M.50 that Rob Ford was sanction under reads:
(a) shall, in the case of a member, declare the seat of the member vacant; and
(b) may disqualify the member or former member from being a member during a period thereafter of not more than seven years; and
(c) may, where the contravention has resulted in personal financial gain, require the member or former member to make restitution to the party suffering the loss, or, where such party is not readily ascertainable, to the municipality or local board of which he or she is a member or former member. R.S.O. 1990, c. M.50, s. 10 (1).
The language is clear and the consequences severe, just like many Criminal Code offences intended of having the effect of deterring individuals from engaging in serious conduct. What is also clear is that Justice Hackland was as lenient as the law would allow for Mayor Ford. He did not disqualify him for a period up to seven years under (b), nor did he require him to pay back the funds under subsection (c). It was the law, and Mayor Ford’s actions that removed him from office and nothing more. As Mr. Ruby, counsel for the applicant said “Rob Ford did this to Rob Ford.”
An unlike countless and typical examples under the Criminal Code, this was not an act driven by uncontrolled emotions, desperation, drug addition, or mental health. Nor is it a typical example of a lawyer explaining to a low-intelligence person charged that the offence they have committed carries a penalty that is extremely harsh and disproportionate to their level of participation as illustrated in a recent real example that resulted in a declaration of invalidity for possession of a firearm. Mayor Rob Ford is not what sociologists would describe as an offender reacting to “situational factors” as described, but closer to the rare offender acting through “rational choice“.
Mayor Ford fell precisely into the mythical legal concept of the “reasonable person” who would carefully consider the mandatory minimums before committing the illegal act. In short, Mayor Rob Ford was the unicorn that sociologists and criminal defence lawyers say does not exist in the mythical forest of sentencing as deterrence.