The most recent scandal to touch Toronto's mayor, Rob Ford, involves allegations he smokes crack cocaine. Now, the allegations come second hand in the Toronto Star, and while the Star is a very legitimate newspaper it is also famously feuding with Mayor Ford. Some Toronto Star reporters saw a video tape and based on what they saw concluded Mayor Ford was smoking crack. Maybe they misunderstood, were intentionally misled or were just mistaken in what they saw.
It is possible the allegations against Mayor Ford are false or perhaps dated (none of the apparent current references supposedly made by the mayor during the infamous tape could not have been made in the past).
That said, the obvious question is, should Mayor Ford be charged with possession of crack cocaine does he then lose his post? The short answer is "no".
Standing alone criminal charges do not affect the right to sit as mayor. In fact, Ontario's municipal laws provide very little way to remove a mayor convicted while in office of a crime.
For example, in 2007, Jim Jones, deputy mayor of Markham, was convicted of assault. As a Markham spokesperson noted Mr Jones would "certainly be eligible to continue to serve" as a York Region councillor. Mr Jones was not a mayor but the ability to remain in office applies the same to mayors.
The only limit on a mayor serving when criminal charges are pending is where the mayor os actually "serving a sentence of imprisonment in a penal or correctional institution." (Municipal Elections Act). And to get an actual sentence of imprisonment is quite difficult - it is most unlikely that someone like Mr Ford would be sent to prison for smoking crack cocaine, especially for a first crack offence.
Absent inprisonment there is really no way to remove a mayor who is charged with an offence. There are no legally-binding mechanisms to impeach, recall, or force resignation on a mayor in Ontario.
Accordingly, whatever is worrying Mr Ford, an expulsion from office because of the crack scandal before the next election should not be high on his list.
Friday, May 17, 2013
It is presumed that Parliament intends crimes to have a subjective fault element
R. v. A.D.H., 2013 SCC 28, just released, holds child abandonment requires a subjective fault to be proven. In so doing the Court notes a presumption that crimes require a subjective fault:
An important part of the context in which we must interpret s. 218 is the presumption that Parliament intends crimes to have a subjective fault element. The Court has stated and relied on this interpretative principle on many occasions: see, e.g., Watts v. The Queen, [1953] 1 S.C.R. 505, at p. 511; R. v. Rees, [1956] S.C.R. 640, at p. 652; Beaver v. The Queen, [1957] S.C.R. 531, at pp. 542-43; R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299, at pp. 1303 and 1309-10; R. v. Prue, [1979] 2 S.C.R. 547, at pp. 551 and 553; R. v. Bernard, [1988] 2 S.C.R. 833, at p. 871; R. v. Martineau, [1990] 2 S.C.R. 633, at p. 645; R. v. Théroux, [1993] 2 S.C.R. 5, at p. 18; R. v. Lucas, [1998] 1 S.C.R. 439, at para. 64. Perhaps the classic statement is that of Dickson J. (as he then was) for the Court in Sault Ste. Marie:
In the case of true crimes there is a presumption that a person should not be held liable for the wrongfulness of his act if that act is without mens rea . . . .
. . . . Where the offence is criminal, the Crown must establish a mental element, namely, that the accused who committed the prohibited act did so intentionally or recklessly, with knowledge of the facts constituting the offence, or with wilful blindness toward them. Mere negligence is excluded from the concept of the mental element required for conviction. Within the context of a criminal prosecution a person who fails to make such enquiries as a reasonable and prudent person would make, or who fails to know facts he should have known, is innocent in the eyes of the law. [Citations omitted; pp. 1303 and 1309-10.]
Thursday, May 16, 2013
Publication ban on name of complainant can properly be made without notice to media
CBC v. Her Majesty The Queen, 2013 NUCJ 06:
[20] I am satisfied that section 486.4 is applicable where the Crown only wants a publication ban on the name of the complainant. The order would usually be requested at the first appearance in court and there is no requirement to give notice to the media. However, where the Crown seeks to ban publication of the name of the accused or other details contain within the information in the court file or revealed in court, it must abide by the provisions of section 486.5 and give notice to the media as provided in 4 (b) above.
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