(I know council just made a royal mess of things this week, but I have nothing left to say on that conspiracy of dunces. I just canx. So instead, I offer this.)

A few weeks ago, the Toronto Star’s Christopher Hume wrote:

In Texas, where anything goes, planning has apparently become a dirty word. Houston, for instance, is proud of its zoning-free approach to growth. Civic officials argue that housing costs are lower in Houston than in most American cities because it has eliminated planning. But as these same planning libertarians might also point out, the market has assigned Houston a value — and it’s not much.

Now, he wrote this in the context of the West, Texas fertilizer plant explosion. The fact that Toronto (a thoroughly-planned city) had a propane explosion not that long ago and that natural gas explosions are semi-common throughout North America might suggest to some people that regulatory enforcement, not land-use zoning per se, is the factor that’s doing the work (or not) here. But let’s set that aside for a moment.

Hume, in the passage cited above, doesn’t even try to dispute the argument that Houston’s lack of zoning lowers the cost of housing. There are, in fact, some good reasons to suspect that un-planning doesn’t explain all of Houston’s affordability[1] but since Hume decided not to spend his column inches naming them I’m not going to help him out[2]. If he concedes that Houston’s unplanning makes thing more affordable, this has to mean that planning systems like Toronto’s make housing more expensive. But Hume does something weird–or at least, something that should be weird. He makes the same mistake the left is always accusing economists of. He confuses cost with value.

Homes in Houston, Hume concedes, cost less. But there’s no evidence that the people in Houston value their homes less than I do mine–they just get theirs at a discount, and have more disposable income (which they also value, presumably.)

Computing power spent most of relevant history (since the words “computing power” had an english meaning) getting cheaper every year, and there’s no evidence we’re any less fond of megahertz. To say that something is cheap, therefore something is less valuable, is an elementary mistake.

But of course, it’s the kind of mistake that too many people in Toronto, including too many elected officials, are eager to make. To urbanists like Hume (note: not all urbanists), Toronto’s high cost of living is a feature, not a bug, and comparisons to a city like Houston are worthy of nothing more than “if you like Houston so much why don’t you marry it?” But affordability is an honest-to-God problem in this city, and Houston has an answer (based on the agreed facts) that no other large city in North America seems to have.

I don’t particularly want my city to be Houston, but if urbanists can’t come up with a better answer than Hume’s glib back-patting, then we need to acknowledge that urbanism as an ideology isn’t affordable. Instead, it’s a philosophy whose goal is to create ethnic enclaves for rich people.

Disagree? Fine, then take the challenge of cities like Houston seriously.

[1] Houston has a massive network of city- and state-funded freeways that induce sprawl, it’s a “right-to-work state”, and Texas of course sits beside the massive cheap labour pool called Mexico.

[2] Okay, fine, I helped.

Is there some word for something that’s both indulgent and predictably dull? If there is, it surely describes sitting through an OMB hearing for a day and a half out of sheer curiosity.

Last year, the Toronto and East York Community Council unanimously approved Reserve Investment’s proposed development at 1960-1962 Queen Street East, formerly the site of a Lick’s Burgers. (Hence the neighbourhood shorthand, where the project is simply “the Lick’s development.) I reported on the TEYCC meeting for OpenFile and spent the day live-tweeting the meeting. Out of a desire to see how the story ends more than anything, I decided I wanted to watch the OMB hearing.

Some background: the building in question is a six-storey, “mid-rise” development that City staff have explicitly said (both to me and to councillors) meets the city’s guidelines. At the OMB hearing, Anne McIlroy, whose firm helped write those guidelines said the Reserve building meets 90 or 95 percent of them. (Yes, McIlroy was retained by the developer. Whether you think this effects her credibility is up to you.)

But some people in the community were opposed. Vocally opposed. Vociferously opposed. So after the development was approved by council, they appealed it to the OMB and so there I was, in a stuffy room across the street from City Hall at the Sheraton Centre.

The hearing was tooth-achingly dull, if you were at all familiar with the matter: it largely amounted to relitigating most of the criticisms of the development that were heard at TEYCC, including but not limited to height, parking availability, and whether it would set a precedent.

What was interesting was the extent to which–and there’s no kind way to say this–the local opponents to the development harmed their own case. Several of the participants made basic factual errors about the development, having to be corrected about the shape of the building, how parking will be accommodated, and other facts that were easily accessible in City reports.

Perhaps most notable was the man (I’m not using names here because frankly I’m not in to this to embarrass people) who claimed he’d had a role in writing the mid-rise guidelines for the City, only to have Reserve’s lawyer walk him back since we’d already heard from McIlroy, who actually did write the guidelines. Better still, he spoke passionately about “urban cancer” and all the ills this development would cause despite admitting he didn’t know about the hearing until the night before.

This was on top of drama early on Tuesday over the attempt by the opposition to reschedule the hearing.

Again, I’m not trying to be cruel. If anything, the inept opposition was striking precisely because it had seemed far better organized and informed at TEYCC that at the OMB. If I wanted to be cruel I’d simply compare the opposition at the OMB to Reserve Properties’ team of lawyers and planners. But that would be unfair–you expect the developer’s deep pockets to buy good talent.

And to cap off this point (lest you think I’m still being horribly unfair to the residents) the member of the OMB leading the hearing delivered her decision only after advising residents to “do your research” and noting that coming to a hearing agreeing on the basic facts of the development “helps your case.”

And her decision was predictable–the appeal was denied and the development (after two years in various stages of permission-begging) can go forward.

The Beaches may have “lost” this battle (whether it was worth “winning” is a discussion for another time) but the political uproar around it motivated the local councillor to launch a “Visioning Study” which introduced new design guidelines that will make similar buildings substantially more difficult.

Developers, for their part, are moving on anyway. According to the Beach Metro News:

The recently adopted Beach Urban Design Guidelines (UDG), completed after months of community consultation and work by the city’s planning department and dozens of concerned Beach residents, is already facing its first two challenges, in the form of rezoning applications on the northwest and northeast corners of Queen and Woodbine.

Both applications are for six-storey condo buildings, with retail on the first floor and two floors of underground parking. Both are above the height limits in the UDG, and “neither of them comply with the recently adopted design guidelines,” according to Senior Planner Leontine Major.

Of course, this was predictable on two counts.

1) There was never going to be a developer who did more to comply with the city’s requirements than Reserve did. (Remember McIlroy’s 90-95% estimate, and the unanimous vote at TEYCC.) So almost by definition, the developments that came later would break the rules, especially after the rules were tightened to trip up future Reserve-style developments.

2) What developer, having watched Reserve get dragged to the OMB anyway, is going to start from a position of compliance in the Beaches? If they’re going to be forced to carry a vacant property through a full appeal no matter what, their opening bid is going to be just that: something they’ll have to be forced down from. It wouldn’t surprise me at this point if the developers simply take the city to the OMB after the 6-month waiting period is up.

I should stress here I have no inside knowledge of these two new development controversies at Woodbine and Queen. And whether I think developers should be able to throw down with the city at the OMB is another issue. My point is that this is an entirely predictable consequence of how the Licks’ fight played out.

I’d also point out here that this whole debacle should humble people who think that Toronto City Council sets anything as rigorous as “policies” when it comes to planning. We have aesthetic preferences that are put down on paper, and last exactly as long as it takes for the local ward Councillor to think their job might credibly be in danger. (That, less than a full year since the TEYCC vote, only a handful of people not paid to be there cared about the OMB hearing, should stiffen the spines of council but probably won’t.)

Talk about how the city “has to” defend its planning powers at the OMB can only proceed once we acknowledge the absurdity. 1960 Queen was unanimously approved by Community Council, and the chair of the committee (Gord Perks) explicitly got staff to comment on the quality of the planning. But, whoops, it turns out this development is only “good planning” if it’s never allowed to happen again without the city making it more difficult.

This has obvious implications for the Eglinton Avenue Study (which I’ve written about at Torontoist, here. As much as the Planning Department may want to expand the permissions along Eglinton so that developers can skip the zoning-planning-OMB application fiasco if they agree to play by the city’s rules, watching how this played out along Queen East I can’t help but be cynical about the chances of success.

I’m not entirely unwilling to hear arguments about how Toronto should implement fares-by-distance, provided that there’s also an explicit and substantial commitment to dealing with the reality in Toronto, which is that the people who use the TTC for the longest trips are frequently the poorest, while the people who take frequent, short, trips are more well-to-do.

But one thing I have a hard time believing is that the TTC’s fare structure (and similar flat fares in the GTA) is driving suburban sprawl, as the RCCAO suggests in a report that got some play in the newspapers.

The full report is here. The full passage, lest you think I’m being unfair, is on page 26:

The efficiency of transit fares depends not only on their average level, but also their structure. Fares in the GTHA are inefficient in several respects. First, although the social costs of transit trips increase with distance travelled, fares do not vary systematically with distance traveled (except for GO Transit). Short-distance travellers overpay, and long distance travellers underpay. This is inconsistent with the benefits-received principle, and it creates an incentive for urban sprawl that works against “smart growth” objectives.

The first thing that occurred to me, reading this passage, was the old joke about an economist being kept up at night worrying about whether what works in practice could possibly work in theory. There’s nothing inherently silly about the theory that flat-rate fares might cause people to settle further out than they otherwise would, but that’s quite different from saying it “creates an incentive for urban sprawl”.

Why? Because transit, almost always and everywhere, comes after sprawl has already happened. People buy new homes in greenfield developments and then, years later, their town councillors might throw some transit option their way. But in municipal politics, new arrivals always have to line up behind long-time residents.

The other rock that this theory founders on, specifically in the case of the GTA, is the fact that the sprawling-est places in the GTA get their transit service primarily from GO which charges fares based on distance. If flat fares create an incentive to sprawl and fare-by-distance doesn’t, the fact that GO hasn’t substantially curbed sprawl (indeed, it exists to serve sprawl) should at least be acknowledged. The RCCAO report doesn’t.

Meanwhile, flat fares in Toronto aren’t having an obvious impact on settlement that the RCCAO would predict. If we take the hypothesis seriously, we should see preferential settlement at the city’s fringes as people snap up the combination of land and cheap transit but less settlement in the core. (The actual level of migration to Bloor West and Danforth East is barely offsetting demographic shrinkage.) We’re seeing the opposite: hypertophy in the city’s core, where flat fares offer the least benefit to new condo dwellers–someone who rides from Dufferin to Spadina on the 501 is handsomely subsidizing someone who starts their commute on the Lawrence East Bus.

Obviously there are cases where the user-pays principle can be used effectively–I’m a longtime advocate of pricing roads and parking more accurately than we currently do–and transit may actually be one of them. Like I said, I’m not opposed in principle to fares by distance. But the RCCAO has, I think, failed to make the argument that it induces more sprawl. The more boring, unexceptional contributors to sprawl (land use regulation and highway spending at Queen’s Park) still, I think, probably explain 90% of what we see in the GTA.

This is a stupidly long post, mainly because I’m hoping to provide enough background info for people who don’t know all the details around Rob Ford’s conflict of interest case. If you’re relatively well-versed in the issues already, feel free to skip to the bottom (“Summary”) where I lay out the logic I used to correctly predict the decision by Justice Hackland.

I was waffling on whether to write this post or not, but then Chris Selley wrote at the National Post this morning:

And just when you thought it couldn’t get any wackier, the judge declaring Ford eligible to run in the by-election, against the plain meaning of his judgment, added yet more chaos.

This statement, and its variants, are flying around quite a lot in the week since Justice Charles Hackland’s decision came down. Some have even gone so far as to suggest that Hackland changed his mind between Monday and Friday morning, when he changed the text of his ruling to remove the ambiguity around Ford’s qualification. There is no evidence that Hackland changed his mind, but there’s substantial evidence that, in the face of some sloppy writing in one (1!) sentence, a whole bunch of people (including, alas the City Solicitor) read what was otherwise a pretty clear decision wrongly.

I wasn’t sure I was going to write a post about how I correctly predicted that Ford would indeed be removed from office, but would not be disqualified from holding office again, because who wants to hear a blogger crow about being right? So let me preface all of the following by saying: I could have been wrong. Absolutely nothing in my reasoning was particularly quantitative, and Hackland could have simply decided he saw merit somewhere I didn’t.

But as it turned out, the reasoning I used to arrive at my prediction proved correct, this time. So I’m hoping that this post is read less in a sense of triumph and more “this worked for me, this time, and it might work for you next time.”

Getting it Right I: the law

A confession: someone pointed me to the text of the Municipal Conflict of Interest Act weeks before Clayton Ruby and Paul Magder announced their lawsuit. In response to John Lorinc’s reporting in the Globe and Mail, I was sent a missive whose content can be faithfully summarized as “oh shit oh shit oh shit this just got real”.

Ten months later I’m not sure there’s really anything to say that improves on that, but onwards.

So I did some quick googling of the law, the City of Toronto Act, and the most relevant case in CanLii for the MCIA, Mondoux v Tuchenhagen (Superior Court ruling here, Divisional Court ruling here). Some day I’ll write a book titled “Everything I needed to know I learned by learning everything I needed to know.” A bunch of things became very clear:

1) Rob Ford was screwed. Or at least, the legal road ahead of him was going to be wildly more difficult than a lot of people subsequently assumed.

2) While the law allows for a number of defences if you’ve been found to have breached the Act, none of them seemed to offer Rob Ford any kind of shelter. Reading Tuchenhagen made this very clear. (I’ll explain in detail in a bit.)

3) The City of Toronto would almost certainly be heading into a by-election if Ford’s appeals didn’t take us past November of 2013.

But of course, I am no lawyer. So I was ready to go into the arguments at court and have my mind changed if, for example, Ford’s counsel Alan Lenczner presented a serious argument that hadn’t been raised in previous case law, or if I’d simply misunderstood some basic elements of the law. (Corresponding with several municipal lawyers left me confident that I hadn’t, but still.)

II: The Court

At this point it’s axiomatic to say that Rob Ford’s greatest enemy is Rob Ford. This was as true as ever on the day of Ford’s court appearance where his own testimony undermined possible avenues of defence against Magder’s suit. (Note to observers: this is why Clayton Ruby is a man of substantial means.)

To summarize, the Conflict of Interest Act offers Two major defences if you’ve breached the Act (which it was clear Ford had.) One comes from S 10 (2):

if the judge finds that the contravention was committed through inadvertence or by reason of an error in judgment, the member is not subject to having his or her seat declared vacant

And the other comes from S. 4 (k), which says that the mandatory penalty of the act doesn’t apply if the pecuniary interest:

is so remote or insignificant in its nature that it cannot reasonably be regarded as likely to influence the member.

To take these in order: “inadvertence or by reason of an error in judgment” cannot be a matter of saying “oops, I wish I hadn’t done that.” To invent a hypothetical example that might work (again, I am not a lawyer) you would need to argue that while your wife works in the Parks Department and you voted on that matter, it was only because the agenda was confusing (this is not uncommon) and you thought you were voting on the Solid Waste department. It would be especially helpful if you didn’t speak on the matter.

But councillors frequently declare conflicts on matters where their spouses work in city departments, so this kind of thing doesn’t happen if you’re seriously trying to obey the law.

The other major defence, insignificance, isn’t simply a matter of “oh well that’s pocket change, he obviously wasn’t being bribed”, at least not according to case law. Rather, Ford had to demonstrate that he was voting on the matter for some reason having nothing to do with the money. Instead, in his remarks to council that night, he said explicitly he thought it was absurd he would have to pay back this money himself.

So even before the case opened, Ford seemed to have a tough road ahead. His testimony only made things worse: to summarize a day’s worth of strained listening in a stuffy Ontario courtroom, it became clear that a) Ford didn’t speak or vote inadvertently, b) the money wasn’t insignificant to him, and most damningly of all, c) he spent 12 years as a councillor and Mayor obliged by his oaths of office to learn about the MCIA and utterly, totally, obstinately refused to do so. Instead, at the late date of his court appearance, Ford and his legal team tried to invent an alternative definition of “conflict of interest” that, alas, had nothing to do with the text of the act.

Ford’s legal team didn’t limit themselves to the defences in the MCIA, of course. But Lenczner’s further arguments about the MCIA all amounted, in my view, to asking Hackland to nullify the law or read it so narrowly as to exclude almost everything in the real universe. Hackland might have decided to do that, but Lenczner failed to give him an obvious reason to do so.

This is not a situation that winning court cases are made of.

III: After court

But within a week of the court appearances, many observers started saying things like “of course a judge isn’t going to remove the sitting Mayor of Canada’s largest city.”

“Of course”?

A whole bunch of reporters, pundits, and others seem to have expected a senior justice of Ontario’s Superior Court to have come to the Ford case desperate to find anyway not to apply the plain text of settled law. And Hackland may have been willing to find some way to save Ford, but the Ford-Lenczner team utterly failed to give a convincing (or even face-saving) reason to do so. Based on the facts of the law and the arguments made in court, exempting Ford from the law would have amounted to Hackland stating that he was afraid to apply the law.

And it seemed foolish to assume that Hackland got in to the judging business because he was afraid to apply the law. As it turned out, he wasn’t.

Hackland’s decision is available here, and as it’s not particularly mysterious or opaque (with one exception!) Hackland finds that Ford’s actions were not inadvertent, not an error in judgement, and that the money involved was clearly at the top of Ford’s mind when he spoke and vote on the matter. So, having broken the law and having no workable defence, the seat of the Mayor of Toronto was vacated under the law.

IV: The exception!

Nothing caused more consternation in Hackland’s ruling than the last four words of this sentence:

In view of the significant mitigating circumstances surrounding the respondent’s actions, as set out in paragraph 48 of these reasons, I decline to impose any further disqualification from holding office beyond the current term.

Because “current term” has a specific legal meaning under Ontario law, many people not unreasonably assumed that Hackland was barring Ford from running or being appointed until the beginning of the next municipal term begins, in this case 2014. But read in the context of the rest of Hackland’s decision that seemed to me wrong, and there were specific important things missing from Hackland’s decision if it was going to be right.

Hackland, like many observers (including me) seems to think that it’s regrettable he has only one punishment to mete out under the law. This comes through repeatedly in his decision, most directly in paragraph 48:

I recognize that the circumstances of this case demonstrate that there was absolutely no issue of corruption or pecuniary gain on the respondent’s part. His contraventions of the municipal Code of Conduct involved a modest amount of money which he endeavoured to raise for a legitimate charity…

and further in paragraph 50:

while the respondent’s conduct in speaking and voting at the February 7, 2012 City Council meeting was far from the most serious breach of s. 5(1) of the MCIA, removal from office is mandatory unless the respondent’s contravention of the MCIA was committed through inadvertence or by reason of an error in judgment.

So I read Hackland’s decision as him imposing the minimum possible sentence based on his breach of the act, and assumed that Hackland was misusing the words “current term” because of his unfamiliarity with the City of Toronto Act (Hackland’s normal area of operations is eastern Ontario.) And this is important: the minimum possible sentence for Rob Ford doesn’t disqualify him from office.

The section of the act that removes Ford from office is S. 10 (1) a. The section of the act that would have disqualified Ford from running again or being appointed is S. 10 (1) b. This may sound trivial, but it’s not: Rob Ford is a rights-bearing citizen of the Province of Ontario, and he has the right to stand for public office until the law strips him of that right.

When a judge wants to strip someone of a political right, they don’t leave it up to the interpretation of four words in a kludge-y sentence. They write something like “further, using the powers of S. 10 (1) b, I disqualify Rob Ford from office until October 27, 2014″ or something. That sentence wasn’t in Hackland’s decision, and there was no evidence he intended it to be there—all of the text of his decision indicated he didn’t intend to punish Ford more than the law required.

So I was frankly shocked when the City Solicitor declared that her understanding of the decision was that Ford couldn’t run until 2014. What that translated to was that the Solicitor’s advice was that the City Clerk would have to keep Ford off any by-election ballot, an action Ford was sure to contest in court and which I suspected the City would lose.

So that’s almost 2,000 words on how I ended up being right about Ford’s Conflict of Interest case. But I want to stress once more that nothing in this was certain to be right, but that it was more than just a guess.

Summary

• The text of the law was against Ford.
• The settled case law was against Ford.
• Ford’s statements in court hurt him further.
• His lawyers were unable, in my (and the judge’s!) view, to present a strong enough argument for exempting Ford’s actions.
• Judges don’t get into the judge business because they’re looking for ways to not apply the law.
• That said, the judge would look for the minimum possible punishment under the law because of the facts of this case.
• That punishment is vacating the office but allowing Ford to run again immediately.
• The preponderance of evidence—and the lack of important contrary evidence—leads me to believe Hackland never intended to disqualify Ford from office.

And more speculatively than any of that, I think the real-world effect of Hackland’s decision appeals to what I imagine judicial culture is in cases like this: Ford isn’t being “punished” in any meaningful sense, rather the judge is forcing Toronto’s political system to judge and punish him. Toronto City Council will either vote to appoint a replacement or they could, hypothetically, appoint Ford back to the Mayor’s office to serve until 2014. Or they can choose to go to a special election, in which case it will be the people of Toronto who choose what Ford’s punishment should be, and whether his deeds were severe enough to warrant his firing.

Which is exactly as it should be.

Since the court verdict that vacated Mayor Rob Ford’s seat came down on Monday, Toronto’s been thrust into an election campaign of sorts: people have started speculating about candidates, cutting ads, and wondering about who will come out on top. All this, despite the fact that there may not even be an election. (I’m betting there will be, but the Divisional Court could prove me wrong.)

One of the common refrains we’re hearing already is: Rob Ford won once, he could do it again. His base will be energized by this scandal.

For example, Steve Paikin:

If Ford Nation was becoming at all blasé because of the mayor’s travails, that will almost certainly come to an end. Ford Nation will be energized as never before at what it perceives as the “vast left wing conspiracy’s” attempt to remove Ford from office. They don’t see a man who broke the law. They see the elites ganging up on their guy.

And from Saturday’s Globe and Mail, an article by Adrian Morrow:

An Angus Reid poll released Friday, meanwhile, suggested three out of five people who voted for the mayor in 2010 would back him again in a by-election.

“A lot of people are surprised that he’s held the support that he has. It surprises me at times how resilient it is,” said Nick Kouvalis, the strategist who engineered Mr. Ford’s 2010 victory.

The consistent point being that, hey, don’t count him out.

Well, campaigns matter (especially at the municipal level where “fundamentals” are fuzzier to define) so Ford certainly “could”, in a mathematical sense, win re-election. But I think even a cursory view at the polls shows it’s unlikely, and a longer view at the last two years’ worth of polling shows that it’s difficult to imagine how Ford could do it.

Let’s start with the numbers from the Angus Reid poll. Some basic math shows us the depth of Rob Ford’s electoral hole. Angus Reid’s poll is online here, and it’s true that Ford has clung to 60% of his 2010 totals. But the remaining 40%, per Angus Reid, aren’t looking like potential Ford supporters:

Yes, Rob Ford currently hold 60% of his 2010 support. But of the 40% of his supporters he’s lost, 90% don’t intend to vote for him again. Which is why I’m putting in Angus Reid’s city-wide numbers as well, since it will be all of Toronto voters who go to the polls, not just Ford’s supporters.

And I don’t know how you look at a poll where the candidate has a 27% re-elect number and say “he could still win!” Actually, 27% is a significant number for political junkies: it’s the number of people who voted for Alan Keyes versus Barack Obama in the 2004 Illinois Senate race. As John Rogers immortally wrote in 2005:

Keyes was from out of state, so you can eliminate any established political base; both candidates were black, so you can factor out racism; and Keyes was plainly, obviously, completely crazy. Batshit crazy. Head-trauma crazy. But 27% of the population of Illinois voted for him. They put party identification, personal prejudice, whatever ahead of rational judgement. Hell, even like 5% of Democrats voted for him. That’s crazy behaviour. I think you have to assume a 27% Crazification Factor in any population.

Rob Ford’s political support, in at least one poll, has reached the Crazification Factor that Keyes did, and eventually George W. Bush did as well. It is not a place you want to be in when running for re-election.

Finally, there’s no evidence yet of a counterreaction to Justice Hackland’s decision. According to the Angus Reid poll, 40% of Rob Ford’s 2010 supporters agree with Hackland’s decision, and a massive 69% of voters city-wide do.

Forum Research has been polling more regularly than Angus Reid, and their results, while slightly more favourable for Ford, don’t give any evidence to pin hopes of a Ford groundswell on, either. We’ve got a good series of polls going back a year, but frankly the data hasn’t shown much change in that time so we might as well go with the most recent. (You’ll have to register for that PDF link, I think.)

Do voters oppose the judge’s ruling? Nope, city-wide the approval is 58-38. According to Forum’s poll, 27% of Ford’s 2010 supporters agree with the decision. When given a number of alternative punishments to choose from, exactly half still say he should lose his job (plenty of Ford critics who have no intention of voting for him reasonably enough disagree with the severity of the law.)

But if you go through the Forum polls, the preponderance of data suggests their IVR polling finds a hard core of Ford support of about 35%. Angus Reid pins it at 27%. I’ve seen no poll that suggests support for Ford in even the low 40s on a consistent basis. (As I hope you’ve gathered by now, I try to pay attention to this stuff.)

And this is the important part: Ford Nation is not a winning electoral coalition. 35% gets you a teary concession speech on election night. (Ask George Smitherman.) The 47% of the vote that Rob Ford legitimately won in 2010 (pending the conclusion of his campaign finance audit) is not all made up of “Ford Nation”. Rather, Ford Nation is somewhere between one-quarter and one-third of Toronto’s electorate and Ford managed to attract sufficient additional voters, in the unique circumstances of the 2010 election, to push him over the top.

Ah, you say, but what of the Toronto Left’s limitless capacity for electoral self-harm? What happens if Shelley Carroll, Adam Vaughan, Olivia Chow, and a bunch of other candidates step in to the race and split the vote? Indeed, backers of Olivia Chow are already using this scenario in order to arrogantly instruct sitting councillors to sit out the by-election.

We should never underestimate the left’s ability to step on a rake in this town, but it’s worth remembering the 2003 election: in a serious contest between serious candidates, the electorate did the choosing, with 81% of the vote coalescing behind either David Miller or John Tory, and no other candidate breaking double digits.

The vote-splitting on the left in 2010 was not because there were too many candidates (despite what Smitherman supporters would like to believe.) Some polling at the time suggested half of Joe Pantalone’s vote would have gone to Rob Ford, so if this had become a two-person race the only result would have been Ford having an outright majority, not the plurality he got.

Rather, the vote splitting on the left was because there were no good candidates to the left of Rob Ford. I have things to say about Carroll, Vaughan, and Chow, but I’m confident none of them would end up being the mediocrities that Smitherman and Pantalone were.

There’s also the fact that Adam Vaughan has repeatedly indicated that his priority is removing Ford, not being mayor himself. Given the polling numbers in place today, Vaughan is the only candidate with a serious chance of digging in to Chow’s support to any dangerous degree, and even that is minimal. If Vaughan sits this one out and lets Chow take the lead, I don’t see any possibility of substantial vote-splitting.

Now, the disclaimer: obviously, circumstances could change. If Olivia Chow pushes out all contenders and then collapses due to scandal or something, Ford could win again. But that’s not the argument that’s being made today. We’re seeing pundits and Ford supporters claim that there’s a groundswell of Ford support just waiting to happen in a by-election, a claim for which there is zero evidence. I suspect that Ford will just about keep his 35% in the Forum Polls on the yet-to-be-decided election day. But that’s not what victories are made of.

With all the evidence we have today, Ford is likely to lose. And it’s not going to be particularly close.

So a bunch of important stuff was happening today–the Mayor of Toronto continues to defend himself in court, Israel and Gaza are at war (again and again, respectively) but many of us on Twitter were having a merry old time with the Globe and Mail’s Editorial Board, which penned an editorial that quickly became its own punchline, about the videogame Assassin’s Creed 3. After a bit of intro about the game’s origin from Ubisoft Montreal, and the scandal that Ubisoft (gasp!) got government funding, we get to this:

But Canadian youth ought to know enough to differentiate between fact and fiction.

Assassin’s Creed III is set in 1765, and promotional material describes how, as “a Native American assassin, (you) eliminate your enemies with guns, bows, tomahawks, and more!” To suggest indigenous peoples rallied to the side of the colonists in their fight for freedom grotesquely twists the facts.

Who, precisely, is suggesting that the videogame depicts indigenous people rallying to support the Americans? By my understanding (here I’ll note that I haven’t yet played the game) the game depicts one person, with their own motives, helping the Americans in the context of a larger, peudo-mystical conflict. It’s more than a little silly for us to be arguing over the details of this, really, but then we get to the Globe’s point:

A contributing factor to the American Revolution was the Royal Proclamation of 1763, which established the important precedent that indigenous peoples had certain rights to the lands they occupied. The Declaration of Independence, in contrast, complains that King George III sided with “the inhabitants of our frontiers, the merciless Indian Savages.”

Whose side would the “Native American assassin” really have been on? Think about it.

The War of 1812, in some respects a sequel to the Revolutionary War, offers some insight.

Wait, what?

“First Nations fought shoulder-to-shoulder with the British in this important conflict,” Assembly of First Nations National Chief Shawn Atleo said last month…

Hang on a second. We’re talking about the motivations of First Nations during the 1770s, not 1812. The written word wasn’t invented in the interim, so why not actually address the history and scholarship of First Nations and their relationship with the American Revolution itself?

Well because history is more complicated than bizarre chest-thumping, that’s why. Plenty of First Nations fought for the Americans–notably the Oneida and the Tuscarora, though they probably came to regret it.

It’s true that by 1812 many First Nations had changed their minds about the Americans (shockingly, the Americans didn’t keep their word with their onetime allies) but many fought for the Americans because then, as now, we can’t see the future. It’s as incoherent as saying that World War II explained why the United Kingdom obviously wouldn’t sign a treaty with Japan in 1902. (Spoiler: they did.)

This is important, because as surprising as it may seem, First Nations societies have pursued their own interests as best as they could for the centuries since European settlement began. For some leaders, that meant backing the Crown in 1775 and after. But not for all. And as clear as it may seem to the Globe and Mail editorial board, there’s no obviously right answer to the question “would you rather have your society systematically dismantled by the Crown or the Republic?”

In an apparent attempt to instruct us all on the importance of historical accuracy, the Globe’s editorial board has cited events in 1812 as motivations for people in 1775, all in the service of a dubious assertion of facts. In a broadside against “ameriphilia”, they’ve actually removed complexity from their reader’s understanding.

Oh, and they’ve treated First Nations peoples as a monolithic corporate whole instead of recognizing the divisions within a diverse community.

Then, with a plea for us to remember the Loyalists who left the young Republic and settled Upper Canada (because Anglo whites were victims too!) the Globe finishes with:

Assassin’s Creed III is just a video game. But given the dearth of history instruction in our schools, it might be the only place that Canadian young people are learning about the Revolutionary War. At very least, they need to be equipped to separate the Ameriphilia from the facts.

But even if the Globe can’t make the argument coherently, let’s talk about this: One of my favourite games in university was Call of Duty. In it, you sometimes play a Soviet soldier, first at Stalingrad, then at Kursk, and finally in the great westward movements hurling the German Army out of Eastern Europe. Is a game required, as you blast your way through the ruins of Berlin, to note that this wasn’t exactly a victory for Poland, who wouldn’t see those Soviet soldiers leave for decades?

The standard adopted by the Globe would seem to be, “yes”. (Actually, the standard set by the Globe would seem to be that we have to remove the complexity from real history, perhaps removing facts like the Poles who fought for the Soviets.) I don’t think the answer is clear-cut at all. This whole argument is an example of how difficult it actually is to do this: whose story do you tell? How do you weight the complexity of real history? There’s no reason to think that, even if they tried, Ubisoft would be terribly good at weighing these choices.

(One of the only half-decent examples of this I can point to is in LA Noire, where in a flashback your character explains that the Japanese bombed Pearl Harbor because of the US oil embargo. But it’s notable because it’s rare.)

This isn’t license to distort history–a game in which Polish Jews welcomed their German benefactors would obviously be beyond the pale. But just as obviously nothing in these games rises to that level. If there’s no reason to think that videogames are particularly good at teaching history (nobody, surely, argued that they were) it’s a good thing that we’re living in a time when it’s phenomenally easy to find facts. People who can’t be bothered to do a Google search are being deceived by their own sloth, not their Playstations.

In the end it’s tempting to say we shouldn’t have wasted our tweets arguing about a videogame, but it was so much fun after all.

Matt Elliott on the Fords’ bizarre war against Sec 37 funds:

But the mayor and his brother also argued that maybe section 37 funds could continue to exist, but that any money raised shouldn’t be used in the local communities. “Pool it all together, and divide it by the 44 councillors,” they said.

If anything, that view, which has been trumpeted by budget chief Mike Del Grande for a couple of years now, feels more like a shakedown than the current arrangement. As it is, funds raised from developers go straight to nearby community interests, where there’s a measurable impact. Under the scheme favoured—maybe—by Del Grande and the Fords, any money raised would presumably just go into general revenues where it’d be lost in the weeds of Toronto’s operating and capital budgets.

Matt is a pretty level-headed kind of guy so he’s being polite here, but we should be clear about the facts: Del Grande and the Fords know that the development pressure this city faces will overwhelmingly not be in their wards. (This City PDF, on page 4, points out that about 40% of new residential units and non-residential gross floor area occur either in the downtown or Yonge-Eglinton areas. I’d be shocked if over half of all development weren’t happening between Eglinton and the lake, and between the two rivers.)

So when the Mayor and Budget Chief say they want to pool the money, they’ve got a soundbite that has a veneer of fairness that dissolves under any kind of scrutiny. Their demand, in short, is the privilege of keeping density and development at a distance from their communities while benefiting at the expense of those who can’t–or indeed, those who might welcome density and the S. 37 money it brings. (If such people exist in this city.)

There’s a word for telling people who live downtown to open their wallets and hand it over. You might almost call it a shakedown.

This is before we even get to the inconvenient fact that the Ontario Municipal Board (the final authority in these matters) takes a dim view of S. 37 funds being used far afield from the intended community. According to Patrick J. Devine (PDF), OMB decisions in the last decade set the precedent that a “real and demonstrable” connection to the development in question. So pooling S. 37 funds may not even be legal, much less fair.

There’s a fair argument that the city could use a different policy on S. 37 funds, but any changes to the city’s policies is likely to be marginal: provincial law also all but forbids a standardized system of S. 37 collection (this according to previous interviews with city staff) since it would then be an illegal tax under the City of Toronto Act. So S. 37 deals have to be local, ad-hoc affairs unless the province steps in to change the law.

That might be a good thing: I’m a fan of David Schleicher’s “tax increment local transfers” as one replacement, but local control is still central to Schleicher’s idea. So Toronto’s suburbs wouldn’t get to keep out intensification and reap the rewards. In any case, it’s not what’s on offer. Nor, I assume, is the Mayor going to propose a simpler “scrap the S. 37 bylaw and just increase taxes”, because he remains Rob Ford last I checked.

So what we’re left with is basically suburban grievance, legal illiteracy, and a lack of any constructive suggestion for how to improve things. The status quo in the Ford years.