Following on my repost from the archives, some thoughts about the events of the last week (inclusive of next Monday, where Rob Ford is likely to be stripped of his remaining powers and duties):

Council has, finally, asserted its supremacy over the Mayor. We’ll see if it sticks–Rob Ford promises to challenge the council’s decisions in court, and a court may yet decide that council has gone too far. But for now, this is a partial–yes, partial–resolution of the crisis of legitimacy.

(The crisis of legitimacy, in case you don’t click on the above link, is the result of two competing claims of city-wide legitimate governance: One from the mayor, who says that he alone was elected by the people of the city; and another from council itself, which can reasonably claim to represent the city entire as well. This is a structural flaw that Rob Ford’s tenure has made apparent, but, I submit, is not easily dismissed as simply a problem with Rob Ford. Those Ford voters, after all, aren’t going anywhere.)

Monday will see Ford made, in effect, in to a councillor-at-large: he will have no special privileges except for those that provincial law requires he have, and even those won’t be administered without resistance from council. He will, in every way council currently has at its disposal, have been made powerless.

Except he won’t be powerless, he’ll still be a member of council. And he’s made it clear that he’s going to use the abilities he has as a member of council to prevent the work of council from getting done. He explicitly threatened to filibuster council in response to their discipline on Friday:

Mayor Rob Ford says he’s going to hold every item until his “dying day” on the council floor #TOpoli

— Don Peat (@reporterdonpeat) November 15, 2013

Council can take away powers they delegated to the Mayor (or rather, we hope a court agrees they can) but trying to pass Ford-specific limits on the rights of council members to hold items for debate is a lot dicier, legally speaking. So what then? Do we start limiting the rights of all members to hold items for debate, just so we can try and get around Ford’s temper tantrums?

This is ridiculous. Ford is, explicitly, stating that not only does he not have any intention of doing his job, he’s not going to allow anyone else to do his job either. This isn’t hyperbole. The role of the Mayor of Toronto as the head of council is set out in S. 133 (1) of the City of Toronto Act.

133. (1) It is the role of the mayor of the City, as the head of council,
(a) to act as chief executive officer of the City;
(b) to preside over meetings of council so that its business can be carried out efficiently and effectively;
(c) to provide leadership to council;
(d) to represent the City at official functions; and
(e) to carry out the duties of the head of council under this or any other Act.

Rob Ford has explicitly stated that he does not intend to do his job under S. 133 (1) clauses A or B. Council has made C irrelevant. They can’t technically take D away from him but he’s already sufficiently toxic that he can’t represent the city at the Santa Claus Parade or an Argos-Ticats game. So Ford, in a very literal sense, cannot do the job he was hired to.

In any other situation–with an office holder who was not merely abdicating his duties, but actively hindering them–the answer would be simple: he should be removed from office, as fast as reasonably possible. So, great news: The Premier of Ontario says that if council asks for “new tools” to resolve the Ford crisis, her door is open.

And…. nothing, from council. Denzil Minnan-Wong is still talking about this, but councillors by and large don’t seem ready to take this step. Why this should be so is beyond me. Rob Ford has done everything short of literally defecating in the council chambers, but the line from councillors is that if he isn’t actually incarcerated he should get to keep his seat.

This is a ridiculous threshold to set for public office. I’m surprised that even needs to be said. What it amounts to saying is that, short of serious crimes, the only real limit to an abuse of public trust is the abuser’s own sense of shame.

It’s also undemocratic, though many seem to misunderstand this. An election isn’t a get out of jail free card. It’s a conditional license granted by the people to represent them. Just because that license is normally reviewed at regular intervals (elections) doesn’t mean that’s the only permissible way to do so.

To put it simply: if a large majority of council asks the province for the power to remove Rob Ford from office, and that were to get unanimous consent from all three parties at Queen’s Park, you would have the elected representatives of both Toronto and Ontario voting to add accountability to the office of the Mayor. Absolutely nothing in that is undemocratic. It is, instead, a pair of democratic assemblies doing their jobs. Because Rob Ford refuses to do his.

What’s to keep this from abuse? The only thing that keeps anything from abuse in a democratic government: in the final accounting, the voters. If city council votes to remove Rob Ford from office and this so outrages the voters that they want to remove their councillors at the next election, they’ve got the opportunity to do so. But in the meantime, it’s council’s job to properly manage the business of this city.

Or, to repeat myself, it’s Rob Ford’s job but he refuses to do it, and says that as long as he’s a member of council he won’t let anyone else do it either.

To go further, I would say that council should have the power to remove the Mayor to clearly resolve the crisis of legitimacy: council should be supreme, and while it can delegate powers to the Mayor it needs to be clear that the Mayor reigns at council’s sufferance. To reiterate, I think this is a structural need, not something that should be a one-off to deal with Rob Ford.

I’d go so far as to say that council should have the power to expel any member of council who consistently and deliberately undermines the effective and efficient functioning of council, mayor and councillor alike.

If this sounds like a dangerous road to go down, let me point you to the Parliament of Canada’s description of the House of Commons:

The power of the House to expel one of its Members derives from its traditional authority to determine whether Members are qualified to sit. A criminal conviction is not necessary for the House to expel a Member; the House may judge a Member unworthy to sit in the Chamber for any conduct unbecoming the character of a Member.

Historically, members have only been expelled for criminal convictions. But that is explicitly not the threshold the House sets.

The US Congress has the power to expel members, and the Constitution simply sets the threshold of needing a two-thirds vote of the respective chamber. (No criminal or ethical threshold for expulsion is explicit in the text.)

What I’m saying is, the power to expel members of an assembly is properly understood as the power of any normal, mature democratic assembly. And Toronto City Council should have that power, even if councillors can’t (for reasons beyond my understanding) bring themselves to use it.

To answer a few quick questions I assume will be asked:

1) What happens next, if council removes Ford from office?

Council has an existing policy for dealing with vacancies, which we’ve already seen used recently. They can choose to appoint a successor or hold an election. Given that we’re less than a year away from the next citywide election anyway, I suspect many councillors would vote for a replacement. But the basic point is: the procedural machinery for a vacancy at council already exists, and we don’t need to reinvent the wheel.

2) What about (insert my preferred fix here)?

There are a bunch of other ideas to help make council work better. Dave Meslin has been advocating for Instant Runoff Voting, other cities use at-large councillors instead of ward systems, etc. These are all methods that deserve study, but they don’t resolve the problem we have now, or prevent it from occurring in the future.

There is no evidence that Instant Runoff Voting would have prevented Ford from becoming Mayor (contemporary polls showed Ford was the 2nd choice for many Smitherman and Pantalone voters) and absolutely nothing about his tenure in office should make you think that IRV would have changed the way Ford would have comported himself since. (To be cruel about it, he was not thinking about his poll numbers while smoking crack.)

Similarly, at-large councillors (councillors voted for by the city entire, instead of wards) don’t on their own solve the problem of the competing claims to legitimacy. Any individual at-large councillor will still likely get fewer votes than the Mayor would, individually. (In the 2011 election, Vancouver’s Gregor Robertson got 77,005 while the leading councillor got 63,273.)

It’s possible to imagine a situation where we elected a number of at-large councillors and then selected the leading one to be mayor so long as they held a majority of council’s support, but that’s something very different from simply electing councillors differently. I’d be fine with that scenario, but I think it’s a lot farther from where we are today–and it still doesn’t solve the problem of someone (coughcoughRobFordcough) using their privileges as a member of council to obstruct the business of council.

3) What about the potential for abuse?

Every system can be abused, and most are. Abuses can be a reason for caution, but on their own can’t be a reason to avoid necessary changes. (Police abuse civilians. Few think the absence of police would be preferable.) The actual history of expulsion powers suggests that abuse isn’t something we have to worry about. The Canadian House of Commons has expelled four members in its entire history, all for the commission of crimes. 17 of the 20 members of Congress who have ever been expelled were Southern Democrats who joined the Confederacy, and expulsion for treason seems pretty reasonable. Neither chamber shows a history of political expulsion votes.

The design of an expulsion rule is important–I wouldn’t recommend a simple majority, and I’m open to other suggestions, such as a requirement for multiple votes separated by a decent interval. (Two votes within 15 days, for example.) But there’s no reason to suggest that expulsion powers, in and of themselves, are likely to be abused by Toronto City Council. They are, however, the only tool left that could actually solve the crisis at City Hall.

Wrapping up:

Toronto City Council should have the power to expel a member of council who becomes an immovable obstacle for the business of the city. Whether Mayor or Councillor, nobody should be able to hold the city and its business hostage. Arguing against this as a basic right of a democratic assembly is to argue that Toronto’s council is not a mature level of government. If there are any councillors reading this, please: You’ve insisted since amalgamation that Toronto is a responsible level of government. That has to mean something concrete, and now it means you have to ask the province for the power to expel an irresponsible member of council.

Rob Ford has long since earned his expulsion from council even aside from my concerns about the structural imbalances of mayoral and council power. He demeans his office and the offices of people around him. He humiliates council and the city as a whole. The only thing left for him to do is literally defecate on the council floor, but according to some it would be undemocratic for us to keep him from doing so. This is absurd. Representing the voters isn’t a right, it’s a privilege that emanates from our individual rights, and Ford has used up the last of his political privileges.

However, since we’re seeing the resolution of the crisis of legitimacy through council asserting its supremacy, this is a further reason to say that if the province won’t give council the power to expel any member, it at least needs the power to remove the mayor. That permanently, and correctly, tips the balance of power in council’s favor. I’m saying this now because of the current crisis, and if the Second Coming of David Miller ever smokes crack on video, hangs around with criminals and holds a St. Patty’s Day hillbilly bacchanalia at city hall, I’ll be saying the same then.

The alternative is to spend the next year as Rob Ford does what he tells us he’s going to: sue the city for his powers back, costing millions of dollars and months of time all while he does everything he can to obstruct anything he can. If that worries you less than the political risks of a more powerful council, you don’t have your priorities straight.

Addendum, 9:00 p.m.:

This post has already had a lot of reception on Twitter, and thank you all for that. But there’s something that needs to be stopped right now. That is our apparent inclination to believe that there must be some procedural fix to the problem Rob Ford poses short of expulsion.

There isn’t.

Specifically, some people seem to be unfamiliar with or misunderstand the Toronto City Council “hold”. Holds are council’s way of streamlining business — basically, any item not held at the beginning of council that doesn’t need to be otherwise approved at a later vote gets passed without further debate. (Items are, of course,debated at the committee stage.) The hold is the crucial first step that allows a member of council to ask questions of staff, make an amendment, and speak for or against an item. So while there might be some way to limit Ford’s ability to abuse holds, it’s not as simple as saying it–we’re talking about a fundamental feature of council’s procedures.

And council needs this feature because Toronto City Council handles a workload unlike any other GTA municipality. Toronto-East York Community Council–just one of council’s many committees–regularly deals with over 100 items on its own. And there are three other community councils. And all the other committees. Dealing with the business of council without the hold system simply isn’t tenable.

But suppose we figure out a way to do it that passes legal muster. Then what? Do we also restrict Ford’s ability to ask questions of staff? His ability to speak on an item? To make amendments? Even if Ford’s privileges are simply restricted to the items other people hold, he has any number of ways he can filibuster the business of council.

To put it simply, Rob Ford is likely to more creative at abusing the process of council than council is at crafting a Ford-proof process.

And to be clear: it’s not the basic process of council that’s at issue here. Rob Ford is a bad actor, who needs to be punished. Previous punishments have been ineffective, and future punishments along the same line will be equally ineffective. So council needs something stronger. That means expulsion.

This post was originally written in March 2012. Not all of it holds up well, but the basic thesis I think bears repeating in light of recent events. I’ll have more to say later.

The news broke late yesterday that Toronto Transit Commission Chair Karen Stintz—who, it’s good to remind people, was a staunch ally of Mayor Rob Ford’s as recently as early February—will ask council to dissolve the current board of commissioners at the TTC and reconstitute a new board of seven members from council and open four spaces for private citizens with transit expertise. This is widely, and correctly, seen as a way of wresting power over the TTC from the Mayor’s closest allies and putting control of Toronto’s transit choices firmly in the hands of Toronto City Council.

In reaction to the news, conservative Stefan Baranski (former press secretary for the George Smitherman for Mayor campaign and since then a supporter of much of Rob Ford’s policies) tweeted a fair question that started a longer discussion than what I’m excerpting here:

@adamcf and @graphicmatt go immediately to the most obvious (and not incorrect) explanation for the current political situation: Rob Ford has himself to blame for the current situation, with his total inability to build any kind of majority coalition on council. Seeing as I’ve written the same elsewhere (and Stefan accepts it without seeming hesitation) this really does explain a lot of the problem. But not all of it.

That’s right: this isn’t all Rob Ford’s fault. The problem is actually a structural flaw in the way we’ve designed city council, and especially the powers given to the Mayor since 2006.

The problem at City Hall

A bit of background for people who haven’t spent the last little while neck-deep in the City of Toronto Act and other procedural documents: it would only be a slight exaggeration to say that the office of the Mayor of Toronto, prior to 2006, was basically just a councillor that the whole city got to elect. He had substantial powers of persuasion and obviously retained an electoral mandate (so Mel Lastman ran on, and delivered, a tax freeze in the new amalgamated city of Toronto) but all the important decisions were made by council.

In 2006, as the Province of Ontario brought in the City of Toronto Act, the City’s procedural by-law was changed to give the Mayor new powers over council. One of the more important ones is the right of the mayor to name committee chairs (instead of letting committees do that on their own, or have council name them). This allows him to form the Executive Committee of his choosing (a cabinet of sorts) and keep control over the agenda in various committee to make sure nuisance items from the opposition don’t find their way to council. The Mayor also, alone among the individuals at council, can call a special session of council in his own authority to deal with matters. (Rob Ford has exercised this power when council threw up a roadblock, for example when opposition councillors denied him the 2/3 majority he needed to introduce a motion to fire the board of Toronto Community Housing.)

But some things didn’t change: the Mayor is still elected generally from the city (as opposed to councillors who are elected in 44 wards) and thus remains the only individual at City Hall with a city-wide mandate. Or, as we were incorrectly told when Rob Ford was elected, “he’s the politician who received the most votes in Canadian history.” (Factually incorrect: Mel Lastman got more votes in both of his elections than Rob Ford.)

While Rob Ford has pushed the idea of a Mayor’s mandate to absurd ends—”people voted for whatever my current political priority is this week, and I’m going to deliver what they voted for”—he didn’t invent the idea of a mayoral mandate and it’s not inherently absurd: who else can speak for the city if not the only guy in the room elected by the city as a whole?

Well, there’s council isn’t there? In fact, winning councillors collectively received substantially more votes than Rob Ford did (415,546 votes for this council as opposed to Ford’s 383,501) so if mandates spring from numbers, council can rightly claim a larger mandate than the Mayor.

There’s a more subtle form of representation that council has that simply doesn’t exist for the mayor’s office: namely, Rob Ford doesn’t really represent (or try to represent) the people who didn’t vote for him. If you’re a left-wing voter in Rob Ford’s Toronto, you’re basically out of luck in seeing anything come out of the Mayor’s office that you like. But when we vote for council, the city-wide effect means that even if you live in, say, Mike Del Grande’s ward you can root for someone like Glenn de Baeremaeker to represent Scarborough from the more left-wing position.

And that, basically, is the recipe for the situation we have right now: a formally powerful council that has had enough with the Mayor’s claim to speak for the city, and is in the process of taking charge. (The TTC is only the first step. Important committees like the Budget Committee will be next, I’m sure) But the Mayor still has the bully pulpit and the political fact of his individual city-wide mandate.

There’s a word for this in political science: a crisis of legitimacy.

The Perils of Presidentialism and Crises of Legitimacy

Let me get one thing out of the way right now. I am not saying that Rob Ford is an illegitimate mayor. I’m sure others have, but Rob Ford won an election and holds his office legitimately. It’s not clear that the election was entirely fair—Ford may yet be found guilty of having broken election finance laws—but that’s not relevant for the kind of legitimacy that I’m talking about now.

Rather, we have an inherent conflict between two competing claims of who gets to speak for Toronto as a whole: the Mayor, who was directly elected by the city at large, or the council which was elected collectively, but in 44 parts. This is exactly the kind of problem that is common in Presidential political systems. That is, systems that follow the American political model of a separately elected executive and legislative branch of government, as opposed to the British (and Canadian) model of Parliamentary governance where the executive is elected from within the legislature.

(The seminal text on how Presidential systems inherently lend themselves to legitimacy crises is “The Perils of Presidentialism” by Juan Linz, but the underlying issue has been a permanent concern in US politics. A 2001 article by Bruce Ackerman essentially says that the post-Charter Canadian system comes closest to a perfect fusion of crisis-free governance while protecting minorities, which is nice for us.)

A classic crisis of legitimacy goes something like this: President is elected on a new, perhaps radical, platform; legislature throws up roadblocks to his policies; crisis develops. It ends one of two ways: the President uses his powers to neuter the legislature (see Boris Yeltsin dissolving the Russian White House with tank shells) or the legislature neuters the President (not as many examples of this, though post-2004 Ukraine briefly looked like it might after the Orange Revolution). The crisis can only be resolved one way: the fundamental issue of who speaks for the electorate has to be settled.

In Russia, this was settled by putting enormous power in the hands of the President (even before the Putin era). In British systems the House of Commons is elected by the country, and whoever keeps the confidence of the House stays the Prime Minister. No more crises in either case because the issue is settled, though obviously most liberals would have other complaints about how Yeltsin settled the Russian legitimacy crisis.

Toronto’s legitimacy crisis

With the generic framework of a legitimacy crisis understood, we can see how it applies to Toronto and Rob Ford: this isn’t simply a case of a bullying politician unwilling to understand the limitations of his office, it’s a substantial structural flaw in the way we’ve built our government in this city. It’s as serious a defect as if we’d built an uneven foundation on a home. It’s an issue that will continue to dog Toronto City Council so long as the issue of who speaks for the city is left unsettled. What it isn’t is an individual problem with Rob Ford.

This crisis arguably began with transit when the mayor dismissed Transit City without a vote in council (a vote he would have almost certainly won, in one of Toronto’s enduring political mysteries), heightened when council had to take over the Port Lands file from Doug Ford’s blundering, was ratcheted further when the Mayor’s office refused to make a deal on the budget, and now we’re where we are on the transit file.

We’ve failed to understand that the status quo is actually the worst-case scenario: the transit fight that is brewing later this month is likely to decide something on Sheppard avenue that (a) will be won or lost on the narrowest of margins and (b) if council decides against a Sheppard subway extension, won’t have the support of most of Scarborough councillors, meaning that thanks to the crisis of legitimacy the argument won’t be settled and we’ll keep blundering through this fight until at least 2014.

But the crisis isn’t going to end later this month with transit. Every. Single. Decision. From here on out everything the city does is going to be decided on an absurd, ad hoc basis as the mayor attempts to win whatever votes he can by dangling something in front of one councillor or another. Toronto’s going to lurch from one battle to another as the two sides at council try to poach votes from the centre.

And in all the chaos, anyone who’s spent the last few years arguing that Toronto needs the political and financial tools to govern itself properly instead of as a ward of the province is going to die a little inside each day.

So what’s the fix?

We have basically two choices, and as an expert witness I’d like to call on Doug Ford, councillor for Ward 2. One option is to move further powers to the Mayor’s office, such as a veto over council, the hiring and firing of high-level city staff (despite recent events, the Mayor individually does not have this ability) and other powers—in short, the typical American strong-mayor system. Itself a more intense form of American presidentialism. Doug Ford endorsed exactly this idea early on in the new council’s term.

But Doug Ford also understands that the other way to have a system that allows a government to enact its mandate is the Parliamentary model, telling the Toronto Sun in February “When you have a clear mandate provincially, you have a team and you have a leader you get to move it forward”. Bringing a parliamentary system to council would be relatively simple, though at the moment it’s illegal under the City of Toronto Act. Simply have the Mayor elected by council from among its members. Whoever retains the loyalty of a majority of council is the mayor.

Either one of these ideas seems to horrify various elements of Toronto’s commentariat. We’ve always elected a Mayor! Except that the status quo can’t be self-justifying. As recently as 1997 the Mayor was vastly less powerful because he (or twice, she) presided over a smaller city, and until 2006 the mayor was less powerful because various laws said so. We’ve amalgamated a megacity of almost 3 million people and assumed that the same elected-mayor system we used to run a city of 100,000 was sufficient. We’ve also dramatically shrunk the number of elected representatives in this city, proportionally increasing the importance of the Mayor’s vote. Rob Ford has shown the flaws in the sysem, but if he loses in 2014 the system will still be flawed.

Between the two options of a strong presidential mayor or electing the mayor from within council—essentially, parliamentary government for the city—the parliamentary one is the much more preferable option. That’s because while both allow an elected government to pursue a legitimate mandate, only the Parliamentary option is better for whoever’s out of power at any given moment. I assume that will sound self-serving to Ford supporters but I imagine they’ll change their tune under Mayor Carroll or Mayor Vaughan.

Some of the obvious objections:

Q: Argh! I hate political parties and this is a recipe for that!

There’s no reason that this would inherently lead to formal political parties in Toronto. Electing the mayor from within council doesn’t mean that councillors would all have to join parties.

That said, the reality of the current system is that there are two well-defined political parties, and a third group of increasingly-left-leaning councillors in the middle. But instead of dealing with this maturely, provincial law forces the city to pretend that parties don’t exist in a formal sense. This is absurd and unsustainable. Toronto today is almost as populous as Canada was in 1867, and far more complex to govern than our young Dominion was. The idea that political parties can do an above-average job of governing this country and its provinces for 150 years but are going to run this city terribly just doesn’t make sense.

But if Rob Ford were leading the Conservative Party of Toronto, he’d rule the city with an iron fist until the next election!

Well no, for a bunch of reasons. The most important being that Rob Ford would have been unlikely to be chosen to lead any political party, as he had no friends on council until he started to lead in the polls in the summer of 2010. More than that, the incentives for councillors looking to be re-elected in 2014 don’t fundamentally change—indeed, it’s at least as plausible to say that if Ford were the leader of the Conservative caucus of Toronto he’d already be out of a job. If Maggie effing Thatcher can lose her job to a caucus revolt, why would you assume Rob Ford can maintain party solidarity? Because of the sterling political instincts he’s demonstrated so far?

But more importantly, this isn’t about Rob Ford. As I’ve tried to say over and over, this is a structural flaw in the system that Rob Ford has made obvious, not a flaw that’s going to be solved by removing Ford from his job.

Stupid lefty bilge. You weren’t saying this during Miller’s reign of terror!

Well no, I wasn’t. But that’s because (a) I didn’t live in this city during his first term; (b) like many of us, I wasn’t paying as much attention to city politics during the second Miller term until the 2009 strike; and (c) Miller never exposed these flaws to the same extent because he mostly had council behind him on the big stuff.

But some conservatives on council were arguing for the city to look at formal political parties. Karen Stintz, back when she was the shrill Miller-hating conservative of the left’s nightmares, told Toronto Life in 2008 that there were some good reasons for political parties:

One of the most common complaints about Toronto council is that it is a collection of 44 “ward bosses” who have no broader vision beyond what’s happening in their local neighbourhoods. Political parties are the simplest way to remedy that problem, because candidates would unite around a common platform for the city’s future. A party system could arguably make collaboration easier: the mayor, instead of negotiating with individual councillors for their support, could negotiate for whole blocs of support at once.

This is certainly how Stintz sees things. “I totally support parties,” she says. “Council is facing some difficult issues right now, and if the opposition were truly a party, we would have to confront those issues as a group. Right now, we can just walk away from them.” She points to Miller’s One Cent Now campaign as a perfect example. Once Ottawa reduced the GST to five per cent, Stintz believes the province should have taken up that tax room and handed it over to municipalities. “But I can’t work with the mayor on the issue, because our relationship is so toxic that we can’t have a normal conversation. And I can’t hold my own press conference because it appears like I’m just grandstanding. But if I were a party spokesperson on this issue, if I had legitimacy in that role before council and the media, then I could speak up.”

I know that for Toronto’s hardest-core right Stintz now exists as a non-person, but back when she was a Miller critic she was right about political parties at the municipal level. And the analysis is still right. (I don’t know if Stintz has changed her mind on political parties.) We no longer have a city, as John Matheson (another Tory!) said on TVO’s the Agenda this week, where a form of government suited for slight tweaks to the status quo can still operate. The challenges that face Toronto are large and they need a system that can function without lurching from crisis to crisis. We don’t have that system now, and I’m willing to bet we probably wouldn’t even if George Smitherman—himself, not really known for making friends and allies at Queen’s Park—had been elected.

Why can’t we just keep muddling through?

Well that’s always an option, and a very Canadian one at that. But we shouldn’t understimate the costs that come with the current government. There are literal dollar costs to this: millions of dollars might as well have been set alight thanks to the paralysis over transit in this city, millions of dollars that could have been better spent on trifles like feeding hungry children or keeping libraries open.

And then there’s the damage this crisis is doing to our politics: we have a mayor who, rather than admit he has no plan to raise the money needed for rapid transit in Scarborough, spends his days telling voters in Scarborough and Etobicoke that this is all about downtowners wanting to hog all the good subway lines to themselves. Rob Ford has already said he will run for re-election based on Scarborough being stabbed in the back by downtown elitists, further poisoning the well of Toronto’s civic discussion. It’s horrifyingly ugly, and it shouldn’t be happening. But it’s exactly what all of the political incentives tell Rob Ford, or any mayor in his position, to do—even if the man were perfect, and we don’t build our political institutions by first assuming every conservative will be David Crombie.

So: Responsible Government for Toronto, now.

I don’t usually write about videogames, but rather than blast a few dozen tweets or a super-long FB update, I thought I’d say a few things about The Last of Us, the latest game from the people who made the Uncharted series.

Shorter me: this game is excellent and if you have a PS3 I’d recommend buying it.

Longer me follows.

Basically, this is how the last few evenings went for me this week:

1) Open beer.

2) Turn on PS3, start playing The Last of Us.

3) Totally forget about beer.

4) Discover flat beer when it’s time for me to go to bed, wonder “where did that come from?”

TLoU is a zombie apocalypse survival game from Naughty Dog, which means at times it’s really more of a remote-controlled movie than something like Red Dead Redemption. At that link, you’ll find Navneet Alang asking whether videogames need to be put on rails to offer the best narrative experience. I’m not going to take a position (nor, really, does Nav) but I will say that TLoU shows that this isn’t just a gimmick that worked with the Uncharted games: TLoU is easily one of the most compelling stories I’ve enjoyed on the PS3.

To put it in one perspective, if you have to choose between buying TLoU or watching World War Z to get your fix of zombie apocalypse, it’s not even close: on its storyline alone the videogame wins hands down.

And just as importantly, it overwhelmingly (though not completely) works as a game. As far as gameplay goes, the biggest difference between TLoU and Uncharted is that while Nathan Drake largely gets to spray bullets with sociopathic mirth, you spend the entirety of TLoU counting every single bullet (or arrow.) A single missed shot is occasion for an obscenity, and more than a few misses probably means your untimely demise is at hand. This can be frustrating, but in a game where save points are common it’s one way of maintaining the tension.

So combat, rather than being a matter of running into the fray guns blazing (which is fun!) ends up needing to be thought through one step at a time. The additional need to build weapons and health kits out of spare parts is something that takes some time to get used to, but by the end of the game becomes second nature.

It’s not a perfect game: like other Naughty Dog releases, there are plenty of times where the puzzles you need to solve feel less like a natural part of the story and more like padding and make-work. And there’s the obvious point that if you’re not a fan of Naughty Dog’s style of storytelling, where you spend as much time as audience as you do as participant, then you’re probably going to have a problem with this game: it leans more heavily on its script than any of the Uncharted games.

I’m a big fan of the way Naughty Dog tells stories, and even I felt a creeping urge to roll my eyes and mutter “oh well I guess I’ll sit back for a bit”. But that urge was usually shouted down because really, the story those moments serve works incredibly well.

While I don’t want to spoil the game, it would be unfair to not talk about the story in a bit more detail: you (mostly) play the game as Joel, a father who survives his daughter being killed at the outbreak of the zombie plague. Joel meets Ellie, a young girl immune to the disease, from whom a band of survivors want to make a vaccine. Broadly, the story is about getting Ellie from Boston to safety out west, and the bond that develops between Joel and Ellie.

The transformation of the relationship between Ellie and Joel is one of those things that makes the game special: the writing is note-perfect and the actors deliver it perfectly. It’s not exactly a breakthrough in story-telling (hello, True Grit), but to execute an old standard well is its own kind of work.

The last thing I’ll say about the story is how the viscera of modern gameplay is used well to reinforce the brutality of the story. Blood and body parts go flying not just for decorative purposes but because that’s the kind of person Joel’s had to become to survive. Everything about the game is intentionally brutal and messy to reinforce the world that we’re immersed in. And we’re really not spared the psychological consequences of this much brutality on the characters. (For example, if you’re willing to spoil one of the chapters of the game, read there..)

The Last of Us could almost be a success on technical grounds alone: it is simply a beautiful game and the increasing quality of motion capture makes the animation really excellent. (To the point where I seriously wonder what the point of getting a next-generation console will be.) More importantly, it offers an excellent story told through far-above-average gameplay.

Ed Keenan, at his blog, writes:

There is no business plan I can imagine in which a Finch West subway turns a profit within the next 50 years, or even breaks even. A Sheppard East subway into Scarborough would lose money. The truth is that most of the existing bus routes in Scarborough and Etobicoke and parts of North York lose money. That is why the TTC can often try to save money by cutting service on suburban routes. It is why the TTC under David Miller briefly projected it could save $10 million per year by shuttering the existing Sheppard subway.

This gives me the opportunity to put a few things down on pixels that I’ve been meaning to for a while, so bear with me. But if you don’t want to read this to the end, the TL,DR version of this blog post is a big, flaming “be careful what you wish for”.

1. Imagine harder, boy!

Is there some reason to categorically rule out subways along Finch? Sure, if we’re going to be bound by the present facts. But half of the point of building rapid transit in already built-up urban areas is to change the facts: a Finch LRT is expected to drive redevelopment, just not as much as, say, the Spadina subway extension to Vaughan.

And there’s a lot of reason to think that Finch could, in theory, make a decent subway corridor. Starting at the airport you can easily see a route going north to Finch, past York University, then crossing Spadina and (probably) heading a bit east of Yonge (at least to Bayview?)

So the limitation isn’t on a subway making sense in a geographic sense, it’s on how to make the damn thing make money.

2. A brief discussion of proftable mass transit.

There aren’t that many models for how to make a profitable mass transit system. The classic is to have transit owned and operated by the people who also either own or sell the properties that transit serves. This is how Los Angeles’ red cars worked before the freeway era, and this is how Hong Kong works today.

More broadly, Wikipedia provides a list of transit systems that operate with a farebox recovery ratio of more than 100% (what I’m using “make money” as a shorthand for.) What do they all have in common?

First of all, they’re all super-dense Asian cities: Singapore, Taipei, Hong Kong, Tokyo, and Osaka. Here are the population densities for those cities:

Osaka: 12,877 per square kilometre
Taipei: 9,600 per square kilometre
Singapore: 7,315 per square kilometre
Hong Kong: 6,480 per square kilometre
Tokyo: 6,029 per square kilometre

By comparison, Toronto’s average is 4,149 per square kilometre. And the numbers for those Asian cities certainly and dramatically understate the density around transit service, which is what we’re talking about. Even low-density Toronto sees densities of 9-10,000 people per square kilometre (with some interruptions) along the Bloor-Danforth line.

So how does Finch do? You tell me: noodle around with this census map. There are some high-density tracts (York, Jane & Finch) but there’s also yawning density deserts.

(I’ve gone over these kinds of numbers before at some length, but since some suburban councillors like to insist that you don’t need density for subways, it’s worth repeating.)

3. What would a Finch subway business plan look like?

So with those basic facts in place, a money-making Finch subway would almost certainly need the following:

1. At least doubling the density of people and jobs along Finch, and in some places tripling.

2. Linking the incentives for transit use and development in the most direct way–have the same corporation run both.

Those are the all-but-necessary preconditions. Based on existing systems, distance-based fares wouldn’t hurt. And for the most rapid return on investment, a subway-building company would also demand things like a free hand as far as building height and zoned uses go.

And we’re not talking just along Finch itself. If I were being asked to build a subway along Finch, I’d want building freedoms well north and south of the corridor, specifically to try to introduce more walkable, less car-oriented streets feeding into the subway line. That is, we’re talking about demolishing existing residential neighbourhoods to build something that looks more like downtown.

4. Great, you’ve got a subway, now what?

Before going any further, let’s be clear about one thing: this plan will not happen in any way, shape or form. The pro-density, pro-transit left would hate the privileging of private capital, while the suburban right would hate the towers and disruption to settled communities it would cause. Absolutely nobody would support it, even though I think it’s a realistic-on-paper answer to the question “how can a subway be profitable?” Since it would also require implicit government support (if nothing else, freedom from zoning not available elsewhere in the city), it’s not even a “free-market” answer, really. And we haven’t even raised the possibility of a subway company being granted any expropriation rights.

What it most resembles, actually, is the Bob Moses vision of city-building: the use of state power and private capital to transform “blighted” places. While this plan plausibly serves a place called “Finch”, it almost certainly wouldn’t serve anyone currently living there. Indeed, in most places the plan explicitly requires people to be moved out, by selling their homes or other properties to our hypothetical subway-development corporation. Even the existing towers would probably be demolished for redevelopment, Regent Park-style.

This is what putting the technological cart before the city-building horse gets you: instead of building transit to serve the city we have, you’re effectively rebuilding the city to serve the transit you’ve decided you want, ex ante and for no technical reason.

This is probably why the vast majority of the world’s transit systems don’t make a cent of profit: because we don’t want them to. Instead, we want transit to serve a bunch of different purposes, not all of them cost-effective. “Taking cars off the road” doesn’t actually make money, but it’s worth doing for congested cities.

In short: it’s possible to imagine Toronto’s suburbs as a blank sheet of paper where we can fit subways in and hey with some extra imagination it might not even cost us that much. But anything beyond crayons-on-maps level of sophistication quickly leads us to a scenario that nobody actually wants. It’s possible to imagine a free subway, but nobody would actually want it built.

(This may or may not turn out to be a regular series, depending on how long the current infatuation with Senate ponderings lasts.)

So Canadians are talking about reforming or even (gasp!) abolishing the Senate. Abolishing the Senate is constitutionally difficult, but analytically pretty simple: we wouldn’t have a Senate anymore, and the House of Commons and Crown would constitute the Canadian Parliament[1].

With either abolition or reform, we have to ask what the effects would be, and whether the means would serve the intended ends.

So in that spirit (and because I just read an interesting paper about it) let’s all agree that as bad as having the Prime Minister appoint Senators is, having the provinces appoint them would be worse.

“What the eff?” you say. “Who’s even advocating that?” Well, nobody important that I can see at the moment. (Though parts of this Tom Flanagan piece could be read that way.) But this was a common argument by provinces in the 1970s, and god knows bad ideas never really go away.

And it’s a bad idea not because I don’t like it, but because it fails to achieve its stated goal: increasing sub-national control over the national government. In fact, history shows it does the opposite.

Before 1913, the US Senate was appointed by state legislatures. This was explicitly intended to give the states control over the President, and not incidentally the Supreme Court. Then, after decades of campaigning, in just 11 months the Congress and two-thirds of the states passed the 17th amendment to require directly elected Senators.

A new paper from David Schleicher of George Mason University explains why states voted to disempower themselves. Schleicher argues that the role of national political parties in the US made the Framers’ conception of federalism unworkable, and in fact put state politics at the mercy of national politics–the exact opposite of what the founders intended.

Why? It’s pretty simple: state elections became “nationalized”, with voters expected to elect state representatives based on which party’s senators they would send to Washington. This had already begun before the Civil War, but by the 1870s through the 1900s it became more and more intense. Schleicher cites an 1894 editorial in the Chicago Tribune which explicitly argued that it was wrong for the state’s voters to make their decision based on state issues–national politics was what mattered:

Do these Democratic State Senators think the voters can be called off from the national issues involved in the direct election of Representatives and the indirect election of a Senator to consider only local questions. That they will drop the Wilson bill and devote their attention to the establishment of a Police Board in Chicago? That they will lose their interest in the currency — in the silver question and the taxation of State bank notes–and become wrapped up in the question whether the Chicago park boards shall be elective or appointed?

The 13th amendment, then, was a way of restoring the spirit of the federalist constitution by abandoning the letter.

The same issue faces other appointed upper houses. The German Bundesrat is an extreme example of this, where the German states (Lands) send delegates who have to strictly follow their government’s instructions. The intention was to decentralize the German government after World War II. The result has been to “nationalize” Land elections, as it was in the US senate. From Bruce Ackerman, 2001 (PDF):

The voters do not independently elect members of the Bundesrat. Its members are representatives of each Land government and strictly follow its instructions. This means that voters in Land elections cannot concern themselves only with the competing parties’ performance at the Land level. They must also bear in mind that their votes in Land elections can shift the balance of national power by changing the party balance in the Bundesrat…

The result has been the nationalization of state politics. National politicians and parties cannot look upon the fate of state elections with relative indifference. They make them part of the national political game, seeking to transform state elections into votes of confidence on the Chancellor and his initiatives. Voters in state elections do not focus only on the promises and performance of their state governments. They tend to use their votes to send a message to Berlin about their satisfaction with the ruling coali-tion on the national level.

There’s some important broader lessons about reform here. The biggest would be that the law of unintended consequences still applies: structures that are nominally intended to preserve local political importance can, in fact, diminish it.

But I want to rest on one point from Schleicher that I think is broadly relevant: the need to understand how we structure institutions with an understanding of how actors will work within them. The lessons of both the US Senate and Bundesrat suggest, for example, that an effort to de-politicize the Canadian Senate by appointing “non-partisan” technocrats will be short-lived at best. It’s a legislature: it’s politics all the way down. National political parties are here to stay, and thinking that they’ll somehow stay out of the Senate if we tinker with some rules is just juvenile.

[1] Fixed from an earlier version where I erroneously wrote that the Commons would be the Parliament alone.

(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.