Could mayor go to SCC despite clash of laws?

Toronto Mayor Rob Ford has sworn he will fight his conflict of interest conviction all the way, and according to an Ottawa lawyer who specializes in Supreme Court of Canada advocacy, the mayor’s battle could in fact find an avenue to the country’s top court.

The decision that results from Ford’s appeal to the Divisional Court, set to begin this week, may not be the end of the road because of a conflict between federal and provincial laws, says Eugene Meehan, a partner at Supreme Advocacy LLP in Ottawa.

The Municipal Conflict of Interest Act, a piece of provincial legislation, says the Divisional Court’s decision will be final. It also says matters of conflict of interest can’t be appealed at the Court of Appeal but it doesn’t say they can’t go to the Supreme Court, Meehan says.

If the Divisional Court upholds Superior Court Justice Charles Hackland’s decision, Ford could still try to continue his fight to stay in office because of a little-known section in the Supreme Court Act that contradicts with the finality of the Divisional Court’s ruling, according to Meehan.

Section 38 of the act states that an appeal to the Supreme Court “lies on a question of law alone with leave of that court, from a final judgment of the Federal Court or of a court of a province other than the highest court of final resort therein.”

The clash between the two pieces of legislation is obvious, says Meehan, who adds that the issue boils down to what types of cases merit the Supreme Court’s attention.

“There’s a fundamental question at play here: is it only some types of cases that go to the Supreme Court or all types of cases? Is Canada’s national court a truly national court or is it a national court for some people but not all people?” he asks.

Normally, litigants arrive at the Supreme Court only after going through the Ontario Court of Appeal. But s. 38, which involves appeals per saltum, a term that literally means “by way of jump” in Latin, allows litigants to skip the appeal court, Meehan notes.

The situation could be “a bit like a third world war where a retreating army blows up bridges behind them and the allies quickly build a new floating pontoon bridge to get across the river,” he adds.

Ford could still ask for leave to appeal from the Court of Appeal, adds Meehan, and when declined on the basis of the Municipal Conflict of Interest Act, could take that rejection itself as an issue for appeal to the Supreme Court.
But in order for the case to go to the Supreme Court, both sides have to agree, adds Meehan, who believes there’s a good chance the parties would consent if it came down to it.

The Municipal Conflict of Interest Act rule that a Divisional Court decision is final is “a deliberate restriction of access to justice,” says Meehan. “To some, it’s juridically offensive. To others, it’s an appropriate way to manage judicial resources.”

If Ford’s case reaches the Supreme Court, it wouldn’t be the first time a Canadian mayor’s conflict of interest case has made it there. In 1934, then-Montreal alderman Arthur Angrignon appealed to the Supreme Court after his recommendation of his three-storey property for a police substation landed him in hot water. His appeal was dismissed.

Then in 1979, the Supreme Court of Canada ordered Gary D. Wheeler, who was mayor of the City of Moncton, N.B., to leave office after setting aside an appeal court’s ruling that he acted appropriately in a case involving contracts entered into by the city with companies he was a shareholder and director of.

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