Removing a Sitting Mayor From Office: A Heavy Legal Lift

Rob Ford’s admission that he did in fact smoke crack cocaine on video set off a political crisis at Toronto City Hall. It did not, however, trigger a legal crisis. This is because the law is very clear on Toronto city council’s authority to remove a sitting mayor from office—it can’t. Section 6(1) of Ontario’s Municipal Elections Act (MEA) simply states that the term of office for a councilor, which includes the mayor, is four years. Neither the MEA nor the City of Toronto Act (CTA) vest council with the authority to cut this four-year term short.

This legal hurdle has not stopped the headlong impetus to oust Ford. Rather, it has fomented much discussion on the alternative legal means that are available. What follows is a short outline of the available legal avenues for removing a sitting mayor from office.

Away Three Months? Don’t Come Back

Section 204(c) of the CTA provides that the office of a member of city council will become vacant if that councilor is absent from the meetings of council for three successive months. The three-month rule is not absolute—the councilor’s office will not became vacant if council authorizes the absence.

This provision is not a viable legal pathway for ousting a mayor because its activation depends solely on the actions of the mayor. Ford could remain in his office if he did not let three full months elapse between his appearances at council meetings. Therefore, this provision is more of a legal dead-man pedal than a sword as it can be activated only through the actions of the mayor himself.

No Meeting for 60 Days, No More Councilors

Section 211(1) of the CTA, by contrast, provides a legal mechanism that Toronto’s councilors could use against Ford. It provides that the Ontario Minister of Municipal Affairs and Housing may order that all the offices of the members of council be vacant in the event that council be unable to hold a meeting for 60 days due to an inability to achieve a quorum.

The councilors could use this provision against Ford, but at a significant cost to their own political fortunes. The Minister’s order would vacate the office of “all councilors.” This is essentially political hara-kiri, because bringing down Ford in this manner would involve bringing down every other member of council. It would be a Phyrric victory that would result in a blank slate for council, plunging Toronto into a round of by-elections for every council seat.

Into Prison and Out of Office

A further way in which a sitting Toronto mayor can be ousted is through imprisonment. Section 256(a) of the Municipal Act provides that a person is entitled to hold office if he or she is entitled to be an elector in the local municipality, and “elector” is defined in section 115(11) as being a person whose name appears on the voters’ list. The MEA states in section 17(3)1 that a person who is serving a sentence of imprisonment in a penal or correction institution is prohibited from voting. If the Mayor were imprisoned, his removal from the voters’ list would make him ineligible to hold office.

However, Ford has not been charged with a crime. Toronto Police Chief Bill Blair has stated publically that the video of Ford smoking crack cocaine in a “drunken stupor” cannot support a criminal charge. This video was netted in Project Traveller, a year-long Toronto Police investigation that resulted in Ford’s friend and driver, Alexander Lisi, being arrested and charged with extortion. It is also unlikely that a charge will flow from Ford’s recent video declaration of wanting to commit “first-degree murder” (his words) on an unnamed person. Just as Ford’s lawyer claimed that the substance in the crack pipe could have been tobacco (his client later admitted that it was, in fact, crack), he could easily claim that Ford wanted to murder a fictional character like Elmo.

Should the Toronto Police charge Ford with a crime, his office would be vacated only upon imprisonment. In any case, a lengthy trial and uncertain conviction would precede this event. Therefore, this path to ousting Ford is largely in the hands of the police, the courts, and Ford himself. If the police have evidence to support a charge, they still face the extraordinary decision of actually charging a sitting mayor. The courts would handle the adjudication of this charge. I highlight Ford’s agency in this legal avenue because the basis for any charge against Ford would have necessarily stemmed from his own behavior and choices.

Changing Provincial Law

The above legal avenues for removing Ford from office all depend on provincial law. The province has the ability to change the law. Recognizing council’s inability to remove Ford itself, Councillor Denzil Minnan-Wong is asking the province to do just that. He will be presenting a motion to council that contains a petition asking the province to remove Ford from office.

Municipal Affairs Minister Linda Jeffrey has confirmed that she would examine this proposal if council votes to send it to the province, but she has not provided any indication of her potential response. Council will be asked to vote on this motion on Wednesday 13 November.

Ford More Years?

Each of these legal avenues to ousting a sitting mayor from office depends on a different interplay of actors. No one actor has unilateral authority to remove Ford from office, certainly not council. However, the political situation is very fluid and it is developing rapidly. Trigger events for each of these legal avenues could still happen. In the meantime, the state of the law gives one resounding lesson to those who would pursue legal means to remove a sitting mayor from office—it ain’t easy.

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