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Released on April 17, 2017
This article originally published on Osgoode Hall Law
Journal, 301 (2015). Brief
overview and excerpts of the articles as follows:
Have
we legalized corruption?
This
article asks whether granting expanded powers to local government
decision makers in Ontario without concomitant expansions of
procedural safeguards may lead to an abuse of such powers (or to
corruption) by allowing these officials to use their powers for
their own private gain. In summary, this article is concerned with
whether the current state of Ontario municipal law lends itself to
abuse by municipal officials.
Under
current municipal law and the resulting political structures,
individual municipal councillors are key decision makers who have
the power to affect the outcomes of municipal decisions. Moreover,
as municipalities have gained broad discretion to act with few
procedural safeguards, an individual councillor can use his or her
power to affect a municipal decision. Because municipalities have
such broad discretion, it may be difficult to determine whether a
particular municipal decision was made for a proper purpose. In
other words, a councillor could act improperly, abusing his or her
power for private gain, without any jurisdictional, political, or
procedural limit on his or her action to demonstrate that such
action is, in fact, improper. Thus, one unintended consequence of
current municipal law may be the creation of conditions that allow
for abuse of discretion and corrupt political patronage by municipal
council members without any penalty.
Stated
another way, researchers take issue with the commentary, quoted by
Justice McLachlin, as she then was, in the Shell dissent, that there
may be no right or wrong municipal decision. In researcher's view a
wrong decision, or one that is improperly made, is a decision that
circumvents ordinary municipal decision-making processes and might
be seen as merely arbitrary or as satisfying the whims of an
individual councillor. Such decisions are not based on the rule of
law when they are not transparent, reasoned, predictable, or made
for a proper municipal purpose."
The
municipal decision makers, and in particular individual municipal
councillors, use their powers to influence municipal decisions and
are so concerned with responsiveness and efficiency to protect and
grow their own political capital (and potential for re-election)
that they may not make decisions that are in the best interests of
the municipality. As a result, the question arises:
(1) does
current Ontario municipal law create a system which lends itself to
improper,
(2) or
even abusive or corrupt, decision making by local elected officials
or, at the
very
least, benefit those officials more than it benefits the public?
Researchers
have explored the idea
that a confluence of factors has expanded the powers and broadened
the discretion of Canadian municipalities and individual municipal
council members: the exercise of judicial restraint in reviewing
city decisions; the creation of larger, single-tier cities with
centralized power and few legislative limits; the lack of political
limits on the power of individual city council members; the lack of
procedural safeguards; and the privileging of economic and political
values over rule of law values in city decision making. These
changes allow municipalities to ensure that political decisions
reflect local values, that local government has the tools to effect
its decisions, and that local government (not a provincial
government) is accountable for such decisions. For municipalities
and municipal councils that in the past had to seek express
authority to take action, this represents a radical change.
Moreover, the expansion of power and discretion includes few
administrative or procedural limits, since municipalities can make
their own rules, set their own administrative procedures, and impose
their own conditions, unless there is a conflict with federal or
provincial legislation. Moreover, as a result of a weak-mayor
system, lack of party affiliations, and elections by individual
districts or wards, individual municipal council members and their
core constituents have become not only the key decision makers in
municipal government but also the primary beneficiaries of expanded
municipal powers and discretion in municipal decision making.
Editor
WikiLeaks Sudbury
April 2017
Reference
Makuch, S.M., Schuman, M. (2015).
Have We Legalized Corruption? The Impacts of Expanding Municipal Authority
without Safeguards in Toronto and Ontario. 53 Osgoode Hall Law Journal,
301 .
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