Karygiannis case shows how laws favour the powerful

On Nov. 6, city Coun. James Karygiannis was removed from office after he filed a campaign return showing he overspent the limit on voter appreciation events by holding a $27,000 dinner for some of his donors at the Santorini Grill on Dec. 27.

This week, the Superior Court granted his application for reinstatement. The case demonstrates a profound inequality in the experience of the privileged and the disadvantaged when seeking relief from mandatory minimum penalties.

Campaign spending limits serve two important purposes. They level the playing field among candidates and they ensure proper stewardship of public funds. Contributions to municipal campaigns are eligible for a rebate of up to 75 per cent and the campaign surplus must be repaid to the city after the campaign. The $27,000 dinner was paid for with public money.

Removal from office is a severe sanction. It puts the successful candidate out of a job and deprives voters of their elected representative in city hall. For most violations of municipal elections laws, the legislation provides a range of sanctions from a fine to jail time. A candidate can raise a defence of “good faith” or “inadvertent error” and keep their seat.

But when it comes to exceeding spending limits, the legislature took a different approach. The eject button is hit automatically for any candidate who files a campaign return showing overspending. There is no discretion and no defence. A lesser penalty would lack deterrent force. Setting a fine would allow wealthy candidates to buy their way into office, the very problem the spending l i mit seeks to prevent. If they get to keep their seat, the fine would be money well spent.

In effect, removal from office is prescribed as a mandatory minimum penalty. Mandatory minimums are usually thought of in the criminal law context.

Removal from office pales in comparison with the severity of penalties meted out by criminal courts. But the basic mechanism is the same: a person commits an offence and is subject to a penalty without room for discretion.

In theory, the law applies equally to all, but in practice the courts have shown a particular willingness to accommodate city councillors trying to get their jobs back. An extraordinary line of lower court cases simply declines to apply the penalty for campaign overspending.

Although the legislation does not provide a “good faith error” defence to automatic removal, the courts have imported that defence from a completely different part of the legislation. The Karygiannis case is the latest in this genre. Justice William Chalmers held that it would be “absurd” to remove Karygiannis for committing a technical error in his campaign return.

Deliberate overspending is no technical error. Karygiannis claims the $27,000 dinner was onside because the event was held for donors. He could not have missed the fact that the election had been over for two months by the time the dinner hit their plates. He cannot have been raising money for an election he had already won. The amount went well above the $6,100 spending limit for thanking campaign supporters — a rule that he would have been well aware of as a city councillor. Spending this money in the face of the rules sends a clear message: “You can’t touch me.” He didn’t spend this money by accident. He knew it was illegal and he did it anyway.

The real injustice in this case is not so much that Karygiannis escaped automatic removal from office. Canadian law would be better off if we left room for humanity in all decisions about punishment. But that relief from mandatory penalties should be available to everyone equally. Not just the powerful.

The eject button is hit automatically for any candidate who files a campaign return showing overspending