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Released on April 17, 2017 @ 21:00 EDT


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.

WikiLeaks Sudbury
April 2017

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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