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Former Oshawa councillor could run for office while in custody, bringing attention back to Ontario’s election laws

Former Oshawa councillor could run for office while in custody, bringing attention back to Ontario’s election laws

You are not allowed to hold office as an elected official in an Ontario municipality while serving jail time - after the year of city-level scandals we've seen, everyone in the province knows that.

But apparently there's no rule about running for office while in custody, and a former Oshawa councillor is looking to make use of the loophole.

We've seen the justice system and municipal politics cross streams quite a bit in recent memory, but this latest case could reach an entirely new level, and in doing so bring a fresh spin to what is becoming a quickly-notorious section of Ontario's election laws.

Robert Lutczyk is currently mounting an election campaign from behind bars, after being charged with kidnapping Oshawa's city solicitor in 2012.

Lutczyk is not currently on the official list of registered candidates, but that may only be a matter of time and legalese.

The Durham Region News first reported on Lutczyk's most recent election bid last week, noting that nomination papers were presented on Aug. 20, but had not been formally accepted.

Apparently, the paperwork may have been in order but the agent who presented them did not have proof he was doing so in an official capacity.

“He was attempting to file by an agent and there was no written evidence appointing the agent to act on his behalf,” Oshawa information manager Jason McWilliam told the News.

Lutczyk served as an Oshawa councillor from 2006 to 2010 and returned to the spotlight two years later amid a series of scandalous allegations.

According to a Toronto Star report from the time, Lutczyk allegedly took David Potts hostage at gunpoint and before surrendering after an overnight standoff with police.

Lutczyk is being held in custody while awaiting trial, but the trial has not yet happened. Which is perhaps part of the reason why he is free to seek a council seat.

According to the Ontario Municipal Elections Act, anyone serving a jail sentence cannot run for office.

This has to do with a person's official residence. If you are in prison, you are not considered a resident of the municipality and are therefore not eligible to vote. If you are not eligible to vote, you are not eligible to run.

If this sounds at all familiar it is because Ontarians are becoming very familiar with Section 29 of the Municipal Elections Act.

It was heavily debated in London, Ont., earlier this summer when mayor Joe Fontana, a former Liberal MP, was found guilty in a spending scandal involving his son's wedding.

The Act states that if Fontana were to have been sentenced to time in prison, and served even a day of that time, he would have become an ineligible voter and it would have nullified his position as mayor.

In the end, Fontana stepped down as mayor, and was later sentenced to four months of probation. So in theory he could have held on to his post, though with council turning on him it would have likely been tougher in practice.

But the Municipal Elections Act has been cited more frequently in Toronto than anywhere else, as Mayor Rob Ford faced the possibility of charges in a police investigation into drug use and potential connections to the criminal underworld.

Ford still has not been interviewed by police in the matter. And while it no longer seems likely that Ford will be charged, there was a time when that appeared to be a distinct possibility.

It should be noted, however, that Ford has had separate run-ins with the Ontario Municipal Elections Act, including an audit finding that he overspent during 2010 election campaign, for attempts to solicit donations from lobbyists and most recently by filming a campaign video in his taxpayer-funded office. But these are very different from serving time.

What makes Lutczyk's situation different, however, is that it appears his trial won't be until after Election Day. This means that Lutczyk would be eligible to vote, and run, in the election. And it means there's a chance he could even keep his seat even if he was elected.

“Right now he’s not serving a sentence of imprisonment, so therefore it looks like he does meet the eligibility or the qualifications to be an elector,” municipal lawyer John Mascarin told the Star. “Technically he’s allowed to run, he’s allowed to be elected, and he might even be entitled to hold office, which is really bizarre. I don’t think that was the intent (of the legislation.)”

It is a thoroughly interesting time for municipal politics in Ontario. It seems we’re constantly learning more about even the most noted sections of the election laws.