Rob Ford's Conflict of Interest Hearing: Day Two

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Rob Ford’s Conflict of Interest Hearing: Day Two

Live updates from the courtroom.

Mayor Rob Ford, on his way out of the courthouse on Wednesday.

4:55 PM: The lawyers have shaken hands, and the judge promises to deliver his decision in a “timely” way. This hearing is officially over.

4:48 PM And that’s it. We’re done.

4:44 PM Now Hasan is rebutting Lenczner’s points about whether council’s 2010 decision to penalize Ford was outside its jurisdiction. As before, Hasan is arguing for a loose interpretation of the City of Toronto Act that would allow council to impose penalties that aren’t explicitly laid out there. He adds that there are cases where allowing a councillor to vote on an unlawful act by council would still put that councillor in conflict.

4:34 PM Ruby is done. Hasan takes the lectern to respond to Lenczner’s points about whether the Municipal Conflict of Interest Act applies to Ford’s case.

4:32 PM Ruby is rebutting Lenczner’s argument about how the Municipal Conflict of Interest Act should be read.

4:25 PM The judge tells Ruby he’ll reserve the right to hear further arguments after today.

4:20 PM The judge says he does think the money influenced Ford’s approach to the matter. “I think your client made that part of it crystal clear,” he says. Lenczner finishes and sits down. Now Ruby will respond. He says he’ll do so briefly.

4:20 PM Lenczner says Ford was right to speak and vote on his penalty, because it wasn’t City business. “He’s got a principle and he sticks to that principle,” Lenczner says.

4:15 PM Lenczner expresses some skepticism that Ford had a duty to seek legal advice on whether he had a conflict or not, but the judge disagrees. “I might say that,” the judge says. “That he has in those circumstances, a duty to go out and inform himself…I don’t think it’s a proposition that’s too far out there.”

4:10 PM Lenczner says Ford may have been wrong. “That’s what an error of judgment is. You’re wrong. But that is an excuse under this Act.”

4:08 PM Lenczner now getting into Ford’s “error in judgment” defense.

3:58 PM As the Globe‘s Kelly Grant points out on Twitter, this is sort of what Ford himself was trying to articulate yesterday, though he was doing it in a much more hamfisted way.

3:50 PM Now, Lenczner is arguing that the Municipal Conflict of Interest Act wasn’t written to deal with cases like Ford’s “It’s all about transparency,” he says. “Because there is no prohibition on a member of council gaining a benefit from a development bylaw. There is no prohibition on a member of council buying a piece of land through a numbered company. So it’s not that he can’t do anything.”

3:45 PM The judge asks Lenczner if he’s saying that Ford, even if he was in conflict, would have been within his rights to speak on his penalty if the penalty wasn’t lawful to begin with. Lenczner says yes, why not?

3:40 PM The judge expresses some skepticism about Lenczner’s argument that the Municipal Conflict of Interest doesn’t apply to Ford’s case, because council’s code of conduct and the City of Toronto Act take precedence. He seems to be entertaining the notion that all three can apply at the same time.

3:27 PM The judge says he thinks Lenczner’s argument is “a good policy argument,” but he’s skeptical that it’s supported by law.

3:24 PM Lenczner is now arguing that councillors ought to be able to speak during meetings on integrity commissioner’s reports about them. He says forbidding them from doing so would amount to “muzzling” them. Earlier, Ruby and Hasan argued that councillors can never speak on reports about them, because it’s always a conflict.

3:20 PM If Lenczner can convince the judge that council’s 2010 decision to make Ford pay back the donations was illegal, that might help the mayor.

3:17 PM Here’s the code of conduct. The part under dispute is section XVIII. It gives council the authority to impose either a reprimand or a pay suspension. And it actually says “either” of those two, which, as the judge has pointed out, makes it sound like those are the only two possible penalties. [UPDATE: September 7, 2012 5:45 p.m. Lenczner was actually talking about the penalties described in section 160 of the City of Toronto Act. My mistake. The appropriate passages have been corrected.]

3:15 PM Lenczner argues that the code of conduct City of Toronto Act restricts city council to just two types of penalties for integrity violations, and that Ford’s punishment for accepting the donations belongs to neither of those types.

3:13 PM Lenczner is going over the details of city council’s code of conduct.

3:05 PM Hasan and Ruby are done. Now Ford’s lawyer, Alan Lenczner, will speak.

2:54 PM Ford should have challenged council’s decision back in 2010 if he thought it was illegal, says Hasan.

2:52 PM The judge asks Hasan if he, like Ruby, is arguing that councillors can never speak or vote at council meetings on items about them. Hasan says yes, and that if councillors feel that council has treated them unfairly, they have other venues for disputing decisions.

2:48 PM There were about half a dozen police officers in the courtroom before lunch, and all but one are gone now. It seems most of them were here only because the mayor was.

2:40 PM Much technical back-and-forth about the specific wording and meaning of laws. In short, Ruby’s team is arguing that the Municipal Conflict of Act does apply to Ford in this instance because it isn’t superseded by any other law, and that city council had the authority to make Ford pay back the donations because the City of Toronto Act lets them.

2:26 PM Others are saying that Ruby’s guy is Nader Hasan, who is a partner at Ruby’s firm.

2:20 PM Specifically, Ruby’s guy is addressing Lenczner’s arguments that the Municipal Conflict of Interest Act don’t apply to this case, and that city council didn’t have the authority to fine Ford in the first place.

2:17 PM Ruby is done talking about why Ford shouldn’t be able to claim error in judgment. A lawyer who is part of his staff is now delivering Ruby’s response to a couple other arguments by Ford’s lawyer.

2:15 PM The onus is on Ford to prove he erred in judgment, says Ruby.

2:12 PM “Ignorance of the law is not an error in judgment,” says Ruby. An error in judgment, he says, is a mistake of fact, or a mistake in application of the law.

2:09 PM Ruby has resumed arguing, but the mayor and his staff are nowhere to be seen.

2:03 PM We’re back, though court isn’t in session quite yet. A court functionary just emerged from a back room to remind the gallery that “there is no gum chewing in court.” They hate gum.

Also, a guy in a Rob Ford t-shirt has taken a seat in the front row.

12:56 PM Lunch break. Court resumes at 2 p.m.

12:51 PM Ruby is now reiterating his opinion that Ford’s intransigence disqualifies him from using error in judgment as a defense. “My submission is, this pattern of defiance runs contrary to the concept of good faith,” Ruby says.

12:40 PM Ruby has been summarizing case law and reading excerpts from Ford’s testimony for the past fifteen minutes or so.

12:40 PM Ruby says of Ford: “His entire pattern of conduct shows that he chose to remain ignorant.”

12:25 PM Ruby is trying to argue that Ford knew he was possibly in conflict during the council debate on the February 2012 integrity commissioner’s report that’s at issue in this hearing. Ruby thinks that if Ford knew he was possibly in conflict, he was acting in bad faith when he spoke and voted on the matter, and therefore didn’t commit a simple “error in judgment.”

12:23 PM Ruby brings up the time Ford declared a conflict on an integrity commissioner’s report about him in May 2010. This seems to be a real lynchpin of his argument. If the judge agrees that this evidence demonstrates that Ford is effectively lying about his understanding of the Municipal Conflict of Interest Act, the mayor might find himself in a difficult position.

Yesterday, Ford said that he didn’t understand what he was saying when he declared that conflict, and that he did it only because the City solicitor told him to.

12:15 PM Ruby is now talking about Ford’s claim that he never glanced at the Municipal Conflict of Interest Act before yesterday. “If true, it is not a good faith error. He is deliberately not doing what any reasonable person would do,” Ruby says. It is reckless to proceed in ignorance all of his 12 years on council.”

“If you swear to uphold an Act and you don’t even read it, you are simply ensuring that you will breach it.”

12:09 PM Ruby now reiterating the fact that Ford has said he hasn’t read the council handbook, and didn’t attend councillor orientation when he was first elected. “He did nothing to comply with his legal obligations under the [Municipal Conflict of Interest] Act,” says Ruby. Nothing except rely on City staff to bring things to his attention.

12:09 PM Ruby points out that the Bellamy Report on the MFP computer leasing scandal identified the mayor as having an especially important leadership role in preventing conflicts of interest. Yesterday, Ford said that he doesn’t believe his responsibilities in this realm to be to more serious than they are for any ordinary councillor.

12:03 PM Ruby points out that Ford isn’t contrite, and hasn’t admitted to an error. “That is not someone who has made an error. That is someone who is doing deliberately what he believes is right,” Ruby says. He adds that Ford is an experienced municipal politician and should have known better. “It is not an error of judgment to be reckless identifying conflicts…”

12:00 PM Ruby is now going over why he thinks Ford can’t claim “error in judgment,” which would enable him to keep his job if found guilty.

11:56 AM And we’re back.

11:31 AM 20-minute recess. This liveblog will resume when court does.

11:27 AM The judge asks a question: Would Ford still have been in conflict if the integrity commissioner hadn’t recommended any sanctions? Ruby says yes, because council could still potentially have imposed a financial penalty. There would have been potential for financial conflict.

11:22 AM Now Ruby is reading some case law in an attempt to bolster his argument that Ford could have been in conflict even though the improper donations went to his foundation, and not to him.

11:20 AM Now some back and forth between Ruby and the judge over whether Ford had sufficient financial interest for a conflict. The judge seems skeptical. “Subject to you convincing me otherwise, Mr. Ruby, I don’t think the mayor had a pecuniary interest in this foundation,” he says.

11:13 AM Ruby sticks to his assertion that potential financial conflict is enough. But in this case, he says, there was clear financial conflict.

11:09 AM The judge is now questioning Ruby’s view that councillors shouldn’t speak on integrity commissioner’s reports that have a “potential” for financial conflict (as opposed to actual, obvious financial conflict). The judge points out that the consequences of that interpretation could be “sweeping.”

11:04 AM Ruby accuses Ford of lying (or at least contradicting himself) on the stand yesterday under questioning about whether or not he uses his City business card as a tool for soliciting funds for his foundation. At one time during his testimony, Ford (who gives out business cards to everyone he meets) said he talks about the foundation with everyone he speaks with. At another time, the mayor said he only speaks about the foundation with certain people he meets—generally only those he encounters at sit-down functions where conversations are longer.

11:00 AM Ruby, talking about Ford’s habit of soliciting donations for his foundation from people he meets, reminds the judge that the mayor even asked him (that is, Ruby) for a donation during the deposition. Lenczner rises and objects.

10:59 AM Ruby is going over the inconsistencies in some of Ford’s statements during his testimony yesterday. Right now he’s talking about Ford’s waffling over a claim, on his campaign website, that his foundation had raised $100,000. The integrity commissioner found the actual total was under $40,000.

10:55 AM Ford is here now. I’m not sure when he snuck in. He’s sitting at a table a few feet from Ruby, listening to him speak.

10:50 AM “[Ford’s] premise seems to be that the foundation is something that is his private undertaking,” says the judge.

Ruby argues that because council’s original decision required Ford to pay back the money personally, the separation between the mayor and his foundation is irrelevant.

10:48 AM Ruby reads a quote from Ford’s deposition where he admits that the reimbursement would need to come out of his own pocket, because the foundation had already spent the original money.

10:46 AM Now the judge questions Ruby about Ford’s assertion that the money didn’t benefit him, because it all went to the Rob Ford Football Foundation. What basis does Ruby have for saying that’s not true? Ruby turns to his documents and shuffles through them for a minute.

10:44 AM Now the judge puts a question to Ruby: What if council had decided to reprimand Ford in August 2010, rather than fine him? Would he still have needed to declare a conflict?

Ruby: Yes. Councillors should always declare, even if there’s only a potential for financial conflict.

10:39 AM Also, Ruby says, Ford has acted contrary to his weird interpretation of conflict of interest law. One instance was in May, 2010, when the Mayor declared a conflict of interest on another integrity commissioner’s report. That report is here.

10:38 AM Ruby is basically calling Ford a bullshitter.

10:34 AM “He has never explained the basis for his peculiar view of the law,” Ruby says of Ford, who espoused a peculiar view of what actually constitutes a conflict of interest yesterday. “My submission is that it is not a believable assertion because it is made by someone who has a 12 year tenure on city council,” continues Ruby. Also, he says, Ford’s argument hinges on an unlikely claim: that he never received a city council handbook, and never read the law.

10:34 AM Ruby is arguing that Ford acted with “an absence of good faith,” which if true might disqualify him from using the “error of judgment” defense.

10:34 AM Now Ruby will speak.

10:30 AM Lenczner says Ruby has given him new case law and new facta, and that he needs to read them before he can argue. He asks the judge for 10 days to submit something in writing.

10:27 AM Now we move into arguments. Ford’s lawyer, Alan Lenczner, will go first.

10:25 AM The judge says he’ll hold off on figuring out what to do with the Moscoe affidavit until he makes his decision.

10:18 AM Without Ford here as a headliner, there are far fewer people in the courtroom. Yesterday, we were near capacity. Today, there are plenty of seats.

10:12 AM Ruby wants the affidavit taken under consideration because he thinks it bolsters his case that Ford shouldn’t have relied upon City staff to identify conflicts of interest for him. Ford has admitted that staff aren’t obligated to advise him. Even so, yesterday he repeatedly mentioned that he usually depends on the City clerk and the City solicitor to warn him of conflicts.

10:05 AM It’s a very technical discussion, and so it doesn’t really bear repeating here.

10:04 AM But first, a lawyer who works for Ruby will argue whether an affidavit by former councillor Howard Moscoe should be taken under consideration by the court.

10:03 AM The judge asks Ruby if there will be any more evidence, and Ruby says no. We’ll be moving right into closing arguments.

10:01 AM We’re just getting underway here on the second day of Rob Ford’s conflict of interest hearing.

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