At Osgoode Hall, Ford and his lawyers tried once again to save his mayoralty.
Mayor Rob Ford was in court yet again on Monday, for another crack at defending himself against conflict of interest charges that could see him booted from office.
The hearing was an appeal of a November decision by Superior Court Justice Charles Hackland. That decision found Ford to be in breach of the Municipal Conflict of Interest Act, a misstep for which there is only one legally permissible penalty: removal from office.
Ford’s lawyer, Alan Lenczner, was trying to find errors in Hackland’s decision, while Clayton Ruby, the lawyer working against Ford, did his best to defend it. This demanded arguments that were extremely technical, many of them mired in complex references to previous judicial decisions.
Presiding over the court today was a panel of three Divisional Court justices: Edward Then, Lynne Leitch, Katherine Swinton. Their decision is expected in a matter of weeks. The options open to them: uphold the original decision, or return any of the other decisions that were available to the original judge, which range from clearing Ford entirely to finding him guilty and imposing a harsher penalty than Hackland did (by not only removing him as mayor, but barring him from holding municipal office for up to seven years).
The Municipal Conflict of Interest Act says a Divisional Court decision on a conflict of interest case is final. Assuming this turns out to be true (and there’s always a chance that a clever lawyer could argue that it’s not) neither side will be able to appeal the outcome of this appeal, whatever it ends up being.
Lenczner spent much of his time trying to convince the court of an argument that didn’t fly with Hackland: namely, that there is no legal basis for the complaint against Ford.
Lenczner’s argument is that the violation of city council’s code of conduct that gave rise to Ford’s predicament (Ford ran afoul of the City’s integrity commissioner after improperly soliciting $3,150 in donations for his private charity, the Rob Ford Football Foundation) should never even have come to a vote at council. That, Lenczner said, is because the City of Toronto Act outlines only two possible penalties for breaches of the code of conduct. The penalty council chose to impose—forcing Ford to reimburse his donors—isn’t one of them.
“With respect,” Lenczner said to the judges at one point, “that’s the end of this case.”
Nader Hasan, who was arguing against Ford alongside Clayton Ruby, made the opposite point. He argued that legislation like the City of Toronto Act is usually interpreted broadly by the courts, meaning council would have been within its rights to penalize Ford in the way that it did.
Hasan also argued that even if council didn’t have the authority to order Ford to reimburse the money, Ford is still guilty of conflict of interest. In his remarks, he tried to illustrate the absurdity of a world where conflict of interest law doesn’t apply to illegal motions. “Councillors could go around passing illegal resolutions that benefit councillors,” Hasan said. “And those councillors could vote on them.”
Ruby—who was arguing on behalf of Paul Magder, the Toronto resident who brought the case against Ford—devoted a large part of his time to another of Ford’s defenses: that the mayor’s conflict of interest was a result of a simple error of judgment. Under the Municipal Conflict of Interest Act, an error of judgment is a forgivable offense. If Ford committed one, he’s off the hook.
Unfortunately for the mayor, “error of judgment,” in this case, has a very restricted legal meaning that can make it difficult to prove. Ruby took full advantage of this in his remarks to the judges. He argued that courts have never granted error-of-judgment exemptions to defendants who, like Mayor Ford, have neglected to inform themselves of what the law requires of them. In September, Ford admitted, under oath, to never having read his councillor’s handbook, which addresses conflicts of interest. He also said he’d never attended councillor orientation.
An honest error of judgment, according to Ruby, requires that the defendant be acting in good faith. But in Ford’s case, Ruby said: “It’s not good faith. It’s arrogant…And it’s not, in this case, even honesty.”
Lenczner, for his part, maintained that Ford is “an honest man,” and one who made an honest mistake.
In general, arguments from both sides were similar to those used before Justice Hackland in September.
Mayor Ford sat impassively on a bench inside the courtroom throughout the day’s proceedings, occasionally exchanging glances with his brother, Councillor Doug Ford (Ward 2, Etobicoke North). Deputy Mayor Doug Holyday (Ward 3, Etobicoke Centre), who would take over as interim mayor should Ford be booted from office, was also in attendance. So was council Speaker Frances Nunziata (Ward 11, York South-Weston).
After both lawyers had completed their arguments, Justice Then promised the gallery that the court would do “its level best” to render a swift judgment on Ford’s fate. The decision, Then said, will be released first to the lawyers on both sides, and then publicly, on Canlii.org.