LORINC: Is Ford ‘conflict of interest’ a crime or misdemeanor?

It’s time for everyone on the left to exhale.

No judge is going to strip Mayor Rob Ford of his seat over his mystifying decision to speak during the Feb. 7 council debate about the integrity commissioner’s latest volley over the lobbyist donations to his football foundation.

Sure, that’s the scenario that Clayton Ruby, representing Toronto resident Paul Magder, hauled up the flagpole yesterday morning. Indeed, Ruby spent much more time talking about the mouth-watering removal-from-office penalty than the rather broad defense available to Ford: that he persuades the court that he made an error in judgment,”as set out in the Municipal Conflict of Interest Act.

You can almost see the exchanges in court: Ford, called to testify, will spend a lot of time answering his lawyer’s softball questions about the football foundation and his good works. They’ll talk about his schedule, the job pressure, the political events on that day, his selfless desire to lighten the load for ordinary Torontonians.

Finally, said lawyer will ask the mayor to confirm that he neglected to declare an interest, spoke and voted.

Ford will do all of the above.

The lawyer will then ask if he made an error in judgment.

Ford will say he did.

The lawyer will ask if he’s learned a lesson.

Ford will say he has. `To err, etc.‘… or words to that affect.

A round of contrition shots for everyone, hold the ice.

Ruby, on the cross-examination, will succeed in having Ford confirm the record that we all know. But he’ll eventually run into a wall. If the mayor acknowledges in court that he made an error in judgment, Ruby somehow has to prove that Ford did, well, what? Knowingly attempt to mislead council for nefarious purposes? I don’t see how he makes anything stick if Ford ‘fesses up on the stand.

Perhaps we’ll end up with a bloody-minded hanging judge who is keen to make an example out of a very high-profile transgressor. But my guess is that Ford, who has always worn his many imperfections on his sleeve, will walk out of that court looking like a politician who is fallible, imperfect but contrite — the rough-at-the-edges workaday guy who attracts a certain sympathy from many voters.

As for Ruby & Co., I predict they won’t be generating much sympathy. For the anti-Ford left, they raised the ever-so-tantalizing prospect of essentially impeaching the mayor but then failed to deliver the goods. For the galvanized pro-Ford right, their guy is re-confirmed as the flawed by well-intentioned victim of a pinko conspiracy. And for the many Torontonians who see City Hall as the biggest and strangest gong show in town, the spectacle only proves what they’ve long suspected.

In fact, because we’re talking about the judicial process — in which the legal foreplay can go on for a very long time indeed — the aforementioned exchanges may not take place until some time in 2013. And so we can, and should, ponder the question of how a legal victory for Ford (which is to say, anything other than the nuclear scenario Ruby sketched out yesterday morning) will affect the next election.

Just saying.

None of this is to imply that conflict of interest isn’t really important, and particularly with those who hold high public office. Anyone who warns about the corrosiveness associated with a general atmosphere of rule breaking is absolutely correct. Yes, Virginia, there is a slippery slope.

But this specific transgression, to my eye, falls well short of the sort of thing that characterized the MFP scandal. Ford, for example, wasn’t speaking in favour of a lucrative privatization contract awarded to a publicly-traded company in which he owns shares with a significant market value. He was not promoting an outsourcing strategy knowing that his family business fully intends to bid on looming contracts.

If that kind of conflict allegation was involved, or if the amount owed was much larger, the error in judgment defense would fall apart like a wet paper bag.

In this case, it won’t because his was a more of a misdemeanor than a crime.

My question is, does the left really want to die on this hill?

photo by Jennifer Tweedie

 

19 comments

  1. I really hate to be *that* guy, but…

    Isn’t a misdemeanour, by the very definition of the word, a crime?

  2. I’m sorry, I don’t understand why you are calling out ‘the left’ for this.

    ‘The left’ didn’t file a lawsuit. One guy did. Many people I know on ‘the left’ think this is pretty foolish. Others think you use the tools you have available.

    A huge swath of people on ‘the right’ also think Ford does not belong in office. He’s a conservative by description, but a spoiled, spendthrift wastrel by demonstration.

    Strict adherence to the letter, rather than the spirit of the law could be said to be a ‘rightist’ way of thinking (e.g. Scalia’s emphasis on textualism and originalism).

    Both left and right should share an interest in their governments following the law. Ford was wrong to use his council position to solicit funds, he was wrong to ignore the integrity commissioner, and he was wrong to weasel out of it. Council was wrong to let him.

  3. I agree with this sentiment. While some perhaps secretly hope for this round-a-bout impeachment, the left on council would be wise to very publicly speak out against this action.

  4. Good column, Mr. Lorinc!

    Mayor Ford has often shown contempt for various rules, believing them to be more about politics than right & wrong. The use of the Conflict of Interest Act in this way only confirms Ford’s belief, and brings discredit to the law.

    My hope is there is a longer play here. I am not so worried about football equipment for kids, but I am concerned when I hear Ford boasting about how businesspeople are calling him up “all the time” to make offers on waterfront assets and other deals. We still don’t know what made private developers think it was worthwhile to prepare a costly waterfront plan with monorails and a Ferris wheel. Ford is secretive about his itinerary, and there seems to be a lot of activity going on that is not being recorded in the lobbyist registry. Perhaps this case offers an opportunity to ask Ford about his understanding of how the rules apply in general, beyond football equipment.

  5. Good points. But it says a lot that an error in judgment, rather than raising questions about a guy’s fitness to be mayor, is actually a defence against those questions.

  6. Ford can say he made an error in judgment but his specific situation has to be “judged against the objective standard of a reasonable person in the place and circumstances of the official” (see: Baillargeon v. Carroll, 2009 CanLII 4510 (ON SC) http://canlii.ca/t/22f0h

    It’s not enough to say, “I didn’t know, I made a mistake, I screwed up, I therefore have a defence”, the mistake is then judged against the standard of what a public official with a similar length of experience, etc. would have done. Given the facts, would the “reasonable person in the place and circumstances” of Ford have perceived a potential conflict? Would they have declared a conflict of interest and abstained from debating and voting on the matter? I suspect the answers to these questions may be yes. It’s really hard not to see the conflict. If Ford’s actions fall below this standard, then it appears that he cannot avail himself of the defence.

    While I’m not convinced the punishment of being stripped of office is proportionate to the crime, the judge appears to have no discretion once certain findings of fact are made. I suspect such a high profile case will result in some reform to MCIA. It will really be an interesting one to follow…

    Rob

  7. IF this was one small, isolated incident, i might agree. but look at robby’s behaviour in the past. the guy honestly thinks rules don’t apply to him. the bullying, the libel, the illegal campaign funding, it all adds up. and on this issue alone, he has received SIX letters from the integrity commissioner telling him to repay the money. he’s recused himself from votes before, so not to recuse himself from this one AND make a speech which could well have influenced how council voted on the motion speaks not so much of incompetence, but a deliberate fuck you to everybody.

  8. The error in judgement seems quite obvious to me and after all his run ins with the conflict of interest rules I think it should have been obvious to the mayor, too.  But why was it not obvious to the other councillors and the media present at the council meeting when it happened?  Did you all sit back and watch Ford step in it without saying anything?

  9. I appreciate where you’re coming from, John, and I share some of your reservations about the wisdom of Mr. Ruby’s application. I question the above analysis you’re provided, however.

    You write “Ruby, on the cross-examination, will succeed in having Ford confirm the record that we all know. But he’ll eventually run into a wall. If the mayor acknowledges in court that he made an error in judgment, Ruby somehow has to prove that Ford did, well, what?”

    With respect, I think you misunderstand the legal situation. Mr. Ford is accused of violating a provincial regulatory act, not the Criminal Code. There is no “mens rea” or moral component to the legislation – it is more akin to a strict liability offense than a crime. In order to establish that it has been violated, all Mr. Ruby must do is satisfy a judge that Ford violated s.5(1)(b) of the Act by both speaking to and voting on a matter that he had a pecuniary interest in. If this fact is found, Mr. Ruby’s work is done and the the Act mandates that the judge in question must declare the seat vacant. What S. 10(2) does is give Mr. Ford the opportunity to argue that he violated s.5 through inadvertence or error in judgement; this however is his responsibility and if he fails, there is no wiggle room in the Act to allow him off the hook, hanging judge or not. It will likely be insufficient to merely say “I made an error in judgement” – this is something that the judge must find as a fact.

  10. These musings of the political motives behind Magder’s Notice of Application are the result of a trap laid due to the weak enforcement mechanisms regarding politicians and political parties.

    Whereas normal citizens are constantly scrutinized by “unpartisan” local police hiding behind lightpoles with radar guns, or CSIS, or customs officials or the RCMP, the OPP or even CRA agents, there is no sanctioned enforcement agency keeping our politicians in check. The onus is on some poor yobbo from the public to either pay or find a pro bono lawyer to help them convince a judge or number of judges over a very long period of time that the trangressor broke the law and needs to be punished.

    The result? Political candidates and elected officials play a quiet “come and get me” game, breaking and bending the rules. The moment someone challenges them, they scream that the left or the right is “out to get them”.

    If Ford is found guilty, he should be removed from office, as prescribed by the Conflict of Interest Act, sending the greatest message in the greatest public intrest that elected representatives must uphold the highest standards of conduct.

    Otherwise, this type of rule-breaking will not only continue, but also increase as members of the public become even more reluctant to play a role in this thankless voluntary enforcement process.

  11. @Rob: You raise an interesting point, and I can imagine that a judgment against the mayor would be appealed all the way up the legal food chain, perhaps resulting in some kind of legal answer to this question of whether the punishment should fit in the crime in such breaches. 

  12. John, I generally enjoy your work a great deal, but sometimes you pull out a column like this that is infuriating in its concern-trolling/faux-even handedness.  

    As Paul notes above, this isn’t a lawsuit by “the left” and Paul Magder doesn’t have to run this by anyone for approval.  I, nor Adam Vaughn, nor Shelley Carrol, nor any other anti-Ford internet commenter have any control over what he does.  The idea that “the left” is some monolith and should act in any one way is so utterly patronizing.  I’ll be sure to raise the issue at our next cabal meeting…the day we have one (I’ll also ask that that one guy stop it with the “Free Mumia” signs at all our peace rallies too).   So let’s be clear: this is not a move by “the left”.  It’s one guy.  Asking “the left” to disavow him is as stupid as asking Rob Ford to disavow all the racist/homophobic shit that gets spewed in the Sun comment sections.

    If you had reviewed prior incidents where the Municipal Conflict of Interest Act had been applied and where *removal* had been ordered, you might have noticed that the infringements were not very significant at all (at least as measured by financial interest).  These precedents set a pretty low bar, and weigh heavily against Ford.

    But what makes this excusism for Ford all the more galling (and I also think you misunderstand the nature of the defence under the Act) is that you were the one bemoaning the death knell of Toronto’s Integrity Commissioner ON THIS VERY TOPIC just last month.  It isn’t *only* a question of the money – although it is most certainly that.  It’s about Ford undermining the Integrity Commissioner’s process: he actively resisted being sanctioned, and succeeded in it.  And at the same time enjoyed a financial windfall as a result.  It seems to me – and to the John Lorinc of a month ago – that this sort of transgression is *far worse* than if Ford had breached the Act by, say, not disclosing an interest in a piece of property the City was buying for $3150.

  13. Rob,

    Here’s one of the precedent cases:
    http://canlii.ca/en/on/onsc/doc/2009/2009canlii4510/2009canlii4510.html

    As you can see in §§82 to 91, the judge there did take into account the trustee’s actual capabilities in deciding against the defences of inadvertence and error in judgement.

    That said, the judge did note Trustee Carroll’s long service, and the fact that he had been warned already, as indications that there could be no good faith argument for either. These conditions also apply in Mayor Ford’s case.

  14. Lorinc,

    You mention that due to the judicial process the case wont be before a judge until sometime in 2013, but the papers are reporting that they will appear in court on March 23rd.

    So, what will happen on March 23rd?

  15. John, I certainly share your concern here. Regardless of all nuances of the law and technicality, if this issue is pressed very hard, it may actually grant Ford some sort of political martyrdom, as his supporters and even many centrists will perceive it as a dirty political maneuver, an undue prosecution on him for merely helping teenagers to get some football practices from the pinkos. The backlash may actually benefit him.

  16. This piece does a better job defending Ford than his buddy Sue-Ann Levy put forth in the Sun today. Maybe she should take some lessons from you on how to write like a grown up rather than a forum troll…

    (FYI: This was to be an insult to Levy’s writing, not an insult to Lornic. I’m no fan of Ford, but from what I can tell this is trying to get him kicked out on a technicality)

  17. I think that the all-or-nothing penalty–removal from office–is too severe and could indeed give Ford the appearance of a martyr to his enemies if applied. But, like many other situations he’s found himself in, he’s had every opportunity to set things right, and refused to do so, until there is only one option left. In this case, he shouldn’t have solicited donations from lobbyists, and when told by the Integrity Commissioner and Council to repay the donations, he should have done so. And he shouldn’t have tried to “solve” the issue by submitting letters from the lobbyists that they didn’t want to be repaid. When the issue came to Council again, he shouldn’t have participated in the debate or the vote, and Council should not have excused him. My concern is that, if he is once again let off the hook for actions that he could and should have avoided, he will never stop flaunting the rules. What will it take to get it through his thick skull that there are procedures that must be followed, and that he is not exempt? He has a history of ignoring the rules, and showing even further contempt for his colleagues and citizens by continuing to ignore them even after being reprimanded.

  18. I think what is concerning skeptics on the left is that, if one were trying to make a case to impeach Ford, it seems that there is so much more that one could point to than one case involving such a low monetary value and with such little impact on how the city is run. What about the cost implications around Ford’s shenanigans on the transit file, just to pick one example? Recall that Ford has proven immune to other low-grade scandals, many of which were trotted out during the election only to be yawned off as “That’s just Rob being Rob.”

    Honestly, this sounds like getting Al Capone on tax evasion. Easier to prove and legally / technically correct, but not really getting at the essence of what has gone wrong with the administration.

  19. Sadly, Mayor Ford’s Conduct on this issue could be criminal. No evasions, no excuses, this Mayor feel’s entitled to a Status Above The Law.
    Ford must GO. Toronto need’s a By-Election right away. Smile everyone, this will make things better. Ford’s brother should also Resign before he’s Arrested for something serious.

    Retired Grandfather in Toronto, Age 70.

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