When the lawyers, the press, and the idly curious take their places in a University Avenue courtroom this morning, all eyes will be on the unprecedented spectacle of a sitting mayor forced onto the witness stand. There, Rob Ford will try to explain, under oath, why he didn’t breach the Municipal Conflict of Interest Act in February, when he spoke and voted on an item in which he had a financial interest.
Ford’s lawyer, Alan Lenczner, is expected to mount several arguments on behalf of his client — two aimed at discrediting the legal framework around council’s code of conduct process, and two directed towards the defenses allowed in Section 10(2) of the Act. These latter allow a court to dismiss an application if the breach was inadvertent or an error in judgment.
During his much-quoted deputation with Clayton Ruby, Ford made quick work of defense number one. When Ruby asked if he’d meant to stand up and speak to the item, Ford replied, “Absolutely.”
In other words, the lynch pin in this trial has to do with whether Ford and Lenczner can convince the court that his decision to speak and vote represented an honest error in judgment — and this notwithstanding his contrition-free comments last week that the case was nothing but politics.
At one level, Ford’s defense seems like a no-brainer. If he hadn’t made an error in judgment, we wouldn’t be in this mess in the first place. Moreover, the error in judgment defense seems like a gaping escape hatch, a legalistic way of saying, “I really screwed the pooch this time.” Say a couple of Hail Marys and don’t do it again.
Too simplistic? I’m guessing the trial will feature a considerable amount of back-and-forth over the exact legal meaning of this phrase.
For the record, here’s what I found in the legal databases.
In a 2009 case involving allegations against former Vaughan mayor Linda Jackson, a judge wrote the following about the Act’s objectives:
“The obvious purpose of the Act [Municipal Conflict of Interest Act (1972)] is to prohibit members of council and local boards from engaging in the decision-making process in respect to matters in which they have a personal economic interest. The scope of the Act is not limited by exception or proviso but applies to all situations in which the member has, or is deemed to have, any direct or indirect pecuniary interest. There is no need to find corruption on his part or actual loss on the part of the council or board. So long as the member fails to honour the standard of conduct prescribed by the statute, then, regardless of his good faith or the propriety of his motive, he is in contravention of the statute.”
The ruling in that case included this lengthy passage from a 1979 judgment:
“This enactment, like all conflict of interest rules, is based on the moral principle, long embodied in our jurisprudence, that no man can serve two masters. It recognizes the fact that the judgment of even the most well-meaning men and women may be impaired when their personal financial interests are affected. Public office is a trust conferred by public authority for public purpose. And the Act, by its broad proscription, enjoins holders of public offices within its ambit from any participation in matters in which their economic self-interest may be in conflict with their public duty. The public’s confidence in its elected representatives demands no less… Legislation of this nature must, it is clear, be construed broadly and in a manner consistent with its purpose….” [emphasis added].
The language suggests that Ford’s endless refrain about the benign purpose of his football foundation may not cut the mustard, legally speaking.
In another 2009 case — in which school board trustee Oliver Carroll was turfed from office because he’d participated in staff budget decisions despite the fact that his daughter taught for the board – the judge may several noteworthy observations about the error in judgment defense:
- “Conflicted municipal officials can only be excused where his or her actions were reasonable when judged against the objective standard of a reasonable person in the place and circumstances of the official.”
- “In order to establish an error in judgment… it is necessary for the elected municipal official to have proceeded with `good faith’ as to that error of judgment. He or she must be honest, forthright and open, acting in complete good faith. The courts do not require perfection of conduct. However, good intentions and a complete lack of deceit and collusion are required.” [Emphasis added].
- “Trustee Carroll’s proposal, his voting and his discussion of the budget were all done at a time when he was aware of his conflict of interest. He knew that his motion could have an impact on his daughter because it dealt with the employment of teachers. Such conduct is not consistent with him exercising good faith as to an error in judgment. His participation in a conflicted situation did not simply happen once, it happened on numerous occasions notwithstanding the obvious conflict in each of the circumstances.” [Emphasis added].
In this case, it would be difficult for the mayor to dispute that he was not aware of the fact that the integrity commissioner had come after him repeatedly over the conflict associated with hitting up lobbyists for donations. Was Ford aware of his conflict in speaking to the motion calling for him to repay the funds?
“In my view,” the judge continues, “Trustee Carroll considered the advice provided to him on numerous occasions and simply chose to disregard it. As such, the defence of error in judgment is not available to him.” [Emphasis added]
What Ford knew and has admitted to under oath: that he’d be reminded to declare conflicts on many previous occasions during debates over items involving city printing operations, illegal signs and even the speed limit in his neighbourhood. He did as instructed. He also knew that integrity commissioner Janet Leiper was on his case to make good on her 2010 conflict of interest finding. But when he stood up to speak, did he “simply [choose] to disregard” all that earlier guidance?
Finally, here’s a passage I found in a 2011 judgment that positively glows with the kind lucidity and clarity that has been so lacking in Ford’s mayoralty:
“Municipal councils,” the judge opined, “require the dedicated efforts of good people who will give of their time and talent for the public good. What is expected and demanded of such public service is not perfection, but it is honesty, candour and complete good faith.” That’s the test.