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.
11 comments
What seems evident to Ford (and his supporters) is that he unequivocally understood that he was acting in good faith inasmuch as the money collected ultimately was destined to assist kids play football. Whether the is a legal argument that will hold up or not is for the judge to decide. I would also argue that in my view Ford’s statement that he “absolutely” intended to stand to speak in no way removes defenses based on inadvertence or a lapse in judgement given (as you have previously noted) the mayor’s long history of recusing himself in such situations. This particular instance appears to be an outlier. It is interesting that those predisposed against Mr. Ford have never doubted his lack of judgement in the past even taking glee in meticulously detailing said lapses but in this case when it serves their purposes the Mayor is all of a sudden a lucid agent that never makes a mistake.
This really is a witch hunt. Ford did not stand to gain from this. Furthermore it pales in comparison to the regular practice of councillors selling tickets to campaign fundraisers to developers as an unspoken quid pro quo for assistance in dealings with city departments. If Ford called each of the donors to the football charity instead of using his letterhead, the outcome would have been the same or perhaps even more persuasive. Ford being Mayor was evident to all. Letterhead or not. At worst he should reimburse the city for the cost of the paper.
So its a witch hunt when he doesn’t follow the rules? This is called comeuppance. Ford is getting exactly what he deserves. He spent years trying to find fault with small things lie paying for muffins or watering plants at city hall. When someone finds something small and menial about him it should be overlooked?
Fact is, this is not menial and despite the claims above, Ford has a lot of gain by this: he asked lobbyists, who do biz with the city, to give to his foundation. Who benefits from the foundation? Rob Ford does by looking like a great guy giving equipment to needy kids (that is purchased by others). Even worse, he used the City’s letterhead to get the money. Its just bad form all around.
If that doesn’t smell like conflict of interest, no matter the size of money involved, than what is?
My solution would be to allow him to finish his term but not be allowed to run in next election. All interest are served with this: the democratic voice of the people is respected yet Ford is punished for violating the office f the mayor. Simple and reasonable.
If Rob Ford wins his case, then I would like to sell my child’s school fund raising chocolate bars using “Spacing Toronto” stationery.
Not going to, but it is the same as Rob using the city’s property to solicit funds for his charity.
Laura, do you really believe that everyone that contributed was unaware that Rob Ford was the Mayor? The simple test in this matter is that if Mayor Ford did not use his office letterhead there would be no case. If you believe otherwise then you must object that he solicits on behalf of his charity while in office. Do you hold all councillors to the same standard? Would changing the the name of the charity make remove your objections?
Glen: Why the questions for me and not the mayor? Those are the questions he needs to answer. Yet you don’t refute that he broke confilict of interest rules? I do hold all councillors to that standard.
And that’s part of the point: he is the mayor and should know these things inside and out. The fact he’s admitted never reading the councillor hand book, never reading the conflict of interest act…. If as mayor he can’t follow basic rules — or even worse denies that those rules should apply to him, or even worse doesn’t understand why they apply to him — than he should be removed from office.
Also, I think Ed Keenan said it best today at the Grid:
“Why does he jeopardize his political goals over such easily avoided things? Why did he repeatedly violate council ethical guidelines to solicit donations for his charity in the first place? Why did he do it again and again after being warned by the integrity commissioner?
This isn’t an ideological complaint—the political riddle is why the mayor insists on being his own worst enemy. Denzil Minnan-Wong, one of Ford’s most loyal council allies, told the Toronto Sun this week that his constituents “wish there weren’t so many missteps” from the mayor. “These are problems that are easily avoidable and easily dealt with, so they are bothered by the lifestyle issues that are popping up.”
Glen, this is not just about soliciting or not soliciting. This is also about Rob Ford loudly voting on the “Rob Ford should not have to pay back $3,000 dollars” motion despite being told that he should not vote on the motion.
Thank you Leo!
For too many people think the conflict of interest thing is in him soliciting donations, it’s not! The conflict came when he spoke and voted on a decision about whether or not he had to pay money back.
Given that he has recused himself for conflicts of interest before, he clearly knows what a conflict of interest is and there’s no way that he wouldn’t have know that there was a conflict of interest when voting on whether he had to pay money or not – it’s about as perfect an example as you could hope for.
All the stuff about the kids and the football and the small sum of money are all a smokescreen. The real issue is him voting in a vote that was about him!
Clear cut case.
Whatever side of the fence one is on with respect to this issue, I think that everyone would have to agree that this whole episode shows a colossal lack of judgment on Ford’s part. I don’t agree with Glen that this is a witch-hunt (the mayor acted too inappropriately for that) but at the same time I don’t agree with those who seem to think that the facts of this episode are worthy of using the courts.
I don’t like the fact that Ford is mayor… but I also know when individuals are pursuing a technicality that trivializes the notions of “conflict of interest” and the proper course of justice. That this episode has gone on when so many major sole-sourced contracts have been awarded in Toronto have raised barely a whimper is beyond belief.
I agree with SamG. There are other things worth investigating, but this is the mayor’s own doing. He reaps what he sows (even if he doesn’t agree with or understand that, like so much of today’s testimony revealed).