This is a stupidly long post, mainly because I’m hoping to provide enough background info for people who don’t know all the details around Rob Ford’s conflict of interest case. If you’re relatively well-versed in the issues already, feel free to skip to the bottom (“Summary”) where I lay out the logic I used to correctly predict the decision by Justice Hackland.
I was waffling on whether to write this post or not, but then Chris Selley wrote at the National Post this morning:
And just when you thought it couldn’t get any wackier, the judge declaring Ford eligible to run in the by-election, against the plain meaning of his judgment, added yet more chaos.
This statement, and its variants, are flying around quite a lot in the week since Justice Charles Hackland’s decision came down. Some have even gone so far as to suggest that Hackland changed his mind between Monday and Friday morning, when he changed the text of his ruling to remove the ambiguity around Ford’s qualification. There is no evidence that Hackland changed his mind, but there’s substantial evidence that, in the face of some sloppy writing in one (1!) sentence, a whole bunch of people (including, alas the City Solicitor) read what was otherwise a pretty clear decision wrongly.
I wasn’t sure I was going to write a post about how I correctly predicted that Ford would indeed be removed from office, but would not be disqualified from holding office again, because who wants to hear a blogger crow about being right? So let me preface all of the following by saying: I could have been wrong. Absolutely nothing in my reasoning was particularly quantitative, and Hackland could have simply decided he saw merit somewhere I didn’t.
But as it turned out, the reasoning I used to arrive at my prediction proved correct, this time. So I’m hoping that this post is read less in a sense of triumph and more “this worked for me, this time, and it might work for you next time.”
Getting it Right I: the law
A confession: someone pointed me to the text of the Municipal Conflict of Interest Act weeks before Clayton Ruby and Paul Magder announced their lawsuit. In response to John Lorinc’s reporting in the Globe and Mail, I was sent a missive whose content can be faithfully summarized as “oh shit oh shit oh shit this just got real”.
Ten months later I’m not sure there’s really anything to say that improves on that, but onwards.
So I did some quick googling of the law, the City of Toronto Act, and the most relevant case in CanLii for the MCIA, Mondoux v Tuchenhagen (Superior Court ruling here, Divisional Court ruling here). Some day I’ll write a book titled “Everything I needed to know I learned by learning everything I needed to know.” A bunch of things became very clear:
1) Rob Ford was screwed. Or at least, the legal road ahead of him was going to be wildly more difficult than a lot of people subsequently assumed.
2) While the law allows for a number of defences if you’ve been found to have breached the Act, none of them seemed to offer Rob Ford any kind of shelter. Reading Tuchenhagen made this very clear. (I’ll explain in detail in a bit.)
3) The City of Toronto would almost certainly be heading into a by-election if Ford’s appeals didn’t take us past November of 2013.
But of course, I am no lawyer. So I was ready to go into the arguments at court and have my mind changed if, for example, Ford’s counsel Alan Lenczner presented a serious argument that hadn’t been raised in previous case law, or if I’d simply misunderstood some basic elements of the law. (Corresponding with several municipal lawyers left me confident that I hadn’t, but still.)
II: The Court
At this point it’s axiomatic to say that Rob Ford’s greatest enemy is Rob Ford. This was as true as ever on the day of Ford’s court appearance where his own testimony undermined possible avenues of defence against Magder’s suit. (Note to observers: this is why Clayton Ruby is a man of substantial means.)
To summarize, the Conflict of Interest Act offers Two major defences if you’ve breached the Act (which it was clear Ford had.) One comes from S 10 (2):
if the judge finds that the contravention was committed through inadvertence or by reason of an error in judgment, the member is not subject to having his or her seat declared vacant
And the other comes from S. 4 (k), which says that the mandatory penalty of the act doesn’t apply if the pecuniary interest:
is so remote or insignificant in its nature that it cannot reasonably be regarded as likely to influence the member.
To take these in order: “inadvertence or by reason of an error in judgment” cannot be a matter of saying “oops, I wish I hadn’t done that.” To invent a hypothetical example that might work (again, I am not a lawyer) you would need to argue that while your wife works in the Parks Department and you voted on that matter, it was only because the agenda was confusing (this is not uncommon) and you thought you were voting on the Solid Waste department. It would be especially helpful if you didn’t speak on the matter.
But councillors frequently declare conflicts on matters where their spouses work in city departments, so this kind of thing doesn’t happen if you’re seriously trying to obey the law.
The other major defence, insignificance, isn’t simply a matter of “oh well that’s pocket change, he obviously wasn’t being bribed”, at least not according to case law. Rather, Ford had to demonstrate that he was voting on the matter for some reason having nothing to do with the money. Instead, in his remarks to council that night, he said explicitly he thought it was absurd he would have to pay back this money himself.
So even before the case opened, Ford seemed to have a tough road ahead. His testimony only made things worse: to summarize a day’s worth of strained listening in a stuffy Ontario courtroom, it became clear that a) Ford didn’t speak or vote inadvertently, b) the money wasn’t insignificant to him, and most damningly of all, c) he spent 12 years as a councillor and Mayor obliged by his oaths of office to learn about the MCIA and utterly, totally, obstinately refused to do so. Instead, at the late date of his court appearance, Ford and his legal team tried to invent an alternative definition of “conflict of interest” that, alas, had nothing to do with the text of the act.
Ford’s legal team didn’t limit themselves to the defences in the MCIA, of course. But Lenczner’s further arguments about the MCIA all amounted, in my view, to asking Hackland to nullify the law or read it so narrowly as to exclude almost everything in the real universe. Hackland might have decided to do that, but Lenczner failed to give him an obvious reason to do so.
This is not a situation that winning court cases are made of.
III: After court
But within a week of the court appearances, many observers started saying things like “of course a judge isn’t going to remove the sitting Mayor of Canada’s largest city.”
A whole bunch of reporters, pundits, and others seem to have expected a senior justice of Ontario’s Superior Court to have come to the Ford case desperate to find anyway not to apply the plain text of settled law. And Hackland may have been willing to find some way to save Ford, but the Ford-Lenczner team utterly failed to give a convincing (or even face-saving) reason to do so. Based on the facts of the law and the arguments made in court, exempting Ford from the law would have amounted to Hackland stating that he was afraid to apply the law.
And it seemed foolish to assume that Hackland got in to the judging business because he was afraid to apply the law. As it turned out, he wasn’t.
Hackland’s decision is available here, and as it’s not particularly mysterious or opaque (with one exception!) Hackland finds that Ford’s actions were not inadvertent, not an error in judgement, and that the money involved was clearly at the top of Ford’s mind when he spoke and vote on the matter. So, having broken the law and having no workable defence, the seat of the Mayor of Toronto was vacated under the law.
IV: The exception!
Nothing caused more consternation in Hackland’s ruling than the last four words of this sentence:
In view of the significant mitigating circumstances surrounding the respondent’s actions, as set out in paragraph 48 of these reasons, I decline to impose any further disqualification from holding office beyond the current term.
Because “current term” has a specific legal meaning under Ontario law, many people not unreasonably assumed that Hackland was barring Ford from running or being appointed until the beginning of the next municipal term begins, in this case 2014. But read in the context of the rest of Hackland’s decision that seemed to me wrong, and there were specific important things missing from Hackland’s decision if it was going to be right.
Hackland, like many observers (including me) seems to think that it’s regrettable he has only one punishment to mete out under the law. This comes through repeatedly in his decision, most directly in paragraph 48:
I recognize that the circumstances of this case demonstrate that there was absolutely no issue of corruption or pecuniary gain on the respondent’s part. His contraventions of the municipal Code of Conduct involved a modest amount of money which he endeavoured to raise for a legitimate charity…
and further in paragraph 50:
while the respondent’s conduct in speaking and voting at the February 7, 2012 City Council meeting was far from the most serious breach of s. 5(1) of the MCIA, removal from office is mandatory unless the respondent’s contravention of the MCIA was committed through inadvertence or by reason of an error in judgment.
So I read Hackland’s decision as him imposing the minimum possible sentence based on his breach of the act, and assumed that Hackland was misusing the words “current term” because of his unfamiliarity with the City of Toronto Act (Hackland’s normal area of operations is eastern Ontario.) And this is important: the minimum possible sentence for Rob Ford doesn’t disqualify him from office.
The section of the act that removes Ford from office is S. 10 (1) a. The section of the act that would have disqualified Ford from running again or being appointed is S. 10 (1) b. This may sound trivial, but it’s not: Rob Ford is a rights-bearing citizen of the Province of Ontario, and he has the right to stand for public office until the law strips him of that right.
When a judge wants to strip someone of a political right, they don’t leave it up to the interpretation of four words in a kludge-y sentence. They write something like “further, using the powers of S. 10 (1) b, I disqualify Rob Ford from office until October 27, 2014″ or something. That sentence wasn’t in Hackland’s decision, and there was no evidence he intended it to be there—all of the text of his decision indicated he didn’t intend to punish Ford more than the law required.
So I was frankly shocked when the City Solicitor declared that her understanding of the decision was that Ford couldn’t run until 2014. What that translated to was that the Solicitor’s advice was that the City Clerk would have to keep Ford off any by-election ballot, an action Ford was sure to contest in court and which I suspected the City would lose.
So that’s almost 2,000 words on how I ended up being right about Ford’s Conflict of Interest case. But I want to stress once more that nothing in this was certain to be right, but that it was more than just a guess.
- The text of the law was against Ford.
- The settled case law was against Ford.
- Ford’s statements in court hurt him further.
- His lawyers were unable, in my (and the judge’s!) view, to present a strong enough argument for exempting Ford’s actions.
- Judges don’t get into the judge business because they’re looking for ways to not apply the law.
- That said, the judge would look for the minimum possible punishment under the law because of the facts of this case.
- That punishment is vacating the office but allowing Ford to run again immediately.
- The preponderance of evidence—and the lack of important contrary evidence—leads me to believe Hackland never intended to disqualify Ford from office.
And more speculatively than any of that, I think the real-world effect of Hackland’s decision appeals to what I imagine judicial culture is in cases like this: Ford isn’t being “punished” in any meaningful sense, rather the judge is forcing Toronto’s political system to judge and punish him. Toronto City Council will either vote to appoint a replacement or they could, hypothetically, appoint Ford back to the Mayor’s office to serve until 2014. Or they can choose to go to a special election, in which case it will be the people of Toronto who choose what Ford’s punishment should be, and whether his deeds were severe enough to warrant his firing.
Which is exactly as it should be.