Late in the day on Friday, after four long days of trial testimony in the matter of Foulidis vs. Ford, and after a particularly long day of trying testimony by defendant Rob Ford, the mayor of Toronto, Justice John Macdonald dictated a ruling on a legal point about how some evidence could be admitted. He spoke slowly and carefully, but never seemed to hesitate, as for several minutes he rhymed off an impromptu essay: he outlined the ways in which the oddities of this case had created an interesting procedural question, cited the relevant rules and precedents, summarized the issues that had been laid out in arguments by the opposing attorneys and then explained his judgement on the question. If you had not been sitting there watching him listen to the arguments for the first time moments before, you would think he had deliberated on the matter for some time; it sounded as if he were reading from a textbook, or at least a prepared speech. The flow of the the logic was clear; every sentence, every clause–indeed, every word–appeared chosen carefully to make a very precise point that left no room for confusion about its reasoning or its effect.
It was an impressive display of off-the-cuff clarity and eloquence. Which wasn’t a surprise to those who’d been sitting through the trial all week–Justice Macdonald had consistently shown himself to be everything you would hope a judge would be–tolerant, patient and almost unreasonably wise, always able to instantly understand the arguments put before him, paraphrase them better than the arguers had, and direct everyone to the obviously correct solution.
As a civics teacher named Bob who’d come by to observe on his day off said to me outside the court building, the judge restored one’s faith in the justice system, in that he was very clearly the smartest guy in the room, and the wisest too–exactly who you’d want presiding over this process, and “preside” is exactly the right word for how he handled the court. (He also indulged the comfort and convenience of the press and public throughout, perhaps predisposing us to seeing his wisdom.)
So, no surprise that he can also rhyme off a judgement that can stand unedited in the legal texts. Still, after a full day of Rob Ford, it was a bracing contrast. Because Rob Ford’s commentary, as Toronto voters know well by now, is sort of the opposite of eloquent and clear and carefully deliberate. That’s no surprise either. But the trial exposed how Rob Ford encounters a sort of epistemological problem when he encounters a system, like the justice system, where evidence and facts are expected to underpin every judgement, and where finding the precise meaning of words is essential to determining guilt, innocence, or determining any course of action at all. This is not the way Rob Ford operates.
If that wasn’t clear already, it became clear throughout Ford’s cross-examination on the stand throughout the day. He was being sued for libel for suggesting, it seemed to the plaintiff George Foulidis, that the process by which Mr. Foulidis was awarded a city contract for his company Tuggs was corrupt, and that Mr. Foulidis was a participant in that corruption. The line of questioning to determine–when Ford spoke of “skullduggery and corruption” and in the next breath said “If Tuggs isn’t, I don’t know what is”– whether or not Ford meant to suggest that Foulidis himself was a participant in corruption took a long, confusing time.
Ford’s defense hinged, in part, on establishing that by “corruption” he meant “not following the approved process”–in this case putting the contract out to tender from multiple bidders–and that further, he had been speaking of city staff and politicians as corrupt, not Mr. Foulidis and the business he runs. So he had a couple talking points to that effect. So for a long time, Foulidis’ lawyer Brian Shiller and, eventually, Justice Macdonald got from Ford the treatment that the press gallery at City Hall experiences every day: Shiller asked a specific question–did you mean to suggest that the Tuggs deal was full of corruption and skullduggery?–and Ford would ignore the question and repeat his point that corruption, to him, meant not following the process. This back and forth went on for quite some time–10 or 15 minutes, as Shiller and then the judge became increasingly annoyed by Ford’s apparent outright refusal to address the question that was being asked. Finally, after a comment and some instruction by the judge, Shiller tried again.
“The answer is: Yes, Tuggs is an example of corruption and skulduggery.”
To which, at long last, Ford said, “Yes.”
But it was in the questions that proceeded from there that the epistemological crack widened: how did he come to believe that about Tuggs? Did he call Foulidis? Did he look up the documents? Talk to staff? “Did you do any background research at all?” Shiller asked.
Then how did he come to believe that the deal was corrupt, and that, as he told radio host Jerry Agar, there were illicit payments being made, “money under the table”?
“Just the deal generally,” Ford said, “I can’t pinpoint it.” He said that when the matter was debated privately in council, people were “going snake,” twisting arms to get the deal approved. He said that he’d heard about a dishwasher making $40,000 per year employed by Mr. Foulidis making a $750 donation to a politician’s campaign (Foulidis said in his own testimony that it was a pastry chef). He said he’d heard a lot of people telling him, calling his office anonymously, that money changed hands, that “the deal was dirty.” It just didn’t smell right, he said a few times.
“So it’s corruption and skullduggery but you don’t know how it is corruption and skullduggery?” Shiller said.
“”It smells that way. It looks that way,” Ford said. And then, later, asked about his apparent allegation on the radio that bribes were paid. “I believe there was, in my personal opinion. It’s not a fact.” On the same subject at another point, he said, “I can’t prove it.”
Ford’s belief, then, is based on hearing some rumours, watching some councillors lobby on behalf of a constituent, and generally relying on a “smell test.” Some of us might be inclined to call it more of suspicion, a gut feeling that something’s off. But in Ford’s world, that constitutes a belief, and that’s enough to make categorical statements in the press about corruption.
It’s worth pointing out that there were lots of reasons–and still may be lots of reasons–to be suspicious of the Tuggs deal. The press reported that just over $8,000 in campaign donations had been made by Foulidis’ friends, family, and employees to Sandra Bussin’s campaign around the same time the sole-source deal was initially approved–an amount equal to more than 17 per cent of Bussin’s total fundraising that year. Staff advised against granting the sole-sourced deal and said the contract should be put out for competitive bids. Bussin spoke at council in favour of giving Mr. Foulidis the sole-source deal. None of this looks very good. None of it was contradicted by anything Foulidis testified about at this trial. As Ford indicated, the scent of it is foul.
And in the political realm where Ford is something of a master–or a savant, at least–the scent of it is all that matters. There is this appearance and there are some rumours. It looks bad, therefore you can proceed to act on the assumption–on the certainty!–that it is bad.
But in the legal realm, they have different ways of coming to know things. When something smells bad, you investigate, and look for facts and evidence. You are careful to point out that which you cannot or do not know. You do not assume guilt until it has been proven (either beyond a reasonable doubt or on a balance of probabilities, depending).
As it happens, according to my understanding of libel law (though admittedly I am no lawyer), what Ford meant when he said “corruption” is far less important than what a reasonable member of the community would interpret it to mean–for it is among reasonable members of the community that Foulidis’ reputation is said to be damaged. And what Ford felt in his gut about the deal–what he believed–is far less important than what he could either prove, or at least show based on a good-faith attempt to investigate and outline the facts, a reasonable person would reasonably believe. I’m not predicting the verdict here–the legal arguments have yet to be made, and I am not an expert in the case law that will be cited. I am just pointing out that the way Rob Ford “knows” things, and comes to know them, and the way he decides what evidence he should act on, is entirely foreign to the process in which he is now involved. He knows things because he feels them in his gut, and feels no further evidence is required before taking action. Shiller spent hours trying to pin down the precise meaning of his words, but when Rob Ford speaks, he almost never has a precise meaning. He has a very general meaning, drawn from a very general impression of the situation.
All this may sound very familiar, because it mirrors in many ways the distinction between gut feeling and evidence-based analysis that has become apparent since Ford was elected mayor. In politics, Ford’s way of knowing things and talking about them has been very effective, but when those politics attempt to become policy, there is a problem.
So, for example, in 2006, Ford told me that there could be no environmental or health issues with pesticides since “our parents used them for years without any problems.” On the campaign trail, he talked a lot of folk wisdom about wasteful spending, but never having been specific about what constitutes waste, we’ve seen it applied to greater and lesser effect in practice to the existence of library branches, crime fighting grants programs, and office expense budgets. A few examples–a $12,000 party, a salaried plant-watering person, an expensed bunny suit–create for Ford and for many voters the whiff of stunning degrees of self-dealing and waste, but cracking down on those forms of spending turns out to not merit even a footnote in the city’s budget. Perhaps most famously, bureaucrats and opponents wrangle arguments about the cost, capacity, and ridership projections for various forms of transit, and argue about the land-use implications of various types of transit technology–Ford simply says that people prefer subways, and that people also prefer not to have their taxes pay for subways. He’s not necessarily wrong that those preferences exist, there is just no way to reconcile those popular priorities with the necessity of formulating a transit policy that can be built and operated in the real, physical world.
Ford is not alone in this: much of our politics across North America–and for all I know, the world–is an exercise in playing to the gut feelings of voters. We talk about things like birth certificates and Big Bird that confirm our prejudices as if they were remotely relevant to actual issues. The free trade and fuel pricing arguments of populists from all over the political spectrum are tied not to how the world works but to how people feel it works–or should work–in their guts. Somehow the folk wisdom that a deficit will create a recession and that austerity will be a fast-track to prosperity remains an active (sometimes dominant) argument in politics even though those ideas are the very opposite of the observable, provable truth. The idea that somehow companies can be taxed without passing the costs on to consumers and employees persists as the basis for much left-wing rhetoric–why? It feels right. Our gut says it should be right. And for many, even for most in politics, that is enough information to proceed.
But what sells as a message doesn’t necessarily sell as a practice. When it comes to turning those gut feelings into policies, many politicians–the sort-of responsible ones–have gone through a process of reconciling the common-sense truths of their rhetoric with the requirements of real-world facts. Because when they get into the process of examining the potential effects on the voters of giving them what their guts tell them they should want, they see that the choice is between flip-flopping and disaster. Interestingly, this familiar saying-one-thing-then-doing-another cycle makes us all more cynical about politicians.
Rob Ford has been uniquely consistent in not altering his perception of the situation to suit the evidence. The policies he pursues are the same ones his gut told him to pursue. He has not adjusted, in power, to a new way of knowing things. And that has created a bit of trouble down at City Hall for him, and for Toronto, too. Similarly, even when faced with a libel notice, he fails to see a reason to apologize for or clarify his apparent assertion that a businessman is involved in corruption with the government, even though he admits he has no proof and what evidence he has is mostly anonymous rumours.
During a break in the trial, a woman sitting beside me in the jury box–where we took overflow seating because the public gallery was full–said to me that as a long-time Beach resident and as an avowed hater of Rob Ford, she thought he spoke here on behalf of many regular residents when he said what he said about the Tuggs deal. “Finally, someone had the guts to say what everyone was thinking,” she said. This has been a common thing to say about Ford in many different contexts–finally, someone channeling our anger with overpaid bureaucrats, wasteful spending, selfish politicians. The question is whether others have failed to put forward those clearly popular propositions because they lacked guts, or because when they looked closer, they saw the situation was more complex than it first appeared and real honesty required a different position.
We have been seeing for a couple years the effect of Ford’s folk wisdom colliding with the realm of policy, and eventually we’ll see what voters think of that. Sooner yet, we’ll see what a judge makes of how his shoot-from-the-lip style works when it encounters the fact-based, precisely defined world of the law.
PHOTO: CARLOS OSORIO/TORONTO STAR