This week’s Rob Ford courtroom show was a profoundly depressing experience—both for what it says about our proudly ignorant mayor and the city that elected him.
And now it is left to the judge to determine whether he will remain the mayor of Toronto. I suspect, beyond my own non-expert evaluation of the law and the evidence, that Justice Hackland will try to find a way to avoid removing Ford from office. The ends of justice may not align with the ends that the law points to in this case—for a mayor to be removed, an election result overturned, over a matter stemming from $3,150 in money raised for a worthy enough charity.
Ford has a good lawyer, as respected a litigator (or perhaps more so; I am no expert on reputations here), if not quite as famous, as Ruby: Alan Lenczner, dean of the commercial litigation bar, 2007 OBA Award for Excellence in Civil Litigation winner, the Canadian counsel for the largest lawsuit in the world. In 2007, he expressed concerns—unrelated, but maybe contiguous—that conflict-of-interest provisions in the legal profession were being applied too broadly.
(From Canadian Lawyer: ”I think the Supreme Court has done us a disservice on the conflicts side, particularly [R. v. Neil], where, for example, you finish with a client, they’ve left your office, and even a few years later you can’t act against that client. I think we’ve been penalized too much and it’s creating unnecessary roadblocks. There must be a better way.” Lenczner says he can’t fathom that large corporate firms have staff whose full-time job is checking for conflicts. ”I mean, that isn’t right. We’re practising law, we shouldn’t have a conflicts guardian.”)
In his own submission, perhaps unsurprisingly, he did not rely much on Ford’s testimony. But he did, surprising some of us—and conveniently for the mayor’s claims—say he agreed with Ford’s eccentric interpretation of the Conflict of Interest Act. Sort of. In this case, he proposed that the relatively new council Code of Conduct was an entirely separate code, and that it governed personal behaviour while the Municipal Conflict of Interest Act governed instances where the city had a direct financial interest. The judge perked up at this, realizing the distinction between these two statutes and how they interact with each other had never been tested in court, so any decision he made would be precedent-setting, and have wide-reaching implications for municipalities across the province who have adopted Codes of Conduct.
Lenczner had a much more sophisticated set of arguments than just that, claiming further that the penalties outlined in the Code of Conduct are illegal, that the city council process of dealing with Integrity Commissioner reports violates the principle of allowing the accused to defend himself. And more.
Some of them were very interesting, and raised issues where the law may need rewriting or clarifying. Perhaps—though I am not sure how—something in there will allow the judge to find that the mayor is not subject to removal from office on the narrow question of this conflict-of-interest case. That would mean that his opponents would have the chance to make the case for his removal to the electorate, via the legal mechanism of the ballot box, which is the best place for most political questions to be decided.
But that eventuality will leave us to face the exposed, ugly question that emerged at the heart of the whole hearing.
Whatever finding of guilt or innocence emerges in the hearing, the mayor seemed to make it clear in his appearance that he is incompetent to hold the job he holds (as Matt Gurney, a conservative by disposition, wrote in the National Post). No judgement will erase that self-incriminating testimony. And if, as so many armchair political scientists point out, that will do nothing to make him less palatable to the electorate—that this whole case will have in fact made him more popular—then that is an indictment of the very competence of Toronto democracy. Contemplating that possibility is even more uncomfortable than sitting through the cross-examination was.
Because as Ruby pointed out, errors in judgement cannot be excused on the basis of willful indifference to the truth. And as true as that is of the subject to a conflict-of-interest hearing, I think it is likely equally true of the electorate in a democracy. It may be possible—we have no cross-examination of the voters to refer to for guidance—that the voters made a good-faith error in judgement in electing someone so proudly indifferent to job competency in the first place. To re-elect him after he has made the truth so abundantly clear would be to proceed from reckless ignorance.
