Guilty and Out: The Final Humiliation of Rob Ford

[57] On my review of the record in this proceeding, the respondent has never acknowledged a key point addressed in the Integrity Commissioner’s report; that is, that it was not appropriate for the respondent to use his status as Councillor (or Mayor) for private fundraising, notwithstanding that the purpose was to benefit a good cause. The rationale for this is explained by the Integrity Commissioner in the following excerpt, on p. 14, from her excellent report, dated January 30, 2012, which I respectfully endorse:
In fairness to Councillor Ford, it is common for a person who has blurred their roles to have difficulty “seeing” the problem at the beginning. It often takes others to point out the problem, especially in a case where the goal (fundraising for football programs for youth) is laudable. The validity of the charitable cause is not the point. The more attractive the cause or charity, the greater the danger that other important questions will be overlooked, including who is being asked to donate, how are they being asked, who is doing the asking, and is it reasonable to conclude that a person being asked for money will take into account the position of the person asking for the donation. Where there is an element of personal advantage (in this case, the publication of the Councillor’s good works, even beyond what they had actually achieved), it is important not to let the fact that it is “all for a good cause” justify using improper methods for financing that cause. People who are in positions of power and influence must make sure their private fundraising does not rely on the metaphorical “muscle” of perceived or actual influence in obtaining donations

[58] In assessing errors in judgment, just as it may be relevant to consider the position of a novice elected councillor with limited experience with conflict of interest issues, it is also appropriate to consider the responsibilities of the respondent as a long-serving councillor and Mayor. In my opinion, a high standard must be expected from an elected official in a position of leadership and responsibility. Toronto’s current Code of Conduct is modelled on the recommendations of The Honourable Denise Bellamy, who conducted the Toronto Computer Leasing Inquiry, in 2005, when the respondent was a member of City Council. At pp. 65-66 of her report, Commissioner Bellamy had this important observation as to the role of the Mayor:

71. For the Mayor, integrity in government should be a top priority.

The Mayor of Toronto has many responsibilities, pressures, and functions, but perhaps the greatest is providing leadership for integrity in government. The Mayor is the face of City government, both internally and externally. Maintaining the integrity of government is the Mayor’s most important job.

In view of the respondent’s leadership role in ensuring integrity in municipal government, it is difficult to accept an error in judgment defence based essentially on a stubborn sense of entitlement (concerning his football foundation) and a dismissive and confrontational attitude to the Integrity Commissioner and the Code of Conduct. In my opinion, the respondent’s actions were characterized by ignorance of the law and a lack of diligence in securing professional advice, amounting to wilful blindness. As such, I find his actions are incompatible with an error in judgment.

[59] In summary, I find that the respondent has failed in his burden to show that his contraventions of the MCIA were the result of a good faith error in judgment.
Disposition

[60] For the reasons set out above, I have concluded that the respondent contravened s. 5 of the MCIA when he spoke and voted on a matter in which he had a pecuniary interest at the meeting of Toronto City Council on February 7, 2012, and that his actions were not done by reason of inadvertence or a good faith error in judgment. I am, therefore, required by s. 10(1)(a) of the MCIA to declare the respondent’s seat vacant. 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.

[61] Accordingly, I declare the seat of the respondent, Robert Ford, on Toronto City Council, vacant.

[62] Recognizing that this decision will necessitate administrative changes in the City of Toronto, the operation of this declaration shall be suspended for a period of 14 days from the release of these reasons.

[63] The applicant is to provide the court with his written costs submissions within four weeks of the release of these reasons, with the respondent providing his written submissions within four weeks of receipt of the applicant’s submissions. The applicant will then have a further two weeks to reply.

“Hackland R.S.J.”
 

From the ruling in Madger v. Ford

Um, wow. I certainly didn't see that coming.

A couple of points. I may have more later as I think about this morning's developments more fully. I will update this post if and when I have more to add.

First, there was never any real question that Mayor Ford was guilty on both the facts and the law. His defence, such as it was, was silly almost beyond words. Hizzoner and his counsel actually seemed to invent a brand new definition of conflict of interest that I'm not aware of ever having been invoked before. It was as ridiculous as it was desperate and it was rightly slapped down from the Bench.

Second, this decision makes it clear beyond any doubt whatsoever that Ford brought this upon himself.  Indeed, Justice Hackland's choice off words like "a stubborn sense of entitlement," " a dismissive and confrontational attitude" and "the respondent’s actions were characterized by ignorance of the law and a lack of diligence in securing professional advice, amounting to wilful blindness." are all basically reflections of what I have said about Ford here.

Third, there remains a serious question as to the meaning of Justice Hackland's phrase "I decline to impose any further disqualification from holding office beyond the current term." Does "current term" mean the fall of 2014, or the moment Ford is removed, which could be as soon as two weeks from now?

Fourth, Mayor Ford has indicated that he'll appeal the ruling, but I don't see his chances of success as being all that great. Again, there's no arguing the facts and the law in this case, and Ford's conduct and attitude throughout made a bad situation even worse. I'm not a lawyer, but I haven't seen any reversible error on Harkland's part that an appeal could be successfully fought on.

Rob Ford, being Rob Ford, compounded that further after the ruling, telling the press “This comes down to left-wing politics. The left wing wants me out of here and they’ll do anything in their power." Judges really don't like that kind of talk, and I wouldn't be at all surprised if it hurts him before the appeals court.

Fifth, the appeals court should deny the Mayor's request for a stay past the fourteen days in Harkland's order. Running through the appeal courts could easily take two years and allow Ford to "run the clock" until the 2014 election. If this order is to have any teeth at all, Ford should be forced to appeal from outside City Hall. Remember, the Mayor no longer has the presumption of innocence through the process. He is, for all intents and purposes, convicted as of this morning.

Furthermore, the city shouldn't be paying anything for the mayor's appeal. I don't know if his costs were being covered during the trial phase or not, but if they were, it should immediate stop upon his being found in breach of the MCIA.

If Rob Ford was smart and wanted to garner public sympathy, he would immediately resign and announce his intention to run in 2014.

Sixth, if "respect for the taxpayer" is the mantra of the day, there should be no by-election to fill the vacancy. Rob Ford's sense of entitlement should not cost this city $7 million to replace him, whether he runs or not, and he has indicated that he will.

Granted, that depends on a clarification of Justice Harkland's language in what constitutes "the current term." It stands to reason that Ford is disqualified from running in a by-election. It should be remembered that the MCIA is provincial legislation, therefore the province's standards for "term" should be controlling.

When Dalton McGuinty's resignation takes effect at the end of January, his successor will not be starting a term of his or her own. He or she will be completing McGuinty's minority mandate of last year until such a time as the Legislature is dissolved and a new election called. It therefore follows that Ford's "current term" ends in the fall of 2014.

Deputy Mayor Doug Holyday is more than capable of filling the vacancy, and is widely liked and respected on Council. If he is named acting mayor, a by-election to fill his Council seat could be called. That is far preferable to an unnecessary city-wide election.

As a conservative and a Ford ally, naming Holyday acting mayor would not fundamentally change the composition of Council or "overturn an election." If he chooses to do so, Holyday would very probably be better at advancing Ford's agenda than Ford himself.

Having said that, if the left wing of Council decides to stage a coup and name one of their own to the mayor's chair, I would strongly reconsider my position on holding a city-wide by-election. That would fundamentally change Council and overturn the clear will of the people.

Finally, as much as I dislike the man, this has little to do with Rob Ford himself. Were recalls legal in Toronto, I would have voted to keep him in office, which says something, since I voted against Ford in 2010 and spoke out against him loudly and often. I also opposed the recall of Wisconsin governor Scott Walker this year and California governor Gray Davis in 2003. I despise the concept of recall elections more than I do any single politician.

But I don't oppose the judicial removal of an officeholder on the grounds of lawbreaking. I think unelected judges should exercise an abundance of caution before taking that step, but I don't oppose it on principle. It seems clear from the language of Justice Harkland's ruling that Ford's arrogance at trial was his ultimate undoing.

Furthermore, the Municipal Conflict of Interest Act and the City of Toronto Act, as well as the Council Code of Conduct all predate Ford's tenure as a politician. None of them were established to "get" him.

Throughout this mess - as throughout his entire career - Rob Ford refuses to accept any responsibility for his predicament, nor has he apologized for putting the city through this. He is singularly incapable of recognizing that his own conduct is at the heart of each and every controversy that he finds himself in. It's always a conspiracy and it's never his fault.