The watchdog: Janet Leiper is a prominent Toronto criminal and administrative lawyer who was appointed as integrity commissioner in 2009 for a five-year term. She’s taught at Osgoode Hall and is a former chair of Legal Aid Ontario.
The instigator: Paul Magder filed the complaint because he was concerned about Mr. Ford’s apparent disdain for council’s rules. He also has a long-standing family friendship with left-leaning activist Adam Chaleff-Freudenthaler, a one-time school trustee candidate who launched a challenge of Mr. Ford’s campaign finances and has been involved with this case. Asked to react to Justice Hackland’s decision last fall, Mr. Magder told reporters, “It’s a sad day, really, but it’s got to be done.”
The star lawyer: With a long track record in criminal cases and political advocacy, Clayton Ruby is virtually a household name in Canada. During cross-examination, he repeatedly forced Mr. Ford to admit he paid almost no attention to the laws and codes governing elected officials. “He should have played by the rules,” Mr. Ruby said after the ruling was handed down. “Rob Ford did this to Rob Ford.”
The sharp-eyed defence counsel: Alan Lenczner is widely regarded in legal circles as one of Canada’s savviest commercial litigators. Over a decade ago, former mayor Mel Lastman retained him to negotiate a deal with the computer firm involved in a notorious procurement scandal that led to the creation of the city’s code of conduct and lobbyist registry.
The judge: Based in Ottawa, Justice Charles Hackland was selected to hear the original case specifically because he’s an outsider. Seen as a bold, thoughtful jurist, he has presided over high-profile political cases, among them, a lawsuit brought by former Tory cabinet minister Helena Guergis against Stephen Harper, which the judge saw fit to toss out.
The legal arguments
While Mr. Lenczner has challenged four aspects of Justice Hackland’s ruling, the linchpin of the case before the Divisional Court is that the lower court failed to acknowledge that city council, back in August, 2010, did not have the legal authority to order Mr. Ford to reimburse the $3,150 to the original donors.
In a 34-page factum submitted before Christmas, Mr. Lenczner argued that everything that followed from that original ultra vires decision is, therefore, moot, including the results of the council session last February during which Mr. Ford cast the vote that started the whole process.
Mr. Lenczner also asserted that Justice Hackland didn’t apply the “error in judgment” defence correctly, and that he misinterpreted the City of Toronto Act. The 2006 law says council “may” impose “either” a reprimand or fine of up to 90 days’ salary on councillors who violate the code of conduct. Mr. Lenczner’s brief said that language precludes other penalties, such as Ms. Leiper’s order for Mr. Ford to repay the $3,150.
He stated that Justice Hackland should never have imposed the harsher penalties in the Municipal Conflict of Interest Act – among them removal from public office – given that the relatively small donations to Mr. Ford’s football charity had no bearing on the city’s operations.
But Mr. Ruby flatly rejected those arguments in his 49-page brief, which stressed the mayor’s admitted habit of ignoring the rules and procedures governing councillor conduct. Taking direct aim at Mr. Lenczner’s contention that legal experts have criticized the blunt instrument of Ontario’s conflict rules, Mr. Ruby stressed that the mayor’s defence “is based on the law as he wishes it to be, not as it is.”
While it took Justice Hackland over two months to hand down his verdict, the Divisional Court is expected to rule more quickly.
If Mr. Ford loses the appeal, provincial rules say that council has 90 days to decide whether to call a by-election or appoint an interim mayor. During this transition period, deputy mayor Doug Holyday will be responsible for day-to-day decisions.
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