What is an error in judgment? Most of us could offer a rough definition if asked. An honest mistake, perhaps. An unintentional slip-up. In a court of law, things are not as simple.
The error-of-judgment defence was at the centre of things when two of Canada’s top lawyers traded arguments in Osgoode Hall’s ornate Courtroom 3 on Monday. The Municipal Conflict of Interest Act says that a politician caught in a conflict can be excused for it if he or she made a sincere error of judgment. The trial judge in the Ford case, Mr. Justice Charles Hackland, found that Mayor Rob Ford did not qualify for the defence – and the judge expressed himself in pretty strong terms.
“In view of [his] 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, [his] actions were characterized by ignorance of the law and a lack of diligence in securing professional advice, amounting to willful blindness. As such, I find his actions are incompatible with an error in judgment.”
Naturally, Mr. Ford’s lawyer, Alan Lenczner, had a different view. He argued that Mr. Ford is an honest man who made an honest mistake. When the mayor stood to defend himself at a city council meeting over improper fundraising for his football foundation, he simply did not realize he could be running afoul of conflict-of-interest laws. After showing a video of Mr. Ford’s speech that day, Mr. Lenczner asked: “Is that the demeanour of someone who is trying to hide something or is it the demeanour of an honest man?”
Mr. Lenczner argued that Mr. Ford had excused himself from council deliberations many times when he thought he had a conflict. On one occasion, he stood aside when council was deliberating about a golf course where his mother was a member. On another, he stood aside when council was discussing city printing operations. His family owns a printing company.
So, according to Mr. Lenczner’s written submission, Mr. Ford “understood that he could not vote where both he, or his family member, and the city had a financial interest in a council agenda item. However, he also reasonably believed that he was permitted to participate when his own conduct … was at issue.”
The opposing lawyer, Clayton Ruby, called that all wrong. He argues that ignorance of the law is no excuse – a very old principle of jurisprudence. He says that Mr. Ford showed a “reckless” and “arrogant” attitude throughout. He stiff-armed the Integrity Commissioner again and again when she tried to get him to comply with her rulings on improper fundraising. He did not bother to read the conflict of interest act, did not read a conduct handbook for councillors and did not attend a briefing for councillors. His office had no procedure for identifying conflicts of interest. Those failures, Mr. Ruby says, block Mr. Ford from claiming he made an honest error.
One of the appeal-court judges, Mr. Justice Edward Then, asked, skeptically, whether Mr. Ford really knew he was offside when he stood in his own defence on that fateful day at council. Mr. Ruby’s argument, in essence, is that he damned well should have.
In his original ruling, Judge Hackland agreed. He said that to get off on error-of-judgment grounds, Mr. Ford would need to have made the error “honestly and in good faith.” In other words, “there must be some diligence on [his] part; that is, some effort to understand and appreciate his obligations. Outright ignorance of the law will not suffice, nor will willful blindness as to one’s obligations.”
The three appeal-court judges may take a different view, of course, when they render judgment. But to overturn Mr. Justice Hackland’s ruling, they must not simply disagree with it; they must find, as Mr. Ruby puts it, “a palpable and overriding error.” That is a high hurdle indeed. If they can’t clear it, Mr. Ford is out of a job.