Documents hint at Mayor Rob Ford’s defence in conflict of interest case

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When Rob Ford testifies next week in a legal hearing that could see him kicked out of office, Toronto's mayor is expected to argue that he made an honest mistake over a trifling amount of money.

Hints of Mr. Ford's strategy can be gleaned from a 148-page transcript of a cross-examination that Mr. Ford underwent behind closed doors, and which is now part of the court record.

A judge decided Friday that Mr. Ford will have to appear in person to answer allegations he broke the Municipal Conflict-of-Interest Act when he voted to let himself off the hook for failing to repay $3,150 that lobbyists and their clients had donated to his personal football foundation.

The looming court case is the latest in a string of incidents that raise questions about Mr. Ford's judgment and distract from his day-to-day work as mayor, such as the recent furor over his reading while driving on the Gardiner Expressway.

But this time, there is more at stake than unflattering headlines: If Mr. Ford is found to have broken the Act, he would automatically lose his job.

The judge could then decide to ban him from running again for up to seven years.

The severity of the penalty could mean that Mr. Justice Charles Hackland, the Ottawa judge overseeing the case, might be sympathetic to defence arguments that would keep Mr. Ford from losing his job – especially considering the incident arose out of the mayor's passion for a charity that provides football equipment to underprivileged high schools.

Alan Lenczner, the prominent lawyer defending the mayor, will start by arguing that council did not have the power to order Mr. Ford to pay back the money in the first place. "Our alternative defences are if there is any contravention, and we say there is not, then it was by inadvertence or error in judgment … " Mr. Lenczner says, adding that the money was "not a significant sum of money for any one of those donors."

Clayton Ruby, the high-profile lawyer who will grill the mayor, will be arguing that Mr. Ford, a 12-year veteran of city council, knew he should have recused himself from the debate and vote. The rules are right there in the council handbook, Mr. Ruby suggests at the start of the June 28 cross-examination. Mr. Ford says repeatedly he cannot recall ever receiving or reading a handbook.

"Do you have any memory of the handbook?" Mr. Ruby asks.

"I just answered that question," Mr. Ford replies.

"You said, 'I have a memory in my mind.' What is it you have in your mind?"

"I can remember what I ate for breakfast this morning."

At the heart of the case is a speech and vote that Mr. Ford made on Feb. 7.

A year-and-a-half earlier, when Mr. Ford was still a gadfly councillor from Etobicoke's Ward 2, council ordered him to repay out of his own pocket $3,150 in donations that the Rob Ford Football Foundation had received from 11 lobbyists or their clients and one corporation that does business with the city.

(The lobbyists weren't named at the time, but Mr. Ford revealed during the cross-examination that one was an unnamed taxi company and another was the Woodbine Entertainment Group, which is now lobbying for a full-scale casino at its racetrack slots location.)

Council handed out the punishment at the urging of the city's Integrity Commissioner, who concluded that Mr. Ford broke the councillors' Code of Conduct when he used the city's logo, his councillor letterhead and the time of a city-paid staffer to solicit donations for his foundation.

Despite six reminders from the commissioner, Mr. Ford declined to pay back the money. The issue landed back at council Feb. 7, when Mr. Ford, now mayor, delivered a speech arguing he should not have to repay money that did not benefit him personally. He voted with the council majority to scrap his own punishment.

That decision led to Toronto resident Paul Magder filing a lawsuit against Mr. Ford. Mr. Magder volunteered on the unsuccessful run for school trustee of Adam Chaleff-Freudenthaler, an activist who led the push to have the mayor's campaign expenses audited.

Mr. Ford says again and again during the cross-examination that he relied on the city solicitor to tell him when he was supposed to declare a conflict and recuse himself from a debate and a vote. Nobody warned him to step aside on Feb.7, he says.

"It's up to legal staff to give that answer why, many different reasons," Mr. Ford says.

"So am I being fair to you in saying that is true, but in the end what happens is you don't think about it? It goes to your staff. You do what they tell you?" Mr. Ruby asks.

"Yes," Mr. Ford replies.

Howard Moscoe, a colourful long-time councillor who retired in 2010, submitted an affidavit refuting that. According to a draft he provided to The Globe and Mail, "The role of the City of Toronto City Solicitor is to advise the City of Toronto as an institution – not its councillors as individuals … By chance, the clerk or solicitor might point out obvious conflicts of interest if they identify them. However, it would be reckless to rely on them doing so."

Mr. Lenczner declined an interview request for this story. The mayor's office declined to comment Sunday, but said Friday that Mr. Ford is "looking forward to his day in court."

Ford on why he decided to speak and vote Feb. 7:

Clayton Ruby: What was it about this speech or this vote that in your mind made it inadvertent?

Rob Ford: I spoke because I had to explain to the councillors how my foundation works. I thought I was quite clear on what I said, and how I have helped out hundreds, if not thousands, 1,000, 2,000 kids over all in the last few years.

Ruby: So your speaking and voting were deliberate acts, correct?

Ford: I'm voting because I know my foundation ... it's a fantastic foundation.

Ruby: You deliberately chose to make the speech you did and vote the way you did?

Ford: Absolutely.

Ruby: And you don't regret for a moment having done that?

Ford: Absolutely not.

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Excerpts from the June 28 cross-examination of Toronto Mayor Rob Ford, which took place at a downtown Toronto law office. Lawyer Clayton Ruby acted for the plaintiff, Toronto resident Paul Magder, who alleges the mayor broke the Municipal Conflict-of-Interest Act when he spoke to and voted on an item related to his personal football foundation. Lawyer Alan Lenczner acted for Mr. Ford.

In the first excerpt, Mr. Ruby asks Mr. Ford to explain his understanding of his responsibilities under the Municipal Conflict of Interest Act.

Clayton Ruby: Going back to section 5(1), take a look at that, of the [Municipal Conflict-of-Interest] Act? You will agree with me that it's the member who has an obligation under this Act, not anybody else? Is that your understanding?

Rob Ford: For what? I don't understand.

Ruby: Take a look at it, and see. The Act puts an obligation on the member to ...

Ford: "...the member either on his or her own behalf or while acting for ..."

Ruby: Yes.

Ford: "... prior to any pecuniary interest ... so what is your question?

Ruby: My question is you agree with me that the obligation is placed here on the member. You understood that?

Ford: It's up to you to inform or ask question of the city clerk or legal ...

Ruby: And no obligation is put on anybody else but the member by this legislation, correct?

Ford: Sometimes you're in a conflict, sometimes you're not. You may think you are, and sometimes you're not. So it's more about ... to get legal advice.

Ruby: And the obligation, whatever it may be, is placed on the member of council, not anybody else, correct?

Ford: It's up to you to ask the questions or find out.

Ruby: Thank you. So far as you're aware, did you receive legal advice? Did you see it from an outside lawyer or anybody else?

Ford: No.

Ruby: No, you're shaking your head no?

Ford: And I said no.

Ruby: You're sometimes very soft spoken and I want to make sure she gets it. Did you seek advice from anyone who is not a lawyer?

Ford: With respect to what?

Ruby: Whether you should vote, take part in these two debates?

Ford: I don't recall. I don't believe I did.

Ruby: Okay. Are you aware that you had a right to seek free legal advice regarding both complaints under the Code of Conduct complaint protocol for members of council?

Ford: Free advice within the city or outside advice?

Ruby: That you could under the heading "Key council policies," in the city council handbook as said there: "Council has the authority under the complaint protocol to reimburse the parties to the complaint for actual and reasonable legal and related expenses up to $5,000 ..."

Ford: I wasn't aware of that.

Ruby: Okay. Obviously you have never invoked it?

Ford: No, I wasn't aware that you could hire outside lawyers using taxpayers' money.

Ruby: Were you aware that the Code of Conduct complaint protocol for members for council also allows you to charge one hour of legal advice to your office budget when you're the subject of an integrity commissioner investigation?

Ford: No, I wasn't aware of that.

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In this excerpt, Mr. Ford explains how he prepares for his council-floor speeches, including the Feb. 7 speech at the centre of the conflict-of-interest allegations.

Ruby: Did you explain in your speech to council what your position was on the paying back of this money and providing the proof of having done so?

Ford: I don't recall my speech exactly, but what I remember, I don't think I talked about any of the money in my speech, I don' think. I can't remember exactly. It was about a five-minute speech, I believe, so I can't remember exactly what I said, but I did explain what my foundation did. It helps out kids.

Ruby: Did you prepare the speech in advance?

Ford: No.

Ruby: Did you have notes prepared?

Ford: I don't believe I did, no. No, I don't prepare speeches. I might make a note, like a word or something, but I don't recall exactly. If I had a prepared speech, no, I don't have a prepared speech. I wasn't reading off anything.

Ruby: The notes that you used, if any, where are they now?

Ford: Like I said, I don't make ... I can't remember if I did or I didn't. When I speak on the floor at council, I might make a word or just on the back of a ... if I do. Sometimes I don't ... I can't remember if I did or not. You're saying did I. I don't recall.

Ruby: Got it. If you did make notes, are they still kept?

Ford: No.

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In this excerpt, Mr. Ford explains why he disagreed with the integrity commissioner's original report recommending he repay out of his own pocket $3,150 in donations to his football charity. The donations were made by 11 lobbyists or their clients, and one corporation that does business with the city.

Ruby: Did you accept, you personally, that the integrity commissioner's report was correct?

Ford: No, I disagreed with it.

Ruby: In which respects?

Ford: In many respects.

Ruby: Tell me.

Ford: I don't recall all of them.

Ruby: Let's see the report ... [another lawyer points out where the report is in the record] ... Refresh your memory by all means, and tell me what you felt when you read it, with respect to it being correct.

Lenczner: Obviously my objections carry no weight with you, Mr. Ruby. You just do it in a different way. Go ahead.

Ruby: Apparently it's successful. I got a "Go Ahead."

Lenczner: Well, just I'm charmed by your ingenuity.

Ford: Number 1, I think the thing that bothers me is that I had to pay it back personally. It's not personal money. I don't benefit from this. I don't make a dime on this. I actually lose money doing this. It costs me a lot to stuff the envelopes, pay for the stamps, print the letterhead. The money goes directly to Toronto Community Foundation [the organization that administers Mr. Ford's foundation.]

So when she [the integrity commissioner] said I have to pay it out of my own pocket, I don't see why I have to pay it out of my own pocket. The money was spent on football equipment already. I guess that's what I was disagreeing with, and I sent letters to the people [lobbyists, their clients and one corporation that does business with the city] if they want their money back, I'll give it back, and they sent me back letters saying, "No, we don't want it back," until I think it was the lobbyist register said, "You're not allowed to do business with the city any more." Then they ... not all of them, but some of them, sent it back and said, "Okay, we have to ask you to pay us the money back because we have to continue to do business with the City." That's the big picture.

Every single word here, I couldn't say if I agree or disagreed, but generally speaking, that's what I disagree with. Why should I have to pay it back out of my own pocket when I don't benefit from it whatsoever?

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In this excerpt, Mr. Ruby argues that Mr. Ford benefits politically from his football foundation.

Ruby: Well, you operate a Twitter account.

Ford: Do I operate a Twitter account?

Ruby: Yes, and I suggest to you that your receptionist Tom Beyer, is in charge of it.

Lenczner: Your who? I didn't catch that word?

Ruby: Twitter.

Lenczner: No, no, but your ...

Chaisson [another lawyer]: Receptionist.

Lenczner: Oh, receptionist.

Ruby: Tom Beyer.

Ford: I don't personally operate the account.

Ruby: No, Tom Beyer does, I think, right?

Ford: He could possibly, absolutely.

Ruby: Yes, and that tweet I'm showing to you is about a donation made by the football foundation to Mother Theresa High School.

Ford: Again, this is the first time I've seen it, but yes. If that's what it is, that is what it is.

Ruby: Mr. Beyer is a City of Toronto employee.

Ford: Yes he is.

Ruby: And I'm going to show you a picture taken at Blessed Mother Teresa Catholic High School on April 3, 2012 that was featured in the daily newspaper, 24 Hours. Do you recognize that occasion?

Ford: Yes, I was there, yes. That's me. That's the kids I help out.

Ruby: And on the cheque that is in the right-hand corner of the photograph you signed you name "Mayor Rob Ford?"

Ford: Yes, that's correct.

Ruby: That date on the cheque is April 3, 2012.

Lenczner: That isn't actually a cheque. That's a billboard. That's not the cheque, if that's what you're trying to get at.

Ruby: I think my point is that this a publicity photo that you use in your political work, right?

Ford: It's helping out kids.

Ruby: And it's publicity for you politically, yes?

Ford: I don't believe that. I think it helps out kids.

Ruby: It's in the newspaper. You posed for it.

Ford: That's up to the papers. If they want to come, then I tell the people that I'm coming. If the school wants to put it in the paper, that's their problem.

Ruby: That's their problem, and did you co-operate in producing this billboard?

Lenczner: Okay, that's enough. I mean, really, Mr. Ruby, you're so far away from anything that's relevant here, I have let it go on, but that's enough.

Ruby: I think it shows a political motivation to use the Ford Foundation, but you obviously don't want him to answer any questions about that.