The first rule of #fordcourt is show up early for #fordcourt. The most stressful element of covering a Rob Ford hearing is the uncertainty of finding a seat. When municipal politics becomes a mainstream cultural fascination and civic engagement is partly driven by the fear of missing out, the demand for an opportunity to bear witness sometimes exceeds the supply.
And so on Monday, January 7, every seat in Osgoode Hall’s courtroom 3 was occupied well before the 10 am start time for the Divisional Court’s hearing of Ford’s appeal of his removal from office for violating the Municipal Conflict Of Interest Act. Those unable to obtain proper seats lined the courtroom walls.
The room itself is a vast off-white box with Victorian detailing sitting inside it was like being within a giant, inverted version of one of those perfectly rectangular, impossibly ornate cakes that a bakery might have for display purposes only.
The proceedings were no less staid than the setting, consisting mostly of the respective lawyers presenting oral versions of the arguments they’d earlier submitted in writing.
Over the course of seven hours, this became dull. Observers of city council are accustomed to a roaring show, and the day’s events served as a reminder that we’re spoiled.
Every time a member of the three-judge panel opened his or her mouth, the public and media in the room perked up. Any particular news value to emerge from this hearing would be a product of their queries. The lawyers’ prepared statements were necessarily predictable the judges’ comments, questions and challenges were not.
“There is no room for ambiguity there, none,” Ford’s lawyer, Alan Lenczner, would say, for instance, in reference to a specific passage of the Municipal Conflict of Interest Act. Then Justice Edward Then would point out some room for ambiguity after all.
While it’s seldom wise to infer a judge’s ultimate conclusions from the questions he or she asks at trial, such inquiries nevertheless serve to illuminate their present understanding of the degree to which a lawyer’s argument does or does not mesh with the accepted jurisprudence. So it was somewhat startling to see how much time the panel had for some of Lenczner’s more questionable logic.
He contended, for example, that the City Of Toronto Act (the legislation that grants the city the bulk of its legal authority) should be interpreted narrowly with regard to the sanctions council may hand out for violations of its Code of Conduct.
The law says council “may impose either of the following penalties” on one of its members: a reprimand or a suspension of up to 90 days’ pay. Council’s Code of Conduct, however, explains that council is not exclusively limited to these things but may take “other actions” that are remedial and not necessarily punitive in nature (such as ordering “repayment or reimbursement of moneys received”).
Lenczner’s case hinges in part on his assertion that council exceeded its authority when it ordered Ford to return donations he’d solicited from lobbyists for his football foundation therefore, Lenczner reasons, Ford’s later vote to reverse this decision and save himself the money was moot.
Despite the fact that the City Of Toronto Act states upfront that it is to be “interpreted broadly,” Justice Then seemed quite skeptical about whether it permits any penalty besides a reprimand or suspension of pay, such as repayment.
“You’re trying to elevate ‘other actions’ into penalties,” of which the Act explicitly specifies only the two, he protested to lawyer Nader Hasan, who (along with Clayton Ruby) was representing the citizen who filed suit against Ford.
Certainly, you want judges to be ruthless in evaluating the claims of both sides, especially in a case in which a city’s mayoralty hangs in the balance. But the fact that they granted such weight to arguments previously considered long shots seems to indicate that Ford’s uphill battle may not be quite as steep as we’d previously assumed.
At day’s close, Justice Then promised the judicial trio would do their best to render a “prompt decision” and that it would be posted online immediately following its release to the parties involved. It’s an unusual step, he said, but he recognized that “there is some interest on the part of, uh, everyone.”
We were almost nodding off by then, but that woke us up.
news@nowtoronto.com | twitter.com/goldsbie
