The original Toronto city council decision that Rob Ford should return donations to his private football fund from lobbyists, was invalid and as a result a Superior Court judge should not have ordered him removed from office as Mayor of Toronto, his lawyers are arguing.

Rob Ford’s appeal factum claims the judge in his conflict of interest case made many errors in law. (Photo: Mark Blinch/Reuters)

Justice Charles Hackland made at least three other errors in law in ruling that Ford breached the Municipal Conflict of Interest Act, say written arguments filed in Ontario Divisional Court on behalf of the mayor by Alan Lenczner and Andrew Parley of Lenczner Slaght LLP.

“It is respectfully submitted that Hackland RSJ, from the outset, adopted the wrong approach. Rather than applying the ordinary meaning to plain language and seeking to uphold the democratic decision of the voters who elected the Mayor, by construing the MCIA ‘strictly’ and by searching for a ‘reasonable interpretation which will avoid a penalty,’ Hackland RSJ did the opposite of what the law demands,” write Ford’s lawyers.

The spectre of a court removing an elected politician from office is highlighted by Ford’s lawyers more than once in their arguments.

“The appellant was elected Mayor, by an overwhelming majority in November 2010,” they write in their factum.

Ford actually received 47 per cent of all votes cast, a plurality, not a majority.

Hackland ordered the office of mayor vacated as a result of the breach of the MCIA in his Nov. 26 ruling, although he later clarified his decision to say that Ford could run in any by-election if he is unsuccessful on appeal. The Divisional Court granted a stay of the ruling pending its decision in the appeal which is scheduled to be heard Jan. 7.

The MCIA prohibits a member of municipal council from taking part in discussions or voting on any matter in which he or she has any pecuniary interest. The court action against Ford was initiated earlier this year after he spoke to and voted on a February 2012 Toronto city council motion that overturned its previous order in August 2010 that he repay $3,150.

That money was donated to Ford’s private football foundation by lobbyists and companies that did business with the city. The vote in August 2010 adopted the recommendations of Toronto integrity commissioner Janet Leiper that the money be repaid because it violated the official Code of Conduct for councillors.

Leiper noted that Ford had ignored two previous attempts to informally resolve complaints he stop using official letterhead and city staff to solicit money for the foundation. The sanction would “reflect the importance of a Councillor not using the influence of office for personal causes,” wrote Leiper in August 2010.

Ford never complied with council’s order to repay the money. But his lawyers are arguing this order was ultra vires the powers of council under The City of Toronto Act and as a result council’s August 2010 motion and everything that flowed from it, was a “nullity.”

Under the act, council “may” impose a reprimand or a suspension of up to 90 days if there is a finding of a breach of the Code of Conduct.

Hackland stressed the act states council “may” impose these penalties and the integrity commissioner was granted the power to recommend “other actions” including reimbursement of money.

“While the member may view the other actions as penalties, they are in fact necessary remedial measures to allow the Code of Conduct to operate effectively and to address the problems arising from Code of Conduct violations,” wrote Hackland.

The Code of Conduct is merely a “policy document” write Ford’s lawyers and it was not open to council to require a reimbursement as an “authorized penalty.” As well, since Ford did not receive the donations personally, he cannot be made to repay them, they argue.

The MCIA applies to “business or commercial matters of the City of Toronto” and “was not promulgated to regulate councillor or councillor integrity,” write Lenczner and Parley.

The conflict provisions do not apply if the pecuniary interest is too remote or insignificant in nature. Even though Ford testified he would object to being ordered to repay even $5 in this case, his lawyers state Hackland improperly applied a subjective test in determining this issue.

The MCIA includes defences such as an error in judgment by a councillor, which was rejected by Hackland. In the appeal to the Divisional Court, this defence is raised again on the basis that Ford “reasonably believed” he was permitted to participate in the council vote on his conduct that did not involve a financial interest for the City.

The factum of Toronto resident Paul Magder, who initiated the court action under the MCIA, is scheduled to be filed by Dec. 24.

One aspect of Ontario Auditor General Jim McCarter’s annual report, released yesterday, revealed the number of Crown attorneys has more than doubled since 1993, yet the number of criminal charges is relatively the same (572,000 in 1992 compared to 576,000 in 2011).

Mandatory minimum rules mean more cases are going to trial, says Scott Rogers. (Photo: Gail J. Cohen)

Scott Rogers, an assistant Crown attorney and president of the Ontario Crown Attorneys’ Association, says there is good reason for this. The criminal justice system is more complex these days, he says, primarily because of the Charter of Rights and Freedoms.

“Murder trials just don’t go through our system that fast anymore,” says Rogers. “You have preliminary hearings that take weeks and weeks and weeks, followed by trials in the Superior Court that take months and months and months.”

This is partly due to the introduction of mandatory minimum sentences, which has resulted in fewer accused pleading guilty.

“What mandatory minimums do is a person who is facing charges says, ‘Well I can’t go to jail so I’m going to take my chances at trial,’” says Rogers. “So more people opt to have a trial, which means you need to have more prosecutors, you need to properly finance the legal aid system, and you need more judges.”

One of the problems, according to the auditor general’s report, is that there is no system in place to assess Crown attorneys’ workload or how cases are being handled.

“[I]t is difficult to gauge the actual impact of this on prosecutor workload, especially because the [Criminal Law Division of the Ministry of the Attorney General] makes little use of numerical and statistical information to analyze the relative workload, efficiency and effectiveness of its Crown attorneys, and relies more on informal oversight by senior staff at each of the 54 Crown attorney offices,” wrote McCarter.

Rogers says the OCAA has been asking the government for an assessment system for years.

“There’s no reason why we can’t have a system where we can assess whether Crown attorney offices and courthouses are properly staffed,” he says. “We just have to be able to have that statistic, and that’s something that our association has been saying for a long, long time because our association is not afraid of those statistics. Those statistics, we believe, will bear out that many offices are grossly understaffed.”

In the report, McCarter made reference to Manitoba’s electronic case-management system, which Alberta recently bought the rights to and will be enhancing. He criticized the division for the delay in implementing such a system in Ontario.

“A much-needed electronic case management system originally projected to cost $7.9 million and to be completed by March 2010 has been significantly delayed because of weak management, oversight and financial reporting, and insufficient resources being dedicated to the project,” said the report.

The auditor general also mentioned the Supreme Court of Canada’s 1990 ruling in R. v. Askov, which established that a reasonable period of time for trial was generally eight to 10 months. This resulted in the dismissal of thousands of backlogged cases across the country due to unreasonable delay, according to the report.

The Ministry of the Attorney General introduced its Justice on Target project to try to reduce the number of court appearances and days to dispose of a charge. The report states that as of March 31, 2012, Justice on Target was able to reverse the long trend of increases, but still unable to meet its reduction targets.

Rogers says it’s essential to know why cases get stayed, and the only way to do that is through an assessment system.

“Cases get stayed for any number of reasons but when they get stayed for delay, then we have to know that,” he says. “If cases are getting stayed that means that the courthouse or that particular jurisdiction is understaffed.”

Canada's broadcast regulator does not have the authority to impose a value-for-signal plan under which television broadcasters would charge cable and satellite firms for their programming, the Supreme Court of Canada ruled this morning.

The Supreme Court's ruling is defeat for telecomm's like Bell. (Photo: Reuters)

The industry regulator, the Canadian Radio-television and Telecommunications Commission, had in 2010 accepted the broadcasters' arguments that local stations needed new money to stay viable. Before imposing a fee system on cable companies, it asked the courts to verify that it had the right to do so and the Supreme Court ruled on Thursday that it did not.

The 5-4 decision in Cogeco Cable Inc. v. Bell Media Inc. is a defeat for BCE Inc, which owns CTV, Canada's largest private broadcaster.

"No provision of the Broadcasting Act expressly grants jurisdiction to the CRTC to implement the proposed regime, and it was not sufficient for the CRTC to find jurisdiction by referring in isolation to policy objectives in s. 3 and deem that the proposed value for signal regime would be beneficial for the achievement of those objectives.  Establishing any link, however tenuous, between a proposed regulation and a policy objective in s. 3 of the Act cannot be a sufficient test for conferring jurisdiction on the CRTC," wrote Justice Marshall Rothstein for the majority.

Arguing on the cable side was Telus Corp, Cogeco Cable Inc, Rogers Communications Inc., and Shaw Communications Inc.

Cable firms had warned the court that television blackouts could happen as they occasionally do in the United States if broadcasters were allowed to charge for their signals.

The broadcasters said the CRTC had heard arguments about blackouts and concluded the American system was working well despite such concerns. About 90 percent of Canadians receive their signals through their cable subscriptions.

The case originally pitted broadcasters against cable and satellite-TV companies, but the lines became muddied after Canada's two biggest private-sector TV networks were bought by BCE and Shaw.

Ultimately, at the pocketbook level it could have been consumers who would have been hit by a value-for-signal program, since the cable companies threatened to pass on any extra costs, estimated by the cable industry at C$10 ($10) on customers' monthly bills.

Canada

Canada's newest Supreme Court judge issues 'call to action' over 'dangerous flaws' in the system, The Globe and Mail

Canada's highest court to rule on if convicted terrorist's life sentence will stand, Winnipeg Sun

Sale of Quebec premier's home to European business man blocked by law, The National Post


United States

Oakland police force will not be taken over by court yet, judge rules, Reuters

9/11 suspects' CIA experience will be kept secret, judge orders, Reuters


International

Senior German lawmaker points finger at 'uncooperative' Britain, says they may cause EU disintegration, Reuters

UK lawyer says Russian state culpable in death of Kremlin critic, Reuters