As Toronto mayor Rob Ford sat for nearly six hours on Monday in court appealing the conflict of interest conviction that could see him thrown out of office, some of his most loyal supporters were already strategizing about what will happen if he loses the appeal.
Deputy mayor Doug Holyday, one of the mayor's council allies who joined him in the courtroom, said he will work to assemble the 23 votes Mr. Ford would need on city council to be reappointed.
"Is it fair to throw him out of office over this matter? I think that it is not, and I think the public thinks it's not, and I just want to find out if there is 23 councillors who agree," Mr. Holyday said. He estimated about 12 or 15 councillors back the mayor's reappointment. "I am hoping that enough of them will set aside politics and take a look at this from a fairness standpoint."
After the appeal hearing, Mr. Ford tried to turn attention away from his legal troubles to the city's business. The final meetings on this year's budget begin on Tuesday, and Mr. Ford's executive committee meets to select a budget chair.
"All I know is I am going to continue fighting for the taxpayers like I always have," the mayor told a crush of reporters. "I am going to be at executive first thing in the morning. Obviously, we have our chairs to choose. Get our budget finalized, pass that through and just keep fighting for the taxpayers. It's all about customer service."
In November, Mr. Justice Charles Hackland found Mr. Ford violated conflict-of-interest rules when he spoke and voted on a report from the integrity commissioner involving donations from lobbyists to his football foundation. The ruling meant that he was ordered out of office, but the penalty was delayed pending the results of his appeal. At first, Mr. Ford indicated he wanted to go to the polls if he loses his job, but he has since toned down his support for a costly by-election.
His brother, councillor Doug Ford, also at his side on Monday, said he still believes Toronto voters should decide who they want to lead the city. "I believe in democracy. I believe in a by-election. If the people want Rob to be mayor, they will re-elect him. If they don't want Rob to be mayor, they won't re-elect him. I think that's fair to the people of Toronto," he said.
"In my opinion, I'd go for the by-election, but I'm not calling the shots," councillor Ford said. "It's strictly up to Rob, up to the deputy mayor and up to city council."
Regional Senior Justice Edward Then said the three-judge panel hearing the appeal will make a "prompt decision," but did not provide a timeline. The court realizes, he said, there is "some interest on the part of everyone on what the decision will be."
The mayor's lawyer, Alan Lenczner, argued that council went beyond its jurisdiction by asking Mr. Ford to repay the $3,150 he collected from lobbyists for his football foundation. The noted Toronto lawyer also argued that the province's conflict-of-interest laws do not apply to code-of-conduct violations, and that Mr. Ford made an error in judgment when he spoke and voted on the matter at a council meeting in February of last year. He argued that the earlier ruling carries a "draconian" penalty that will affect not only the mayor, but the people of Toronto.
Mr. Lenczner ended his case by showing the tape of the February council session at which Mr. Ford pleaded his case to council. "Is that the demeanour of someone who is trying to hide something?" he asked.
A team of lawyers led by Clayton Ruby presented the case against the appeal to the panel of Ontario Divisional Court, which included Judge Then, Madam Justice Lynne Leitch and Madam Justice Katherine Swinton.
Mr. Ruby argued that the $3,150 was far from insignificant, as Mr. Lenczner argued, noting it takes "a great deal of time" and effort for the average Canadian to save that much.
Mr. Ruby spent some time reading out Mr. Ford's testimony from the trial to show he took no steps to learn council's conflict rules.
To that, Judge Then interjected that Judge Hackland, the trial judge, had focused on what the mayor did not do, not what he did do. "He never quarrelled with the city solicitor when told he had a conflict," he noted.
At the end of the day, Judge Then asked Mr. Ford's lawyer to pinpoint what errors in law were made in the original ruling. Mr. Lenczner gave two: an error in the test Judge Hackland applied to the "error of judgment" argument and the use of only the factors that were helpful to his analysis.
This proceeding is Mr. Ford's last chance to save his job, according to the Municipal Conflict of Interest Act, but an Ottawa lawyer is suggesting there remain several ways that this fight could go on to the Supreme Court.
Eugene Meehan acknowledged that the act specifies that Mr. Ford can't go to the Court of Appeal. But that doesn't close the door entirely, he argued. A specialist in Supreme Court advocacy, Mr. Meehan cited several scenarios that would allow Mr. Ford (or Paul Magder who made the complaint, should the mayor win this round) to take the case to the top court.
They could skip directly there under the terms of Section 38 of the Supreme Court of Canada Act, he said. Or they could bypass the Court of Appeal if both parties consent. And the loser could go the Court of Appeal and, if it refuses to hear the case, use that refusal as grounds to take the case to the top court.
But John Mascarin, whose practice at Aird & Berlis LLP includes local government and municipal law, said he would be "shocked" if these scenarios play out. "It has never happened in the 40 years, the 40-plus years, the act has been here," he said.
With a report from Oliver Moore