"Is that the demeanour of someone who is trying to hide something or is it the demeanour of an honest man?" Lawyer Alan Lenczner thundered upon hearing last February's speech by Toronto mayor Rob Ford. In it, the mayor defended a charity he runs for high school football teams, under scrutiny because of $3,150 in donations that the integrity commissioner said were obtained improperly. Ford said at the time that he should not be forced to repay money he never received personally.
"Do we want to throw out a mayor... who was elected by the people because he voted on one occasion for no... detriment to the city and no benefit to himself?" Lenczner asked a panel of judges during Ford's appeal hearing in downtown Toronto.
Alan Lenczner is a damn good lawyer -- arguably the best litigator around. And he did a bang-up job in court on Monday.
His argument is a legitimate one -- is it proper to remove a mayor elected by a democratic vote because of a technical breach of a statute?
But his argument won't work.
That's because it is a policy argument and not a legal argument.
The statute is fairly clear and while I thought the court would find the money involved was immaterial (and factually I think it is) once the court ruled the money was not immaterial the removal of Mayor Ford inevitably followed. There was no alternative.
And the finding the money was material was a finding of fact based on a careful and legitimate examination of the evidence. Once that finding was made the appeal court has to defer to the judge below -- even if they disagree with the finding of fact.
Appeal Courts, in general, are not there to reconsider facts -- just law.
The appeal will fail.