Special Report: Integrity Commissioner

Merulla to Call for Police Investigation in Ferguson-Coleman Incident

Merulla wants to remove Ferguson from Police Services Board while outside police agency investigates.

By Ryan McGreal
Published March 02, 2015

Ward 4 Councillor Sam Merulla has circulated a notice of motion calling on City Council to ask an outside police agency to investigate the February 26, 2014 incident between Ancaster Councillor Lloyd Ferguson and journalist Joey Coleman, and to remove Ferguson from the Police Services Board where he currently sits as Chair.

Background

As widely reported last year, the incident took place around 10:45 PM on the way to a press conference after an in-camera Council debate over the stadium lease to the Hamilton Tiger-Cats.

Coleman was following City communications manager Mike Kirkopoulos and former Councillor Brad Clark to the meeting when Ferguson walked up and began talking to Clark and Kirkopoulos.

Ferguson turned to Coleman, who was carrying his recording equipment to the press conference, and told him to move away. Ferguson then grabbed Coleman by the arm and shoved him back. As Coleman reported in a post on his website:

Ferguson turned around, strongly clenched my upper right arm and shoved me with force.

He did not let go of his grip, continuing to clench me and strengthening his grip as he very angrily stated with a threatening tone that I wasn't welcome to stand where I had been, stating further that he didn't want me eavesdropping upon his conversation, looking at my camera.

Coleman says the camera was turned off and the lens was shuttered and he was simply carrying it to the press conference.

The next day, Ferguson apologized to Coleman both privately and publicly, and Coleman accepted his apology.

Integrity Investigation

A couple of months later, two Hamiltonians independently filed complaints against Ferguson to the City's Integrity Commissioner, Earl Basse, who upholds Council's Code of Conduct.

It took nearly a year for Basse to come back with his report. He viewed the City's security camera footage and interviewed Ferguson. He did not interview Coleman or either of the two witnesses to the incident - Kirkopoulos and Clark.

Basse concluded that Ferguson had violated the Code of Conduct but that it had been a long and stressful day, and there should be no further consequence given that Ferguson had apologized.

Council voted to accept Basse's report last week. Only two councillors voted against accepting the report: Ward 3 Councillor Matt Green and Ward 7 Councillor Scott Duvall.

Now Merulla is alleging that the incident constitutes assault under the Criminal Code of Canada. Section 265 of the Code reads:

265. (1) A person commits an assault when

(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;

(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or

(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.

Ferguson insists that the incident was not an assault. In an article published in today's Spectator, Ferguson is quoted saying:

"Absolutely not ... listen, I was approached from behind while having a confidential conversation with a senior staffer ... after a very contentious in camera meeting. I caught him (Coleman) coming up behind me with a recording device. I didn't know if it was on or off. I asked him twice to move, and then I took him by the arm to move him," he said.

Ferguson has also said he is happy that Basse's report recommended no penalty, and that he does not plan to step down from the Police Services Board.

Ombudsman Weighs In

Currently, the office of the Ontario Ombudsman has no official power to investigate municipal issues, though this is set to change under pending legislation that brings Ontario municipalities, universities and school boards under its purview.

Bill 8, the Public Sector and MPP Accountability and Transparency Act, was carried on December 9, 2014 and received Royal Assent on December 11, but the Ontario Government has not yet proclaimed it into law.

Meanwhile, Ontario Ombudsman Andre Marin has weighed in on the Ferguson issue on Twitter by giving Basse's report an "F" grade. Marin posted marked-up copies of the report's pages, noting that the report provided no analysis, interviewed no witnesses and explored no potential sanctions.

It also accused the report of playing "inside baseball" in its review of the complainants, which implied that they were politically motivated before concluding that they were "neither vexatious nor frivolous".

Andre Marin's notes on Basse's report, page 1 of 5
Andre Marin's notes on Basse's report, page 1 of 5

Andre Marin's notes on Basse's report, page 2 of 5
Andre Marin's notes on Basse's report, page 2 of 5

Andre Marin's notes on Basse's report, page 3 of 5
Andre Marin's notes on Basse's report, page 3 of 5

Andre Marin's notes on Basse's report, page 4 of 5
Andre Marin's notes on Basse's report, page 4 of 5

Andre Marin's notes on Basse's report, page 5 of 5
Andre Marin's notes on Basse's report, page 5 of 5

Marin concluded:

If #Bill8 had been in effect, I would have sent #HamOnt IC report back 2 drawing board. And not the grade 3 one it appears it was written on.

Ryan McGreal, the editor of Raise the Hammer, lives in Hamilton with his family and works as a programmer, writer and consultant. Ryan volunteers with Hamilton Light Rail, a citizen group dedicated to bringing light rail transit to Hamilton. Ryan writes a city affairs column in Hamilton Magazine, and several of his articles have been published in the Hamilton Spectator. He also maintains a personal website and has been known to post passing thoughts on Twitter @RyanMcGreal. Recently, he took the plunge and finally joined Facebook.

27 Comments

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By CharlesBall (registered) | Posted March 02, 2015 at 11:24:14

De Minimis Non Curat Lex.

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By quidquid Latine dictum sit altum videtur (anonymous) | Posted March 02, 2015 at 11:29:56 in reply to Comment 109837

An elected councillor assaulting a journalist is hardly an extremely minor transgression.

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By CharlesBall (registered) | Posted March 02, 2015 at 11:38:36 in reply to Comment 109839

See R. v. Juneja, 2009 ONCJ 572 (CanLII). (By the way, your Latin quote does exactly what you complain of. De minimus a well known legal doctrine and applies to criminal charges of assault.)

Comment edited by CharlesBall on 2015-03-02 11:41:12

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By Tybalt (registered) | Posted March 02, 2015 at 15:43:42 in reply to Comment 109843

The central problem here is (1) you don't know the facts of the incident and (2) the doctrine is not applicable from outside to an investigatory context, it's at a minimum for investigators to determine.

I'd afford Basse's comments to the press no weight at all here as (1) they didn't form part of his report, so clearly he doesn't stand behind them (since they would have been relevant) and (2) his deficient report is proof positive of the incompetence of the man's decisionmaking at this juncture.

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By quidquid Latine dictum sit altum videtur (anonymous) | Posted March 02, 2015 at 11:52:19 in reply to Comment 109843

Familiar with it, thrown out because it was at worst a veiled threat of the 'I know where you work' variety. Outrageous to equate it with a physical assault.

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By quadquad (anonymous) | Posted March 02, 2015 at 11:58:08 in reply to Comment 109845

Well that's not right, there was also a wrist grab. Question is whether Ferguson's grab and shove goes beyond "trifling".

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By CharlesBall (registered) | Posted March 02, 2015 at 11:55:16 in reply to Comment 109845

The case was a physical assault. Two doctors. One grabbed the others wrist and allegedly yanked it down with force trying to direct him in a certain direction. Sound similar to me.

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By AnjoMan (registered) | Posted March 02, 2015 at 11:24:58

I'm sure that Marin is good at his job but I just want to say that he is not so great at twitter. b = be, 2 = to? Its not 2001 anymore, and 140 character limits are not a good reason to write like you are using MSN messanger.

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By RTHS (registered) - website | Posted March 02, 2015 at 11:35:02 in reply to Comment 109838

Messanger.

Come on.

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By AnjoMan (registered) | Posted March 03, 2015 at 08:38:16 in reply to Comment 109841

Its shorter if u rite 'messnger'.

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By ur (anonymous) | Posted March 03, 2015 at 09:55:43 in reply to Comment 109861

u mn msngr

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By RTHS (registered) - website | Posted March 02, 2015 at 11:37:04

I don't understand why this isn't a bigger deal.

Councillor assaults man, man is a reporter - credentialed and legit, by all accounts - and is not charged, faces no repercussions, etc. Merulla is right to be after this guy - and should be calling for more than an investigation.

Last I checked, apologizing for an assault didn't grant a legal pardon.

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By jason (registered) | Posted March 02, 2015 at 20:49:56 in reply to Comment 109842

imagine if Joey Coleman had done this to one of the politicians?
The double standard over there is wild. I appreciate that Joey accepted his apology, but that doesn't give the city the right to pretend nothing happened.

Comment edited by jason on 2015-03-02 20:50:32

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By classic hamiltonians (anonymous) | Posted March 03, 2015 at 09:54:17 in reply to Comment 109857

... and if it was rob ford who did it, the outcry would have pushed this onto the daily show. classic hamiltonian move to just shrug and say "who cares".

it's a town full of people who have given up on life and don't want anyone else to have any power to make their own lives better.

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By that happened (anonymous) | Posted March 03, 2015 at 15:53:30 in reply to Comment 109865

rob ford has pushed lots of reporters. and he's had other people push reporters for him. google it.

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By RTHS (registered) - website | Posted March 02, 2015 at 11:42:03 in reply to Comment 109842

Imagine for a moment that you could use "I had a long stressful day" as a rationale for assault? This city cracks me up.

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By Stever (anonymous) | Posted March 02, 2015 at 12:25:42

This is all politics, now.

Clearly, Merulla wants Ferguson off the Police Services Board and replaced with his choice - Chad Collins - and is using this incident as a way to accomplish his goal.

No matter your feeling of the incident, this is now only a political machination with a little of Merulla's political theatre thrown in for good measure.

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By Tybalt (registered) | Posted March 02, 2015 at 15:45:20 in reply to Comment 109848

There has been a substantial public outcry over this matter, once the obviously inadequate report became public.

Never discount political factors, of course, but there are very serious policy issues at stake here.

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By Stever (anonymous) | Posted March 02, 2015 at 20:28:46 in reply to Comment 109854

I don't disagree with the outcry, but Merulla is playing 100% politics.

He's not calling for Ferguson to be removed from the Governance Review Committee, which is the Committee that selects and manages the Integrity Commissioner position. He's also NOT calling for the immediate resignation/firing of the Integrity Commissioner for poor performance.

Wouldn't it make sense to have motion to have him removed from that Committee and end the retention of a lame duck IC?

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By ItJustIs (registered) | Posted March 02, 2015 at 12:27:24

I'm not sure what the main issue here is.

Is it that Councillor Ferguson did something that was foolish, a rash physical reaction to a journalist?

Is it that Councillor Ferguson apologized to the journalist, the apology was accepted, end of story...except that it ain't?

Is it that Mr. Basse has a history of 'questionable' assessments, some of them based on very little investigation?

Is it that (because of illness, because of personal reasons) Mr. Basse's turnround time for each investigation is deplorable?

Is it that Mr. Basse's salary, given what's being supplied by him, is questionable?

Is it that incidents such as what we're seeing unfold by way of Councillor Merula's motion reveal tons about City Hall, not much of which is the stuff of which we can be proud?

Regardless of the answers to the questions I've posed, my belief is that these incidents turbo-charge Hamiltonians' lack of confidence in what goes on at 71 Main Street West. No matter how trivial the interlude. That is, we're living in a pretty toxic environment, even if we've become inured to it.

Sad, really, especially when, as Graham Crawford has suggested, you frame every motion, every vote, every decision according to Hamilton's vision. Clearly, this episode doesn't qualify as holding true to that vision.

Comment edited by ItJustIs on 2015-03-02 12:29:28

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By KevinLove (registered) | Posted March 02, 2015 at 14:07:09

It is a very serious matter when a politician assaults a journalist. This has the effect of discouraging journalism and thereby reducing the transparency of our government.

Issues such as the apology can be considered as mitigating circumstances at sentencing.

Suppose that I myself had committed the exact same acts against a prominent politician, for example, Steven Harper. I would probably still be in jail.

Shouldn't the law apply equally to everyone?

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By it's just better than nothing (anonymous) | Posted March 02, 2015 at 14:07:54

Even if Sam is a pain, and his conversion to the NDP in 2003 after he was Di Ianni-ing on the absolute necessity of a through-a-park expressway [not convenient, Sam said, but vital, & in that very location], and even if many including local NDP supporters groaned and rolled eyes at his defection from his Liberals--and me too--still, he's our pain, even with his cleared police investigation, and it's necessary that SOMEBODY take on uncle Lloyd Ferguson, and add Collins too. Sometimes we don't care why so long as somebody calls out the ossified brain bullies on our council.

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By dozey (anonymous) | Posted March 02, 2015 at 19:33:03

I have to admit it doesn't sound to me like the confrontation was a big deal. If someone did something similar to you (say, grabbed your arm momentarily and told you to f-off) would you REALLY be calling the police and trying to file assault charges? I don't think any normal person would do that. You'd probably just say to yourself "what an ass-clown" and move on. I suspect this is escalating for political reasons and has now become just an excuse for score-settling.

That said, Ferguson's behaviour was embarrassing and the Basse report was a joke.

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By AnjoMan (registered) | Posted March 03, 2015 at 08:45:53 in reply to Comment 109855

The problem is he isn't just an ass-clown, he is a city councillor and he did this to a journalist in council chambers. The city can't pretend that they are open to democratic engagement when elected officials can get away with this kind thing.

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By exactly (anonymous) | Posted March 03, 2015 at 09:59:44 in reply to Comment 109862

"in council chambers" - I think this is the key message. It's one thing for two pals (or strangers) to get shove-y in a bar. But how will citizens feel about becoming engaged in the process of improving our city if it's OK for councillors to just shove them out of the way? If Ferguson can't handle the scrutiny of being a public official, he's welcome to give up the job to someone who has some integrity (and drive to make Hamilton better). What a coward.

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By -Hammer- (registered) | Posted March 03, 2015 at 00:34:12

K, here is the story. Coleman accepted the apology which to me says he doesn't want to press charges, and no physical harm was done here. This is a summary assault at best carrying up to a $5,000 fine and 6 months of jail time that no Judge is going to lay down on a well known, public figure who is active in the community and does countless charity events. More then likely result in a absolute discharge, so the entire criminal charges angle is nothing but a media exercise. Frankly, this kind of thing doesn't belong in the courts. It's the kind of crap, that's on par with weed possession that clogs our court system and lets real criminals get away because of a lack of speedy trial.

Now, I'm not saying Merulla is wholly in the wrong here, as if council won't act on this like it should, he's using the only other tool at his disposal to see Ferguson pay somewhat for his actions. It's just he's using an auger to dig out a weed on the lawn of our city. Do I think Ferguson should be punished in some form? Yes. Does the rest of the city agree? I'd like to think so, yes. Why council doesn't? Well that's what happens when you have career councillors, they start up their own old boys club. Frankly city council should have codified punishments for violating said code of conduct with mandatory minimum fines for violations, not just "punish at council's discretion" so Merulla doesn't have to use the nuclear option here. It doesn't, that's a problem, but that's another can of worms.

The real story here is the Integrity Commissioner's abject failure in his position and complete lack of objectivity. The purpose of the Integrity Commissioner is to advise memebers of council and the city bureaucracy the specifics of the code of conduct and to investigate at the direction of council or citizens of the city both members of council and the city bureaucracy for violations of their codes of conduct in an objective manner. It is also their job report their findings to council & the pubic, and recommend punishments for violations of the code of conduct to council. So from the get go, the position is toothless. The most it can do is say "This guy was wrong, council, you should punish him" and leave it to council to decide, which is a joke. Council should not be allowed to dictate punishments or lack thereof on their own, but moving on that the position is toothless to being with.

So given the Integrity Commissioner's role, toothless by design, what's the point of keeping Basse on the payroll? He has proven by his joke of a report that 1) He's incapable of investigating incidents, as much of his report relies on media accounts over ACTUAL accounts of witnesses from both sides. 2) Is incapable of being independent, as his report fails to even interview the victim in this case and indeed has a tone of blame towards to victim, citing emails after the fact in an attempt to discredit the victim who is making a fair request for the videos in question. 3) Is incapable of making any kind of recommendations for punishment on what is a clear violation of the code of conduct that even his poorly constructed report HAS to acknowledge occurred. 4) Seems incapable of advising council of city policy as he seems to lack the integrity himself to be objective in his own investigations, or lacks the basic understanding on how to do his job. IE: He's a waste of space and taxpayer dollars.

Comment edited by -Hammer- on 2015-03-03 00:38:55

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By mayornot (registered) | Posted March 03, 2015 at 15:52:10

Correction to someone's post re Sam: It happens that Sam M converted to the NDP in 2004, not 2003. He got real mad at the Liberals at the time of Liberal nomination for candidate to run in the Hamilton East Spring 2004 provncl by-election to replace Dom Agostino, who'd died. Dom's brother Ralph was annointed as Lib candidate. He was deep under water right away and got whomped. Life long Liberals voted en masse for Andrea H., NDP--landslide. The voter turnout for that by-election was better than for some ridings in general elections. Sam came out in support of Andrea--but he may have had a variety of axes to grind with the local Liberals. Let's check old Spec stories/columns; or let's just ask Sam! At best, he was at least publicly making a show of an ostensible break with the then-mayor Di Ianni--who is a flexible Liberal, about whom many long-time Libs in town said, in Fall 2003, in astonishment, "Larry who?!? running for what?!?" No, really, they did. And then he was charged & convicted on money stuff, breaking Ont Municipal Elections Act, and he wrote an essay instead of going to jail--sort of like Beaver Cleaver. And now Sam is Ward 4 for life.

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