Prosecuting Mayor Rob Ford: the devil is in the details

BY SOLOMON FRIEDMAN

OTTAWA CITIZEN

NOVEMBER 9, 2013

Torontonians have long believed that their beloved city sits at the centre of the universe. And, for the past few weeks at least, they have been right.
Mayor Rob Ford’s antics, as documented in amateur video, police documents and his own seemingly off-the-cuff press conferences, have dominated media coverage in Canada and across the world.
Dubbed Canada’s Chris Farley Tribute Mayor by Comedy Central’s Stephen Colbert, Ford has come under increasing scrutiny, most recently for his not-so-shocking admission that “I have smoked crack cocaine.”
Observers in some circles are calling for police to lay criminal charges against Ford on the basis of the reported crack cocaine video and his own recent admissions.It is an offence to possess a substance listed in Schedule I of the Controlled Drugs and Substances Act. This includes cocaine in all its forms, including crack cocaine.
This raises a fascinating legal question: based on the available information, could a court convict Ford of a criminal offence?
Possession, for the purposes of the criminal law, requires two essential elements. First, the accused must know about the existence and nature of the substance in question. Second, the accused must exercise some control over the prohibited item.
Possession can be momentary. There is no need for long-term storage or for an intention to maintain control over some period of time.
Ordinarily, the Crown prosecutor will tender expert evidence — in the form of a chemical analysis of the purported substance — to prove beyond a reasonable doubt that the substance before the court is indeed an illegal drug.
While this is the general course, it is not, strictly speaking, required.
Individuals have been convicted of drug possession based on their own words and based on the opinion of others, including police officers, who were shown to have some familiarity with the substance in question.
What about Ford’s admission that he smoked crack cocaine?
In general, out of court statements — generally referred to as “hearsay” — are inadmissible in court proceedings. One exception to this rule, however, is a statement made contrary to one’s self interest — colloquially known as an admission. Unlike other types of hearsay, admissions of wrongdoing by the accused are generally admissible.
Of course, Ford’s counsel could always argue that his statement itself is unreliable. The mayor did, after all, caution that he had no clear recollection of smoking crack cocaine, as it may have occurred “in one of my drunken stupors”.
There may, however, be another bar to successfully prosecuting Ford for smoking crack cocaine. Criminal charges are generally placed before the court in the form of an “information”. This is the charging document that grants the court jurisdiction over the individual.
The information must set out, with a certain degree of specificity, several key elements of the offence. It must correctly name the accused, set out the date of the alleged offence and describe the jurisdiction in which the offence was committed. In addition, the criminal offence must be named, along with sufficient detail to enable the accused to properly defend against the allegation.

While the identity of Rob Ford would not be in dispute — indeed, it would be difficult for him to mount a defence against the video evidence on the grounds of lack of identification, given his uniquely identifiable appearance — it might be difficult for the prosecution to accurately name the date (or even a range of dates) of the offence or the jurisdiction in which it allegedly occurred.
However, given the emergence of another video — reportedly purchased by the Toronto Star for $5,000 — that shows Ford’s substance fuelled tirade against another individual, there is the prospect of charges on a non-crack related criminal offence.
In the video, Ford threatens the life of an unknown individual. “I’m gonna kill that f—ng guy,” Ford rants. “I’m telling you, it’s first-degree murder.” He then proceeds to jab at the air with stunted tyrannosaurus-like gesticulations.
It is a criminal offence to threaten to cause harm or death to another person. The subject of the threat does not even need to know that the threat was ever made.
The prosecutor will need to prove that Rob Ford intended for his words be taken seriously. So long as the words used, viewed in their full context, would convey a threat of death to any reasonable person, the offence will be made out.
Once again, the astute defence lawyer may argue that Ford did not intend for his words to be taken seriously, that instead, it was his best impression of a WWF pre-match rant, in the tradition of such greats as professional wrestling legend “Rowdy” Roddy Piper.
Finally, should the above routes to criminal liability fail, a clever prosecutor might pursue a bylaw conviction for public urination or unlawful dumping of liquor bottles.
There is, after all, more than one way to skin a cat. Or in this case, to prosecute the mayor of Canada’s largest city, Toronto the Good.
Solomon Friedman is a partner with Edelson Clifford D’Angelo Friedman LLP. He can be reached at solomon@edelsonlaw.ca or 613-237-2290. Follow Solomon on Twitter at twitter.com/firearmslaw or at his website, www.affordabledefence.com.