The now-public “information to obtain” a search warrant associated with police investigation Project Brazen 2 has many Torontonians asking why Rob Ford has not been charged by police with any number of criminal offences seemingly revealed in the course of the investigation. The unvetted warrant, released on December 4, 2013 can be found by clicking here. (Part I, Part II, Part III, Part IV, and Appendix.)
What follows is a brief look at the potential criminal offences Torontonians may see as arising from the new information, and a criminal defence lawyer’s explanation as to why Toronto Police are quite right to not charge the mayor with any offences. In short, there is no admissible evidence that would sustain criminal charges, let along a successful prosecution.
It is also necessary to point out that none of the information contained in this warrant has been proven in Court. Not only has Rob Ford not been charged, he would be presumed innocent of any offence even if he was. People may draw their own conclusions and opinions about this police information; however, the intention of this posting is simply to illustrate why Toronto Police could not charge the Mayor as they lacked evidence and reasonable and probable grounds to do so.
The wiretap reveals an April 20 phone conversation between Liban Siyad and Abdullahi Harun in which Huran claims he has photos of Mayor Ford “doing the heeza”. This is a reference to heroin use.
Why wasn’t Rob Ford charged with possession of heroin?
This is not sufficient evidence of heroin use with which to charge the mayor. It is merely a recording of a man claiming that he has seen (or owns) a picture of the mayor doing something illegal. It is, essentially, hearsay upon hearsay and very far from what would be required to convict the mayor of possessing the narcotic.
2. The Home at 15 Windsor Road is a Known Crackhouse
The information to obtain (ITO) reveals that the address 15 Windsor Road is known to police to be “trap house”, or a crackhouse. This appears to be the house outside which Rob Ford appears with three other men in the now infamous driveway picture that has been circulating on the internet since last May.
The ITO also reveals two conversations in which it is said that Ford is at that house. One such conversation from April 20 has the resident of that house, Elena Basso tells Siyad that Ford is at her place. A subsequent conversation with Siyad confirms that Ford is at that house.
Why hasn’t Rob Ford been charged with attending a known crackhouse?
It is not an offence to be in a home where police suspect or even know that drugs have been sold or used in the past. Police often monitor such homes in the hopes of catching a suspect doing something illegal, but there is nothing illegal in and of itself about being in 15 Windsor Road, despite police information about what that house is sometimes used for.
3. The Death of Anthony Smith
Smith appeard in the infamous photo with Ford and was recently shot dead outside a Toronto nightclub.
It is revealed in the ITO that former staffer David Price had disclosed to Ford’s former chief-of-staff Mark Towhey that Smith owned the cellphone with the crack-smoking video on it. This after Price got an anonymous tip to that effect. Price suspected this was motive for Smith murder.
Why hasn’t Rob Ford been charged with murder?
Of course the suspicions of Price (which do not themselves even include any involvement by Ford himself) do not amount to evidence in any way shape or form. Might such information lead police to investigate that motive in the murder of Smith? Sure. And perhaps they did. But this cannot, obviously, form the basis for charges being laid.
Furthermore, the wiretap picked up chatter that Smith was killed as retaliation for a robbery (thus totally unrelated to the supposed motive associated with Ford). The guilty plea entered, and the facts relied upon in that plea, in relation to this homicide is consistent with the murder having nothing to do with Mayor Ford.
The ITO reveals conversations surrounding an incident in which Rob Ford’s cell phone was apparently stolen in April. Ford friend and occasional driver Alexander “Sandro” Lisi is subsequently heard saying in a conversation with Siyad that if the phone is not returned, Ford will “put heat on Dixon (gang)”
Why hasn’t Rob Ford been charged with blackmail?
It would seem that several offences might be associated with such a threat, particularly egregious as it relates to the mayor’s position of power. However, there is no evidence that Lisi was conveying this message on behalf of the mayor and not of his own volition. Secondly, this information, like many other instances in the warrant, come from the hearsay of others and not directly from Ford, or even Mr. Lisi.
5. Smoking Crack: Photo Evidence
The ITO reveals that Siyad made several statements on the phone on April 20 to the effect that a) he has photos of mayor on the pipe and b) that he has a picture of the mayor “smoking rocks” that Siyad claims he will be put on Instagram.
Why hasn’t Rob Ford been charged with possession of crack-cocaine?
Again, this is hearsay. Siyad saying that he has seen or owns a picture of the mayor smoking crack is not the same as police having in-hand such a photo, and having such a photo would not mean it is possible to determine what is being smoked.
The mayor could not be convicted on the basis of this hearsay evidence and so no charges have been brought forward.
6. Possession of Drugs: Wiretap Evidence
The ITO reveals a phone coverstion between Basso to Siyad on April 20 at 12:54am in which Basso tells Siyad to come over and that the mayor was present at her place.
Shortly thereafter, Huran tells Siyad in a separate phone conversation to go to Basso’s (a.k.a. “Princess’s”) because Mayor Ford wants drugs from him.
Why wasn’t Rob Ford charged with possession of a controlled substance (drugs)?
Again, much like the reason Ford has not been charged with anything arising from this ITO, there is not sufficient evidence.
The hearsay evidence that Ford had asked for drugs is a far cry from the sort of credible and admissible evidence that might lead to a reasonable prospect of conviction. As such, no charges have been laid.
7. Attempting to Buy the “Crack Video”
Perhaps the most interesting bit of information to arise from the new ITO is a conversation in which Siyad says that Ford offered him $5,000 and a car in exchange for the infamous video which allegedly showed the mayor smoking crack.
Why hasn’t Rob Ford been charged for trying to buy the video?
While the implications of such allegations, if true, are damaging indeed, it is not clear they relate to a criminal offence. Of course the mayor had been adamantly denying the presence of such a video in public at the time and this would reveal the extent of his knowledge and dishonesty.
However, it is not clear that police had been seeking to obtain this video as evidence in an ongoing investigation at the time or that Ford would be apprised of this knowledge. It is not as though Ford could likely be said to have impeded a police investigation or obstructed justice.
8. Drunk Driving
The ITO also reveals information relating to potential drinking and driving (in Canada, Impaired Driving or Over 80) charges. Namely, informants report seeing Rob Ford drinking vodka in his car and note finding empty vodka bottles in a garbage can such that they believe the bottles were thrown out by Ford.
Why has Rob Ford not been charged with Drinking and Driving?
Firstly, in Canada one can be charged with operating a motor vehicle while impaired and/or while containing over the legal limit of alcohol concentration in the blood.
Neither of these offences are nearly proven by the information in the ITO. It is a Liquor License Act offence to have open alcohol while having care or control of a motor vehicle. But his is not the Criminal Code offence associated with “drunk driving”.
Even Ford’s own (recanted) admissions of drinking and driving would not amount to evidence relating to the alcohol concentration in his blood, for example.
9. Trafficking Marijuana (in Exchange for Return of Phone)
The ITO reveals that Lisi seems to have given Siyad marijuana (“spliffs”) in exchange for the return of Ford’s cellphone.
Why wasn’t Rob Ford charged for trafficking in marijuana?
First and foremost, despite their apparently close relationship, there is no way to connect the mayor to these actions of Sandro Lisi. Just because the phone belonged to Ford does not mean – at all – that he supplied the marijuana. And of course, Lisi can only be found guilty of trafficking marijuana if that could be proven beyond a reasonable doubt. These recorded conversations do not do so.
10. Solicitation of Prostitution
The ITO reveals that Elena Basso was known to police to have been involved in prostitution. This confirms previous reports from city hall staffers that Ford has consorted with prostitutes in the past.
Why hasn’t Rob Ford been charged with solicitation of prostitution?
There is, of course, no evidence of such activity. The fact that Ms. Basso may have been involved in prostitution in the past and that the mayor has some level of relationship with her may amount to political fodder to be used against the mayor, but not a criminal offence.
ALL OF THE allegations arising from this new information fall into the same category: they may indeed be damaging to the reputation of the mayor, but they do not amount to sufficient evidence that there is a reasonable prospect of criminal conviction. As such, Mayor Rob Ford has not been charged with a criminal offence. At least not yet. Who is to say what sort of evidence might surface as this seemingly never-ending saga rolls on.