Considering the only thing that people want to read today is about Rob Ford and crack videos, I thought it might be appropriate to do a quick overview about what police could do with the elusive “crack video” and his admissions today that he has smoked crack in the past.
If the Mayor Ford crack video does exist in the manner described at its worst, what could police do with it?
So let’s assume a few things about the video and activities to make this analysis relevant:
1) It depicts Rob Ford smoking a controlled substance (either crack, marijuana, or other form of illegal drug). In assuming this, let’s further assume that there is no issue of identification which seems to be more accurate as time goes on with today’s announcement and startling admissions of past crack use by the mayor.
2) That the video is in police possession and can be used as evidence against him (as I don’t see any prima facie reason why it couldn’t be) to prosecute a charge.
3) Since there is no suggestion at this time of him selling, or even sharing the item, he could only be charged with simple possession of a controlled substance. I say this because “trafficking” under the Controled Drugs and Substances Act also includes sharing, offering, or giving the drug to anyone else.
So with those assumptions in place about the crack video, here is the situation as I see it:
1) Because there is still a significant problem with proof of what sort of substance is on the alleged video, it would be a very difficult case for the Crown to prove. Incidentally, because it would be a drug charge, it would be prosecuted by the federal Crown’s office known as the Department of Public Prosecutions. The Crown has to articulate in the charging document what sort of drug it is (i.e., Schedule I, II, or II) as it substantively changes the nature of proceedings, sentences, and mode of trial. Keep in mind that although the Mayor may have admitted to smoking crack, the circumstances in which he is alleged to have smoked it remain very ambiguous and raise all sorts of issues of proof including jurisdiction (place), the nature of the substance, and the mental knowledge of what was being smoked (it would be a defence to say that he thought he was smoking marijuana and therefore raising the issues set out in 2) below and other issues.
2) If the substance is believed to be marijuana, then the Crown could not proceed with any charge as simple possession of marijuana (under 30g) is a summary conviction offence has a 6 month limitation period of prosecution under 782(6) of the Criminal Code of Canada.
3) The prosecution could, in theory, lay an information to proceed by indictment under Schedule I possession (cocaine) on the basis of the admission of the Mayor and what was seen in the video. However, this would be highly unusual for a Crown to proceed by indictment on cocaine on such a small amount of drugs with such a long period of time elapsing, as well as having to overcome the issues noted above. It would also afford the Mayor to a jury trial and preliminary hearing which would all be a considerable expense for one alleged smoking event. This would also only fuel the conspiracy of persecution that seems to be thrown around by the Ford Nation and his inner circle. In short, this option will not be exercised. In conclusion, from a practical point of view, no criminal charges will come of the video per se (regardless of what it depicts). Mr. Ford’s admission really places him at in no practical legal jeopardy by itself. However, the investigation has likely uncovered other aspects that have yet to be revealed that might very well lead to criminal charges that are much more serious.
If Justice Ian Nordheimer rules that certain wiretap evidence ought to be released in relation to the the warrant relating to Sandro Lisi and this could very well open up another saga in what has turned out to be a very shameful time in Mayor Ford’s tenure. Until then, I see this as nothing more than a political preemptive strike to inevitable consequences to follow: curry favour through sympathy, attack those that now continue to ask questions, and deflect yet again when more truth comes out.