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Images released on Oct. 31 as part of a months-long police investigation, dubbed Brazen 2. (TORONTO POLICE SERVICE)
Images released on Oct. 31 as part of a months-long police investigation, dubbed Brazen 2. (TORONTO POLICE SERVICE)

Ask the legal experts: Will the public ever see the Ford video? Add to ...

The police announcement that they have recovered the video that allegedly shows Toronto Mayor Rob Ford using illegal drugs raises questions about what the public will be allowed to see. The Globe asked legal experts.

Is the public guaranteed a chance to see the Rob Ford video?

No. The video may be entered as an exhibit in Alessandro Lisi’s trial on an extortion charge, and it would then be publicly accessible. But if he pleads guilty, the video would probably not be available from the courts. “I don’t think there’s any guarantee we will ever see that video through the court process,” said Peter Jacobsen, a media lawyer who represents The Globe and Mail. “If it’s not made an exhibit, I don’t believe there’s any mechanism to convert that into a public record,” said professor Alan Young, who teaches criminal law at Osgoode Hall.

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What are the chances the video will one day become public?

The odds are good. “Maybe there will be a public inquiry about this,” Mr. Jacobsen suggested. “I can’t believe that a video like that, that has been so celebrated, will not see the light of day somehow.”

What if the trial goes ahead but the video is ruled inadmissible?

Even if it is ruled inadmissible, the media could report on the video and describe its contents, once the jury is sequestered.

Why don’t Toronto police release the video now?

They want to protect the right to a fair trial. While the contents of the video may not affect Mr. Lisi’s trial, they might affect a trial for other targets of the investigation who could conceivably be charged in the future – such as Mr. Ford. If the video is shown now, a defence lawyer might someday argue that an impartial jury can’t be found, Mr. Jacobsen says. “My instinct is that the police would like to get this out but they want to be very careful; they don’t want to give Lisi and Ford a get-out-of-jail-free card.”

Could Mr. Ford apply successfully to a court to block the release of the video?

No. While people can seek injunctions to block the spread of defamatory material, Prof. Young said, “that’s a real stretch, because it’s his own actions that have been captured.”

What can the media do to try to have the video released before the trial?

Nothing, unless it’s in a court document. There is no legal process that enables the media to apply to see evidence before a trial begins, unless that evidence has been used to get a search warrant. Reporters might see the video at a preliminary hearing, but evidence at such hearings is covered by a publication ban.

What is the public interest in seeing this video?

“We have a mayor who appears to be associating with persons involved in criminal activity,” Mr. Jacobsen says. “We have a mayor who has been associating with people who have criminal records.”

What happens next?

Mr. Lisi will likely apply for bail. It is hard to predict how many months, or years, before a trial will begin. “Cannot say – could be six months or a couple of years depending on whether a preliminary hearing is conducted,” Prof. Young said.

Why didn’t the police arrest Rob Ford when surveillance officers saw Mr. Lisi put a manila envelope in the passenger side of Mr. Ford’s Cadillac while the mayor was inside a gas station?

Normally the police would swoop in and make arrests in those circumstances. “But what happens if all that’s in there is an unopened bottle of vodka and some Gatorade?” Mr. Jacobsen said. The police didn’t want to be subject to a harassment charge, or unable to prove it was drugs. “I think there’s a great deal of caution being shown with the goal of making sure the investigation is as successful as possible.”

Should Toronto police have brought in an outside police force to investigate Mr. Ford, or work in partnership with the Toronto force?

The optics of maintaining objectivity suggest they should have. “If they were directly targeting the mayor, then perhaps they should have considered having another force investigate it,” Prof. Young said. “You always want investigations to be conducted at arm’s length. The mayor’s office has a lot of influence on policing, including considerations of budget.”

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