Mohammad Khattak, right, is shown posing with Toronto Mayor Rob Ford, second from left, and two other men.
Lawyers for an accused drug dealer are asking an Ontario Superior Court judge to compel the police to provide them with a copy of the infamous videos – one of which apparently shows Toronto Mayor Rob Ford smoking crack cocaine – recently unearthed by police.
Toronto defence lawyers Daniel Brown and Nathan Gorham will appear in court Friday and argue that their client, Mohammad Khattak, is entitled to copies of the videos, which Chief Bill Blair announced last week had been recently recovered by police technology specialists.
Mr. Khattak, 20, was arrested in June as part of the sweeping investigation by Toronto police known as Project Traveller, a probe that targeted an alleged drug-dealing and gun-running criminal organization operating out of high-rise apartment buildings in the city's west end.
The lawyers are relying on a provision of the Criminal Code that allows interested parties to access materials that have been seized by police. Often the section of the code is used by accused persons to retrieve their belongings, or by investigative agencies that want access to records previously seized, such as the Canada Revenue Agency seeking the banking records of a fraudster that police have arrested, Mr. Brown said.
In this case, Mr. Khattak is arguing that the videos are relevant to his defence because he has been so closely linked to their creation. When alleged drug dealers were attempting to sell one of the videos to the Toronto Star and the U.S.-based gossip website Gawker in May, the sellers – in an effort to prove their bona fides – provided reporters with a photograph of Mr. Khattak posing with Mr. Ford, along with two other accused gang members, in the driveway of an alleged crackhouse.
"It's a novel way to access evidence that isn't readily being disclosed," Mr. Brown said. It's important that Mr. Khattak, who has been charged with trafficking marijuana and participating in a criminal organization, see the videos because it could bolster his defence, Mr. Brown said. "I expect it will show that Mohammed Khattak had nothing to do with the creation of those videos or the distribution of those videos."
A number of lawyers for the 48 people arrested as part of Project Traveller have already requested copies of the videos from prosecutors, and they have been told that the files have yet to be passed on from Toronto police. But it's not clear that, even once police do provide the videos, whether they will be released to the accused as part of the process known as disclosure. One of the lead prosecutors overseeing the case, Paul Renwick, told defence lawyers in an email sent Monday that he will need to see if the videos meet "the threshold of relevance" before handing them over.
Mr. Brown said that Mr. Khattak isn't content to wait for the Crown to make a determination about the relevance and wants them now. He said that under this section of the criminal code any interested party is welcome to join in his application, and given that both Mr. Ford and his defence lawyer Dennis Morris have called upon the police to release the videos, they may want to join.
"If the mayor is truly interested in seeing these videos, we'll see him in court on Friday," he said.
However, Mr. Ford's lawyer, Dennis Morris, said he would not join with Mr. Khattak's lawyers in a bid to get the videos released.
"The answer's no. I'm not able at a split-second to do something like that. I've got other things I'm doing. And the difference is his guy's charged, mine isn't," he said on Wednesday.
Mr. Morris said he's pursuing other means to secure the public release of the videos.
With a file from Jill Mahoney
Greg McArthur