BULLETIN: Toronto Mayor Rob Ford Threatens to sue Ex-Staffers for Statements Made to Police

As yesterday’s City Council proceedings were crawling towards a close, Justice Ian Nordheimer of the Ontario Superior Court ordered that certain previously redacted sections of the now infamous Project Brazen 2 ITO be unsealed. (Note: the entire ITO, which is a document filed to obtain a search warrant, with yesterday’s unsealed information, can be viewed here and here.)

Most of the new revelations–which detail the Mayor’s alleged marijuana, cocaine and OxyContin use, his alleged association with escorts, his alleged racist and sexist slurs and his now-confirmed propensity to drink and drive–were brought to light by statements given to police by Ford’s ex-staffers in the context of a criminal investigation. 

Mayor Ford responded to these new insights into his extracurricular activities with this statement to the media:

“Unfortunately I have to take legal action against Issac Ransom and George Christopoulos and Mark Towhey, and I have to take legal action against the waiter that said I was doing lines at the Bier Markt that is outright lies, that is not true.”

Just moments later, Brian Shiller, a partner at Ruby Shiller Chan Hassan, made a statement himself, offering to defend the putative defendants:

“I am offering to act for all of the proposed defendants in Mayor Ford’s anticipated lawsuit on a pro bono basis. It is important that a signal is sent that the citizens of Toronto will not be intimidated by the Mayor of Toronto from cooperating with the police in an investigation into potential wrongdoing by the leader of this great city.”

Can Statements Made to the Police During an Investigation be Defamatory? 

Over at Torontist, Christopher Bird answers this question remarkably well (and it is highly recommended that you head over there and read what he has to say). There, Bird identifies a number of barriers that Ford’s suit will likely come up against, including the defences of truth, qualified privilege and absolute privilege. One of the most interesting passages in Bird’s piece is the unique role of the concept of ‘publication’ in this circumstance:

“This would appear to be one such problematic situation, because the average individual making a statement to the police does not expect it to become public knowledge.

If we were not talking about the mayor, and the claims made by the staffers in their police interviews were true, the statements made by those staffers would likely never have become a matter of public discussion before a criminal prosecution commenced (which would have required the police to lay an Information, and as Justice Hood has pointed out that is obviously absolutely privileged). If we were not talking about the mayor, and the claims made by the staffers turned out to be false, in any other situation the police would have just said at some point “well, this is false,” closed the file, and if they were sufficiently irritated with the “informant” possibly laid some charges against them for wasting the police’s time.

In short: in any other situation, the staffers’ statements to police would never have been released to the public and Rob Ford would have no grounds for a defamation claim, because there would be no damage to his reputation (if the statements were false) or the damage to his reputation would be necessary to protect the integrity of the justice system (if the statements were true and led to a criminal proceeding).”

Ultimately, Bird concludes:

“But because Rob Ford is the mayor, and because the contents of the ITO were released to the public, and because the Crown has not yet chosen to prosecute Rob Ford for a crime, it ispossible for Rob Ford to sue his staffers for defamation. It’s just not very likely that he will succeed.”

While there are significant doctrinal hurdles for the Mayor on this front, this action, if taken, also reeks of a SLAPP suit. ‘Strategic lawsuits against public participation’, as they are known, are lawsuits brought by resource-rich individuals or entities primarily for the purpose of silencing comparatively resource-poor defendants. In an attempt to protect what remains of his largely shattered reputation, Ford may be trying to send a signal to others: be careful what you say to journalists, be careful what you say to the police and be careful what you publish, because it may cost you.

SLAPP suits pose obvious and significant public policy concerns in a number of contexts. Anti-SLAPP legislation has been enacted in Quebec, and there is a strong contingent in the legal community currently pressing the Ontario government to enact the same.

As always, check back here often as thecourt.ca will continue to cover the various legal angles of the Rob Ford melodrama.

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