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Rob Ford could be charged – by a citizen

While Mayor Rob Ford hasn’t been formally charged by police for any of the number of potential crimes he’s publicly admitted to, Toronto criminal lawyer Aaron Harnett says it’s possible he could face charges laid by one or more private citizens.

While no such plans are known to exist, many Torontonians are asking themselves if charges could be laid regarding the mayor's admission of criminal conduct, and Harnett says under s. 504 of the Criminal Code any person can have a criminal charge laid against another person.

“In the case of Mayor Ford, you don’t need to have the drug to secure the conviction in light of a reliable confession,” says Harnett. “When you have a situation where someone makes an admission of criminal behaviour, that admission can, without more evidence, be grounds for a conviction in criminal court.”

Typically, says Harnett, “Laying a private charge takes place when an accused wants to countercharge somebody. For example, there is a bar fight, the police take statements and charge A for assaulting B, but A wants to have B charged.”

Harnett says that while this  section is most typically used for these types of situations, “ there are lots of examples of citizens having charges laid where police, for whatever reasons, are unwilling to do so,” and it is legally possible for someone to bring charges against the mayor for admitting to drug use and, most recently, drunk driving, without any solid evidence.

“I have had such charges laid in the past and they've proceeded through the criminal justice system," says Harnett.

Much of the discussion has been that since there is no drug to be tested and it’s unclear where and when the alleged video showing Ford smoking crack cocaine was recorded, it would be difficult for police to charge him.
“Remembering that a circumstantial case is enough in certain circumstances to get a conviction, the onus is on the prosecution to prove the offence is beyond a reasonable doubt,” says Harnett. “If a judge were to review the mayor’s confession that he consumed a prohibited substance during a certain period within the jurisdiction of the court, and was persuaded the mayor was telling the truth, I don’t know what other evidence would be required.”

A citizen could bring allegations before a Justice of the Peace and ask that charges be laid, says Harnett. There is a chance the Crown lawyer on the case could step in and stay the charge, as the prosecutor is entitled to have the last word as to whether a private prosecution will go ahead.”

“They have a virtually unreviewable discretion to intervene and withdraw a charge,” says Harnett. “It is common for this to happen because prosecutors are considered the gatekeepers of the criminal justice system and have an interest in ensuring the courts don’t become a battlefield for unproductive grudge matches. Whether that would happen or not is an open question."

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