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Legal Analysis: Can Rob Ford Sue Former Staffers Over What They Told Police?

Rob Ford's said he's pursuing legal action against Mark Towhey, Isaac Ransom, and George Christopoulos. Does he have any chance of success?

Mark Towhey (left) with Rob Ford during the casino debate at City Hall.

Can Rob Ford sue his former staffers—as he has just said he will—for comments they made to police during the course of the investigation into the crack video? The answer is surprisingly complex.

Rob Ford can certainly sue anybody he likes for defamation. We are of course talking about whether or not he can win these lawsuits. The short answer is that he probably can’t.

Libel and defamation law—which we have discussed here before in other circumstances (that of course involved Rob Ford)—provides for several possible defenses against libel. The first and most important of these is the defense of truth, which is to say that if somebody says something true, they can’t be sued for defamation. It appears likely (although not certain) that the defense of truth would prove enough to defeat any defamation suit Rob Ford might choose to bring; many of the things his staffers told the police were, after all, corroborated by independent police investigation.

The defense of qualified privilege, which protects individuals from defamation claims when they make statements in good faith in matters in which they have a particular concern, is also potentially available to protect the staffers. Qualified privilege is usually applied to professional communications—for example, a former employer who gives a bad reference can’t be sued for defamation—but it can be extended for situations such as this one. The test is whether a court could reasonably consider a person’s statement or communication to have been a duty. Rob Ford’s former staffers should be able to make this defense work fairly easily.

However, more important than those defenses in this situation is the defense of absolute privilege. A lot of people seem to be confused about whether or not Rob Ford can sue witnesses for making defamatory statements to the police at all. This is worth clearing up.

A bit about absolute privilege: there are certain contexts in which, for public policy reasons, libel lawsuits must be impossible. One of the most obvious areas where this must be the case is the justice system, and particularly the criminal justice system. If you can be sued for defamation in the event that you are a witness against an individual in a criminal or civil proceeding and the individual wins their case (implying that your testimony was false), this would make people less willing to be witnesses in court proceedings, and that would harm the justice system. Hence, you can’t sue somebody for something they say during a court proceeding. Simple, right?

Well, no. The problem with absolute privilege is that there is a bit of a question as to where it begins. In Rajkhowa v. Watson, a Nova Scotia case from 1998, Justice Hood explained where absolute privilege begins and ends. (Note: an “Information” is the document police send to the Crown, summarizing the evidence they are using to support the laying of a charge.)

There must be direct connection between the making of the statement and the proceedings. A statement in court is clearly protected, as is the laying of an Information by the police. These are part of the court proceedings or a necessary step in the court proceedings.

There is a continuum. It starts at Step One with the investigation by an investigating body; at Step Two that body sends information to the police; at Step Three, the police investigate; at Step Four, if warranted, the police lay an Information; at Step Five, court proceedings occur.

Clearly at Step One there is no absolute privilege. Just as clearly, at Step Five, there is absolute privilege. Step Four is part of the judicial proceedings or a necessary step in them and is subject to absolute privilege.

It is Steps Two and Three that are problematic. Even if Step Three is protected, Step Two may not be. If Step Three is not protected, then Step Two certainly cannot be.

Later court decisions about the nature of absolute privilege (for example Teskey v. Toronto Transit Commission, a 2003 Ontario case) have generally approved of Justice Hood’s reasoning in Rajkhowa, although they have noted that Justice Hood’s continuum can be a little problematic in certain situations.

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).

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 is possible for Rob Ford to sue his staffers for defamation. It’s just not very likely that he will succeed.

CORRECTION: November 14, 2013, 3:45 PM This post originally incorrectly characterized the nature of a “qualified privilege” defense. It’s the court that must consider a communication to have been a “duty,” not the accused. Also incorrectly characterized was the defense of “truth.” It’s not sufficient for the accused to believe that a communication is true; the communication must actually be true.

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