Rob Ford case at a crossroads: 5 questions

Toronto Mayor Rob Ford proclaimed he had been “cleared” following Thursday’s announcement by the Ontario Provincial Police that their investigation of Ford has been suspended. But although the OPP said the force has no further role to play in its oversight capacity, citing a lack of critical evidence, the Toronto police say this case is far from closed.

“Project Brazen 2 continues,” said Toronto police spokesman Mark Pugash, referring to the surveillance operation targeting Ford and his friend Alexander (Sandro) Lisi.

The unusual public discord between the two police forces raised some eyebrows, however, and a few questions.

“Certainly it sounds like he’s been cleared for now,” says Anthony Moustacalis, president of the Criminal Lawyers Association and a former Crown attorney in Toronto.

“But the Toronto Police Service say they’re continuing the investigation, so one never knows.”

Moustacalis said it appears as if the same evidence, presented to both agencies, is being interpreted differently, and that it’s possible “the OPP disagrees with the theory of the Toronto police force.”

Those kinds of disagreements aren’t unusual. What is rare, according to former Vancouver police chief Kash Heed, is the public nature of this split.

“When these disputes take place, it’s all behind closed doors, behind meeting rooms,” Heed said. “You’ve got to wonder as to why this has become so public?”

That would indicate Ford isn’t quite in the clear yet, said Toronto criminal lawyer Michael Lacy.

There may not be a basis at this point to pursue charges against Ford, he said, but it’s important to consider the larger context of the probe.

“They’ve seized telephone records, obtained an assistance record to obtain documents from Apple in California. What we don’t know is what further avenues of investigation police might be undertaking,” Lacy said. “We don’t know if they’ve done their complete analysis.”

Ford may also be subpoenaed to testify as a witness when Lisi has his hearing in November or December, and could be asked to answer for some of the details unveiled in the police surveillance documents. He will be tested under oath, and could face perjury charges if he doesn't answer truthfully.

Toronto police are adamant the investigation remains open, and expressed some surprise to hear the OPP take another view.

“I have to tell you that we have not been informed that the OPP has withdrawn from this, and the message they put out is rather imprecise in describing what they were doing,” Pugash told CBC News.

Pugash reiterated there has only ever been a single investigation, which continues to be conducted by Toronto police. He noted there are still “avenues” to pursue in the investigation and that until every stone is turned, the investigation will continue.

“The bottom line is no one has come out and said the investigation is at an end,” Lacy said.

“In fact, it’s quite the opposite,” he said, noting that the prosecution of Lisi for extortion and drug trafficking charges will press on, as well as an investigation into “the matter of the crack video.”

“In that sense, if I were in the position of advising Ford, I’d say you can’t take complete comfort in what was announced today,” Lacy said. “All you can take comfort in is the fact there’s no evidence in this point of time to lay charges.”

Heed, who had a 31-year career in law enforcement before retiring as chief of the West Vancouver police in 2009, has another view.

“Unless they get a smoking gun-type witness here that may link mayor Ford with the allegations, the investigation is virtually at a standstill and it won’t go any further,” he said.

Heed added that the OPP’s statement about stepping away from the investigation is the kind of language police often use when a murder investigation has gone cold, he said.

“So the file, in my opinion … as it relates to the current circumstances with mayor Ford, is over with.”

Critical new evidence would have to be introduced, said Moustacalis.

“The problem with criminal law is, to prove what somebody’s doing, you have to say what they’re doing, see what they’re doing, or have it expressed in their writing,” he said. Right now, police are only able to try to piece together circumstances to determine what might have happened to find incriminating evidence.

“Now they’re trying to go back in time and recreate an event that they weren’t able to observe or monitor,” Moustacalis said.

If new evidence comes forward, Lacy added, “there is no statute of limitations for an extortion charge that would stop the police from acting on that new information in the future.”

For the time being, evidence only shows extorted threats allegedly made by Lisi to obtain a video, but no tie to any other party, including the mayor, Lacy explained.

If there was some text message, email or recorded voice mail that might lead police to believe that Lisi was acting as an agent on behalf of someone else to retrieve the video, police may have been in a stronger position to lay charges against someone else, Lacy said.

“From the OPP perspective, if they were going to include reasonable or probable grounds to lay charges, they wanted to see some evidentiary link between whatever Lisi was alleged to have done and Rob Ford directly, rather than just some speculative inference,” he said.

Heed believes it will be, but not in the immediate future.

“If that video is currently required in one of the ongoing criminal proceedings, which there are several attached to this particular project, it will be shown in court, and it will eventually become public,” he said.

“I’m not saying it will be in the immediate future, but in my opinion the public will be able to view it.”