Law Times

www.lawtimesnews.com Page 2 February 11/18, 2008 / Law Times NEWS Clear signal sent about disclosure obligations application" in this case. The delay here is not the direct result of any lack of institutional resources. The Morin guidelines were designed to make an allowance for administra- tive delay, not for delay caused by the parties or for other reasons," he wrote. While there was a large volume of evidence, Nordheimer rejected the Crown's argument the case was especially complex. The charges against the offi- cers stemmed from five separate incidents with allegations of theft, assault, obstruction of justice, and perjury, relating to arrests of sus- pected drug dealers and seizures of narcotics between 1997 and 2002. Apart from one conspiracy charge, said Nordheimer, "Most if not all of the other counts on the indictment reflect relatively straightforward accusations that are commonly heard in this court; for example, counts of assault and theft." The preliminary hearing began two years after the officers were charged. By that time, the prosecu- tion had provided the defence with just over 60 per cent of the 330,000 pages it eventually disclosed. The first Toronto police inter- nal investigation of the officers was launched in 1998. It led to relative- ly minor charges that were stayed when a special Toronto police task force was created in 2001, headed by RCMP Assistant Commission- er John Neily. In March 2003, Neily wrote to the Crown and said the task force had reasonable and probable grounds that 173 criminal offences had been committed by nine of- ficers. "My task force is nearly ready to proceed [with charges]," wrote Neily, asking the Crown to begin to have the necessary disclosure ready upon arrest. "We cannot continue to wait for months and months for action on your part," Neily said. The letter from Neily was described by Nordheimer as a "stinging condemnation" of the approach that had been taken up to that point by the Crown. The judge said he could find no evi- dence the Crown even responded to Neily's letter. Nordheimer stressed that there is a greater obligation on the Crown for prompt disclosure when there has been a lengthy pre-charge in- vestigation. "The Crown has available to it enormous resources," wrote Nor- dheimer. "Once the investigators decided that they were going to lay certain charges against certain ac- cused," he said, "there is no reason why someone could not have been tasked with beginning the prepa- ration of the disclosure relating to those charges." Toronto defence lawyer Heather McArthur says the ruling sends a clear signal to the Crown about its disclosure obligations in large-scale prosecutions. "Once it is clear during an in- vestigation that there are going to be charges, the Crown needs to start to get organized. The pros- ecution can't sit on its hands until the charges are laid," says McAr- thur, who was not involved in the Schertzer proceeding. In her experience, the timeliness of disclosure has depended on the individual Crown, says McArthur. "Sometimes it is quick and remark- ably organized. But there does not appear to be a uniform under- standing of disclosure obligations," she notes. In his ruling, Nordheimer also rejected an argument that Schertzer should bear responsibility for some of the delay because his former lawyer brought an unsuccessful motion to challenge a disclosure- related undertaking required by the Crown. The Crown could have relied on the normal obligations under the common law and the Rules of Professional Conduct, the judge observed. "Given the admittedly unusual nature of the request, I believe that the time reasonably necessary for a determination of the legitimacy of that request is more fairly treated as part of the inherent time require- ments of the case," said Nord- heimer. The Crown has until March 2 to file a notice of appeal of the stay ruling. Dye & Durham is an official Service Provider under contract with the Ministry of Government Services. For information on DD Direct Access contact Kim Hines For all your Search & Registration Services Dye & Durham offers DD Direct (Do-it-yourself) and Search Access (Staff Assisted) service. Connecting you to over 40 Search & Registration services. Your ONE-Stop Service Provider. 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"He may not want to review it with the judge," says Waldman. "When you're a de- fence counsel, you may have a question you want to ask your client and, depending on the answer, it may or may not be helpful. You're not going to want to get permission to ask a question and then get an answer you don't like and then be put in a posi- tion where you've asked a question that isn't helpful — and you have to review it." Waldman believes it is unfortunate the government chose the U.K. system of spe- cial advocates rather than an examination of secret evidence by the Canadian Security Intelligence Review Committee. He and Craig Forcese, associate profes- sor of law at the University of Ottawa, last year published an exhaustive analysis of the special advocate system for security cases in the U.K., interviewing barristers who had become special advocates, and found shortcomings, including difficulties advo- cates faced getting full disclosure from the government. Despite his concerns, and the apparent difficulty the Justice Department expe- rienced recruiting potential advocates in Canada, Waldman urges barristers to take up the challenge. "I think that as officers of the court, as people who believe in the rule of law, and given that Parliament has chosen to adopt the system, that we should try at least to see if it's workable before we condemn it," he says. "I for one would not criticize indi- viduals who became special advocates." Ottawa defence lawyer Norm Boxall agrees, telling Law Times, "If you refuse to participate in it, or if lawyers with experi- ence and skill refuse to participate in it, then you've denied even this protection." Boxall, with Bayne Sellar Boxall, says the advocate, though sworn to secrecy, will still offer a role for counsel who are not ob- ligated to the government. "It would at least have somebody inde- pendent, other than the government, who would be able to stand up in front of a judge and say, 'Your Honour, I'm not able to communicate the information with the client, but you might notice this informa- tion is hearsay, that this information is from a person who has been shown to be reliable elsewhere.' At least it wouldn't be just the government doing it." Waldman says an independent review of evidence by the Security Intelligence Re- view Committee, which would scrutinize it without passing details on to counsel for the accused, would be preferable. "This has been happening for 25 years and there has never been a case where there's been any allegations of anyone at SIRC do- ing anything inappropriate," he said. Continued from page 1 LT Continued from page 1 LT Dr. Valentin Shulman: Helping legal professionals to overcome depression and stress since 1989. Individual sessions, telephone coaching. Call (416) 766-6185. 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