Law Times - Newsmakers

Dec 2009 Newsmakers

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newsmakers Crown prosecutor loses battle with police Judge rejects sexual assault allegation against Toronto officers BY HEATHER GARDINER D espite long and twisted legal wran- gling over his 2007 arrest, assistant Crown attorney Roger Shallow ultimately lost his court battle with Toronto police officers this year. Shallow's ordeal began in October 2007 when he was arrested and charged with causing a disturbance and assault to resist arrest in Toronto's entertainment district. Police said he appeared to be intoxicated. He was taken to 52 Division and strip-searched. Shallow petitioned a justice of the peace to charge the two officers who arrested him. A year after his arrest, Shallow, who is black, filed an application to the Human Rights Tri- bunal of Ontario that claimed the "demeanor and tone of [the officer] was rude, aggressive, hostile, and uncivil from the outset. I believe her approach and subsequent actions would have been different if . . . I were the same colour as she." He claimed he continued to suffer emo- tionally as a result of the incident. He demanded apologies from the arresting offi- cers and new protocols for strip searches. Jeanine LeRoy, a special prosecutor hired to handle Shallow's case, withdrew the charges against him at the beginning of his trial. In response, former Toronto Police Association president Dave Wilson filed a complaint with the Ministry of the Attorney General about LeRoy's actions. "For Mr. Shallow to make allegations like this, and for Ms. LeRoy to prevent evidence from coming forward in a court where there can be an objective opinion of a judge, just the whole thing creates this horrible impres- sion," Wilson told Law Times. In March, B.C. lawyer Richard Peck took over as special prosecutor, and the charges against the arresting officers were also dropped. But in early July, Shallow returned to court seeking charges against the officers who conducted his strip search. He requested that Superior Court Justice Ian Nordheimer send the matter to provin- cial court based on allegations that justice of the peace David Hunt — who rejected laying charges against the officers in 2008 — had made errors. Donald McLeod, Shallow's lawyer, argued that police acted beyond their legal authority when they conducted an unnecessary strip search, calling it an act of sexual assault. But Crown attorney Patrice Band argued the search was not performed in a sexual nature and that neither officer made a threat or sexual gesture. In his factum, he wrote, ". . . the applicant — an adult in his mid-30s who does not suffer from any disability — seeks to convince this honourable court to interpret the Criminal Code offence of sexual assault so as to include a request for, invitation to, or counselling of sexual touching in circumstances involv- ing an adult complainant and an absence of direct or indirect physical contact or words or gestures amounting to a threat." However, both lawyers did agree on one thing — the request for a publication ban of the names in the case. Band claimed he didn't want to risk tar- nishing the reputations of the officers before Shallow's allegations were proven in court. McLeod wanted to protect Shallow from the "sensitive nature" of his allega- tions. Nordheimer disagreed, arguing that police frequently release the names of those accused before anything is proven in court and that Shallow should be aware of the possibility of having his name published since he is the one who launched the case. In late July, Nordheimer rejected Shal- low's application. "I note that there was no direct touching of the applicant's body by either of the police officers," Nordheimer wrote in his ruling. "The strip search took place in a private room within a police station. While the applicant was ordered to manipulate vari- ous parts of his body, there is no suggestion that either the commands or any gestures that may have accompanied them had any sexual content to them. "Lastly, there is nothing on the evidence that would suggest that the intent of either of the officers in conducting this strip search was for their own sexual gratification." Nordheimer suggested that Shallow take his complaint to the Police Services Board. [] Keeping real estate transactions where they belong – in your office. At Stewart Title, it's how we work that sets us apart.We deal in title insurance and related products, undertaking no part of the transaction that has traditionally fallen to lawyers/notaries. Since our inception into the Canadian market, you will find that we have consistently combined comprehensive coverage with unparalleled support for lawyers/notaries. We are dedicated to streamlining your practice and increasing your revenue through our programs and innovative technology solutions. At Stewart Title, we know it's our relationship with our customers that determines our success. That's why service is the foundation of our business and integrity, the keystone in all our dealings. Call us today at (888) 667-5151 or visit www.stewart.ca. Untitled-2 1 2009 top news & newsmakers 7 11/18/09 8:27:43 AM

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