Law Times

May 25, 2015

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Lawyer charged with perjury 'loves the law': colleague By yamri Taddese Law Times A As lawyer Leora Shem- esh prepares to defend herself against charges of perjury and obstruc- tion of justice, other defence coun- sel say they've also been dealing with issues surrounding the exis- tence — or not — of a video that surfaced in a drug case she acted in. Last week, Peel police charged lawyer Shemesh with perjury and obstruction of justice. None of the allegations have been proven in court. Peel Regional Police Staff Sgt. Dan Richardson confirmed police had served Shemesh with a summons last week but declined to comment on what led to the charges. "I don't reveal anything that's in court, so I don't come out with any evidence," says Richardson. According to the Toronto Star, Shemesh had been acting in a drug matter in 2013 in which Peel police Const. Ian Dann was a wit- ness. The Star reported that the Crown dropped the matter in that case after Shemesh told Crown at- torney Robert Johnston about al- leged misconduct involving Dann. It's not clear exactly what Sh- emesh told Johnston. But after the Crown backed away from the case, word got around the criminal law bar about the existence of a "nanny cam" video depicting alleged miscon- duct by the officer, sources say. Previously, Shemesh had de- fended a client in R. v. Dinh, a 2011 drug-trafficking case that resulted in a finding of perjury against Dann and several other Peel police officers. Richardson says Dann is facing a disciplinary proceeding by the police force but wouldn't specify the cause of the investigation. "Constable Dann is subject to a formal disciplinary proceeding that has been adjourned to a con- ference call on Sept. 10, 2015, at 8:30 a.m. as the officer is currently on an approved leave of absence," Richardson said in an e-mail to Law Times. "We will not comment further on an ongoing hearing process." Amid questions about the ex- istence of a video showing alleged misconduct by Dann, several criminal lawyers sought to obtain it for their own matters involving the same officer. One of those law- yers was David Rose, a former law associate of Shemesh's who's now a judge in Newmarket, Ont. In 2014, Rose subpoenaed Sh- emesh to court before Superior Court Justice Bruce Durno to talk about the existence of the video, says Joseph Neuberger, who took over that file once Rose joined the bench. "My understanding is that Da- vid Rose had issued a subpoena for Leora for evidence that she may or may not have been in possession of," says Neuberger. "During that process, we un- derstand that she was required to Emond_LT_May25_15.indd 1 2015-05-19 2:55 PM Lawyers predict more overcrowding after St-Cloud SCC bail ruling raises significant concerns among the defence bar By yamri Taddese Law Times O ntario's problem of over- crowded prisons is about to get a lot worse, criminal lawyers are warning in the wake of the Supreme Court of Canada's decision in R. v. St-Cloud. "The Supreme Court just made it much more difficult for accused persons to get bail in Canada," says Nader Hasan, a part- ner at Ruby Shiller Chan Hasan. "One thing I was surprised by in this case was the Supreme Court's unwilling- ness to address the major elephant in the room, which is our pretrial detention fa- cilities are already vastly overcrowded [and] disadvantaged minorities are gross- ly overrepresented in these pretrial deten- tion facilities. "That problem is only going to get ex- acerbated now if more people are denied bail." In St-Cloud, the top court restored an order for pretrial detention in the case of a man who was one of several people charged with beating up a Montreal bus driver. The court said the man's pretrial custody was justifiable under the rarely ap- plied tertiary ground for refusing bail. The third ground, that the public would lose confidence in the administration of justice if the court granted bail, was under- stood as a "vague" provision that should ap- ply in cases dealing with the most heinous of crimes, according to Hasan. Courts often focus on the first ground for denying bail, which is the possibility that the defendant wouldn't attend the trial, and the second ground that considers the person's likelihood of reoffending and posing a threat to the public, says Hasan. The top court's latest decision means a person could end up in custody even if these first two grounds aren't met, says Toronto lawyer Peter Rosenthal. "Based on this vague notion of a member of the public losing confidence in the admin- istration of justice, a person who would [oth- erwise] be released is held in custody," says Rosenthal. Rosenthal suggests decisions denying bail should in fact be more easily reviewable by higher courts given that it's justices of the peace who make such calls based on hurried applications. Prior to St-Cloud, the bar for a detention under the tertiary ground was quite high, ac- cording to Hasan. Judges across the country would typically apply the tertiary ground "only in exceptional circumstances," he says. "Even in murder cases, the tertiary ground wouldn't necessarily be available. Generally, for the Crown to rely on the Labour Law reform Recent amendments fall short P7 FOCUS ON Running Your Practice P8 The decision opens the door for the Crown to seek detention based on the tertiary ground 'in a large swath of cases' where it previously couldn't, says Nader Hasan. Photo: Robin Kuniski See Charges, page 5 See Getting, page 5 PM #40762529 TORONTO | BARRIE | HAMILTON | KITCHENER 1-866-685-3311 | mcleishorlando.com cLeish Orlando_LT_Jan_20_14.indd 1 14-01-15 3:15 PM $5.00 • Vol. 26, No. 17 May 25, 2015 Follow LAW TIMES on www.twitter.com/lawtimes L AW TIMES FamiLy rULe ChaNgeS Summary judgment among key provisions P4

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