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PAGE 2 NEWS Like 'radioactive material' Continued from page 1 "In view of the highly unusual circumstances that this issue presents, I am going to make a novel request," CLA president Frank Addario wrote in the letter to Ayre. "I ask that you pre- pare full disclosure of all information in the ministry's possession relating to any prior jury trials in this province in which this practice is known to have occurred," the letter goes on. "Th e request for disclosure includes the names of the criminal trials in which this practice is known to have occurred, the names and relevant notes of the police offi cers and Crown offi cials who were directly involved in or who had knowledge of the practice in those cases, and the nature of the information trans- mitted by Crown counsel in those cases." Toronto defence lawyer Adam Boni, a director of the association who is also leading the informa- tion-gathering initiative, says determining the ex- tent of jury vetting is only the fi rst step. "In terms of properly unpeeling this onion, we have a long process to go through." Locations where it has been revealed that Crown attorneys obtained information about prospective jurors from police now also include Toronto and Th under Bay. Two lawyers in Windsor representing the two accused in the murder trial that was suspended after the discovery of undisclosed Crown jury vet- ting have asked for a stay of the charges, primarily because of the interference with jury selection. One of the lawyers, Kirk Munroe, tells Law Times eff orts to obtain more information about the extent of vetting jurors through the Windsor police department have failed. Superior Court Justice Bruce Th omas quashed subpoenas that would have forced Kingston po- lice chief Gary Smith to explain statements he made to the Windsor Star about previous instanc- es of co-operation with prosecutors. Th omas also shot down an attempt to dis- cover whether two diff erent Crown prosecutors appointed for the new trial in the case had taken part in secret jury vetting in the past. "Th ese are public servants; how come they're not telling us what they're doing?" Munroe says. "If their people have engaged in misconduct, you don't think the public has the right to know what misconduct they've engaged in. "It's been found by every court that's dealt with it, that's misconduct. So why don't you tell us, has your offi ce been engaged in it, was it systematic, was it just a few bad apples? Tell us about it." Th e other defence counsel in the case, Greg Goulin, says neither defence nor prosecution lawyers should have access to some of the infor- mation Kingston police provided — including references to a young off ender record. "It's infor- mation, in and of itself, that no one should pos- sess except for specifi c purposes," says Goulin. "It's like radioactive material." LT JuLy 13/20, 2009 • Law Times 'High hurdle' for publication ban not met Continued from page 1 would be released from custody. He said the offi cers' decision to conduct a strip search was "far afi eld" of what was necessary to ensure offi cers' safety. But lawyer Patrice Band, act- ing for the Crown on the matter, argued that Shallow's allegations of sexual assault faces "insur- mountable hurdles." He said the circumstances of the inci- dent were "quite sterile" — the offi cers wore gloves, the mood in the room at the time of the search was calm, and the door was open. He said those factors suggest the search was not con- ducted in a sexual nature. Further, he said neither offi cer made a threat or gesture neces- sary for a sexual assault fi nding. Band suggested in his fac- tum that, "Pared down to its es- sentials, the applicant's request is that this honourable court interpret, or mandate the inter- pretation of, the Criminal Code off ence of sexual assault so as to read-in certain elements of the off ences of sexual touching, sexual exploitation, or sexual exploitation of a person with a disability: viz. the elements of a young or disabled complainant and the existence of a power im- balance as between the accused and the young complainant." He later wrote, "Or, put an- other way, the applicant — an adult in his mid-30s who does not suff er from any disability — seeks to convince this honour- able court to interpret the Crimi- nal Code off ence of sexual assault so as to include a request for, invitation to, or counselling of sexual touching in circumstances involving an adult complainant and an absence of direct or indi- rect physical contact or words or gestures amounting to a threat." In court, Band suggested that if McLeod's arguments are accepted, any unlawful police strip search would be consid- ered a sexual assault. McLeod disagreed. "Th is is not the creation of a new crimi- nal off ence — it is a criminal of- fence," he told the court, adding that there exists at least prima facie evidence of sexual assault in the case. Nordheimer reserved his de- cision on the mandamus order. Meanwhile, McLeod and Band had requested bans on the publication of names in the case. Band argued that there is a Starting from $62.50 per month More value for your money! 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But Nordheimer seemed to disagree. He noted that the po- lice often release the name of accused persons through press conferences or releases before their allegations have been proven. He added that there are various instances in which in- dividuals face unproven allega- tions in the public domain. "Th at's the world in which we live," said Nordheimer. McLeod based his request for withholding Shallow's name from the record on the "sensitive nature" of the allegations he has made. But Nordheimer noted that the matter was before the court at Shallow's request. He said it's vital that individuals who initi- ate lawsuits consider the pos- sibility that the matter may be published. Nordheimer ruled that the "high hurdle" required for a publication ban on the names had not been met. Th e offi cers are identifi ed in court documents only as "To- ronto Police Offi cers Lyon and Harnish," with no fi rst names. Shallow is also pursuing the 1.800.263.2037 Canada Law Book is a Division of The Cartwright Group Ltd. www.lawtimesnews.com Bestcase-reduce costs (LT 1-2x4).indd 1 6/10/09 10:43:32 AM LT0715 matter at the Human Rights Tribunal of Ontario. He fi led an application in October 2008 that alleges his treatment from the offi cers during his arrest were aff ected by his skin colour. LT