Law Times

Law Times • January 17, 2011 Police using BLG Continued from page 1 regular budget. Th e Special Investigations Unit also kept its probe of six allegations of police brutality in-house. Th e new Offi ce of the Independent Police Review Director has hired ad- ditional investigators in order to meet the demands of its systemic review of G20 policing, but spokeswoman Allison Hawkins says it's diffi cult to isolate the cost of that in its overall budget. In addition to the police services board proceedings, the Toronto Police Service is also conducting its own internal review re- lated to the G20, although spokeswoman Meaghan Gray says it's all within the nor- mal budget. Th e service has, however, hired Borden Ladner Gervais LLP to represent it in various G20-related civil suits, but Gray notes an insurer covers the legal fees. Seeking to put a signifi cantly larger dent into public coff ers than any of the multitude of G20 reviews and investigations are two class action lawsuits launched within weeks of one another in the summer. But before the litigants take on the po- lice, they may have to face off against one another. Murray Klippenstein, the lawyer on a $45-million class action against To- ronto police and the RCMP, says it's like- ly only one of the matters will proceed. Th e members of his class include about 800 people arrested and released without charge during the G20. David Midanik is the lawyer for a $115-million class action that represents all of those arrested — estimated at about 1,170 people — during the G20 week- end. He says it's important to include those who were charged. "Most of the people who were charged were at the forefront of exercising democrat- ic rights, so in terms of preserving civil liber- ties and democratic rights, it's essential those people get representation," Midanik says. Klippenstein, meanwhile, says he's considering expanding his class to include those who faced charges that were later withdrawn or stayed. Initially, Midanik's matter also included business owners who suff ered property damage during the summit. Th at's no longer the case due to a fear it made the class too broad for certifi cation. Both lawyers are preparing applications for certifi cation, but neither ex- pects a court hearing for months. Adam Goodman acted for several of those charged by act- ing at bail hearings on a pro bono basis. Although most of them had their charges dropped at the fi rst appearance in court, one of his clients is facing a trial in April. Goodman says he's look- ing forward to hearing testimo- ny from police when trials get underway in courtrooms across the city next month. "Th ere's been mostly silence from the police offi cers, but at trial, they'll be on the stand and under oath. Th ere might be some who don't like what hap- pened but feel they have to be quiet right now." According to the most recent statistics released by the Ministry of the Attorney General, of the 320 people charged with crimi- nal off ences in the aftermath of the G20, just 86 are still be- fore the courts. Around 60 had charges diverted, pleaded guilty or were subjects of peace bonds. Just over half of those charged had their charges stayed or with- drawn, the bulk of those on the Looseleaf • $320 • Subscription updates invoiced as issued (1-2/yr) P/C 0268030000 • ISSN 1920-695X fi rst day of mass court appearances. In several cases, the withdrawal of charges led to a switch of focus to civil suits from criminal matters. Clayton Ruby, for example, is pre- paring a civil suit on behalf of Charles Veitch, a British satirist charged under the act for failing to identify himself within fi ve metres of the security fence. Ruby also defended him on the charges that were later withdrawn. Another client, Natalie Gray, has sued Toronto police after they allegedly hit her with rubber bullets. She was charged with obstructing a police offi cer, but those charg- es were later withdrawn. Ruby is also representing Dorian Barton, who claims offi cers assaulted him during the G20 weekend. Th e SIU closed an in- vestigation into his case late last year after concluding there wasn't enough evidence to lay charges, but new photos of the alleged assault have since emerged. "Th e SIU is a fake agency," Ruby says. "It's a fraud and a sham. Th ey're not inter- ested in investigating eff ectively." In Ruby's view, the raft of G20 investiga- tions is ineff ective because each is too nar- rowly focused. "Th ere's no sign that enough pressure is going to be exerted to bring about a royal commission, and I can't imagine any- thing less will do. So we're left with the civil law system, which unfortunately only results in damages and publicity." Des Rosiers says she's not surprised at the G20's staying power in the public con- sciousness and expects it to remain a big fi le for the CCLA well into the future. "What we have seen from people on the ground and from what our monitors saw presents a signifi cant violation of civil rights that weekend. Our view is that the story has to be told, and accountability, no matter how long and how diffi cult it will be, needs to be brought to bear be- cause what happened was unacceptable. It takes some time for processes of account- ability to unfold, so I think the story will be told for quite some time yet." LT NEWS PAGE 5 Ruling offers recourse Continued from page 1 (that is from November 2009 to the time of trial), Mr. Daboll was allowed to practice law while being at that time on criminal probation and facing a further charge relating to 'sex/personal relations clients wife.'" Rejecting DeMarco's argument that the law society fi ndings could reasonably be considered convictions, Lococo also found that his claim on his web site that Daboll had been convicted of "more than one crime" defeated the truth defence. Walter Osborn, who co-founded the National Coalition for Law Societies Re- form with DeMarco, was also named as a defendant. Lococo, however, noted DeMarco was the "driving force" behind both web sites. Lococo found the infl ammatory nature of the language used in the newspaper ads and online constituted evidence of malice and noted "the most obvious indicia of malice in this case is the timing of the publication" right after Daboll collected his outstanding costs order against DeMarco. DeMarco knew about Daboll's past well before November 2008, Lococo said. As well as the $50,000 in damages, Lococo also issued a permanent injunction barring the continued publication of defamatory statements about Daboll. "I'm not pleased with the decision," DeMarco tells Law Times, noting he plans to appeal the ruling. He has also launched a negligence claim against Daboll. His dirtylawyer.com web site states that its aim is "to publicly hold accountable the lawyers and their self-protecting, self-governing body for acts and actions that are 'above the law,'" a mission DeMarco says he was fulfi lling when he brought Daboll's past into public view. According to Lococo's decision, DeMarco, who represented himself, made nu- merous references at trial to occasions dating back as far as the 1970s when he reported lawyers to the law society for negligence. Lococo also noted that many of DeMarco's submissions dealt with Daboll's representation in his matrimonial case. "In my view, the documents were referred to by Mr. DeMarco in furtherance of his apparent determination to re-litigate the issues that have already been dealt with in the matrimonial litigation and on the assessment of Mr. Daboll's account or to 'pre-litigate' issues more properly dealt with in Mr. DeMarco's separate negli- gence action against Mr. Daboll," Lococo wrote. DeMarco, meanwhile, insists Daboll never told him about his disciplinary re- cord. But Daboll says he has never tried to hide his troubled past, the result of what he calls a "diffi cult patch in my life." "Maybe I can fi nally put that behind me," he says. "At least it won't be the only thing people fi nd out about me rather than the fact I've been running a pretty suc- cessful litigation practice with thousands of satisfi ed clients." Daboll notes it upset him to search his name online knowing DeMarco's web site would fi ll the fi rst page of results. He lost clients as a result and says those dis- satisfi ed with his family law practice would refuse to pay after seeing the contents. "It got to the point where we would have to address that issue on virtually ev- ery assessment hearing," Daboll says. "I think the decision is a good solid starting point to off er the legal profession the same sort of basic protection that everybody else in society would reasonably expect from this kind of vendetta. It means law- yers who are otherwise good counsel and get mixed up with a bad client can have some recourse." LT THE LAW OF CLIMATE CHANGE IN CANADA Editor: Dennis E. 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