Law Times

Law Times • May 25, 2015 Page 5 www.lawtimesnews.com take the stand and provide viva voce evidence in front of Jus- tice Durno." Criminal lawyer Rob Christie says that about a year ago, he was representing a client in a drug case when the federal Crown on the record told him about the existence of "nanny cam" footage depicting alleged misconduct by Dann. "The Crown raised the issue with me," says Christie. "The way it was related to me was that this video was in existence," he adds, noting he was told Shemesh had the video. Christie says his case was adjourned to figure out if the video did in fact exist. Gary Grill, who's representing Shemesh along with To- ronto lawyer Marie Henein, says he won't comment about the allegations against his client. "We're not really commenting to the media at this point except to say, of course, that the charges are going to be chal- lenged and fought vigorously and that Ms. Shemesh is an excellent lawyer with an excellent reputation," says Grill, a certified specialist in criminal law. "I can't comment on the allegations at this point. It's too early in the proceedings," he adds. Criminal defence lawyer Paul Burstein says Shemesh "loves the law." "She loves to help people and she lives to protect her cli- ents from unfair and overzealous policing. She would never do anything knowing that it would jeopardize that career," he says. Neuberger, meanwhile, says a force other than Peel po- lice should have investigated the matter. "In a case like this, criminal charges against the lawyer is quite extraordinary," he says. "But what's important to maintain the integrity of the in- vestigation, in my opinion, is an outside police service should have conducted the investigation rather than the same inter- nal affairs unit that's looking into the officer's conduct," says Neuberger. "That lack of independence is a concern in a case like this and would be a fertile ground for the defence." LT NEWS Whether we're advising a multi-million dollar enterprise or an entrepreneur who aspires to be one, our experts work closely with you to develop optimal solutions that meet all your audit, tax and advisory needs. With offices from coast to coast, trust the professionals at Collins Barrow for the objective, actionable advice you need to maximize opportunities in virtually every area of your operations. Big deals begin with Collins Barrow. Seal the deal Invest in clarity Untitled-3 1 2015-05-21 3:45 PM Charges 'extraordinary' Continued from page 1 tertiary ground, it had to be murder plus, so it had to be homicide plus some other aggravating factor that would lead the court to deny bail on that basis." That understanding was a way to limit a provision that had the potential to be overly broad, according to Hasan, who says the top court's recent decision es- sentially allows for such an expansive interpretation. "With all due respect for the reviewing judge, I be- lieve he erred in stating that s. 515(10) (c) Cr.C. must be interpreted narrowly and applied only in rare cases," wrote Supreme Court Justice Richard Wagner, who wrote on behalf of a unanimous bench in the May 15 decision. Wagner also found the lower court judge who had overturned an original decision to deny bail didn't appreciate the seriousness of the crime. "I believe that a reasonable member of the public who, although not a legal expert, is nonetheless properly informed about the philosophy underlying the legislative pro- visions, Charter values and the actual circumstances of the case would not understand why the respondent should not remain in custody pending his trial," wrote Wagner. "Such members of the public are not people who would allow themselves to be guided by their emo- tions and to be swayed by the mob or by incomplete or distorted information. In the face of such a brutal attack that was committed by several people in the middle of the night against a bus driver, a person who was serving the community, and that had serious consequences for the victim's health and integrity and was captured on a videotape that left no doubt as to the respondent's active participation in the assault, I believe that the confidence in our justice system of a reasonable member of our society would be un- dermined if the interim detention of the respondent were not ordered." Hasan says 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. The decision follows concerns from researchers at the John Howard Society who found Ontario has "a bail problem." In 2013, the researchers released a report after looking at 337 case files of clients partici- pating in the bail verification and supervision pro- gram. They found that despite "dramatically declin- ing crime rates," getting a bail is harder now than it was a decade ago. A Canadian Civil Liberties Association report also highlighted how onerous bail requirements were contributing to overcrowding in pretrial detention centres. "The Supreme Court's decision in St-Cloud does not address many of these practical realities that observers on the ground have been calling attention to," says Laura Berger, an interim director of the pub- lic safety program at the CCLA, which was an inter- vener in the case. "The Supreme Court's decision does not ref lect that on the ground, individuals are being denied bail inappropriately or are being released on bail in inap- propriate ways," she adds. Despite the concerns, the Supreme Court pointed out that unlawful detention also results in a loss of public confidence in the administration of justice. In the ruling, the court outlined the principles to con- sider under the tertiary ground — which requires looking at the gravity of the crime, the strength of the prosecution's case, the circumstances around the commission of the crime, and the potential length of imprisonment — but rejected the idea that automatic detention follows even if all of them apply. "At the end of this balancing exercise, the ultimate question to be asked by the court is whether deten- tion is necessary to maintain confidence in the ad- ministration of justice. Thus, the court must not order detention auto- matically even where the four listed circumstances support such a result," wrote Wagner. LT getting bail more difficult Continued from page 1

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