The Law Society of Upper Canada is seeking an order allowing it to seize RCMP wiretap transcripts and recordings as part of a re-opened professional misconduct investigation of former assistant Crown attorney Calvin Barry.The law society wants the information - an alleged conversation between Barry and an undercover police officer recorded without Barry’s knowledge - as part of its probe into allegations the wiretaps link him to a money-laundering scheme, and record him making an unprofessional remark. The investigation
re-opened in September 2006.
During a hearing last week, Ontario Superior Court Justice Paul Rivard decided that Barry can make submissions to the court concerning whether the law society should be allowed to seize the information, when it reconvenes on Jan. 14, 2008.
The information sought under s. 49.10 of the Law Society Act relates to an undercover RCMP investigation of Barry and others that led to the money laundering and theft conviction last year of Peter Shoniker, a former Crown and criminal defence lawyer. Shoniker was sentenced to 15 months.
Police never charged Barry. None of the allegations raised in the law society’s application have been proven in court.
After considering legal arguments from RCMP lawyer Glynis Evans and law society lawyer Thomas Curry, Rivard ordered the law society to serve Barry with a notice of application.
Rivard was selected for the hearing because he is not from Toronto and has had no involvement with Barry or Shoniker.
Rivard told the court on Wednesday that he would not want to be seen to be interfering with the important duties of the law society.
But he also said that whether to disclose the intercepted private communications raises a privacy interest, and that he can’t deal with that or balance the privacy interests of Barry with the public interests of the law society without first considering what Barry might have to say.
The RCMP is opposing the application on privacy grounds, and Evans argued Barry should be given notice of the application because the RCMP is not in a position to address his interests.
But Curry argued the order may be made under the Law Society Act without giving notice to anyone. He said the order may authorize the search and seizure of something even if it is privileged or confidential, and added that statutory protections state the law society shall not disclose the information obtained as a result of a search or seizure except to disclose the information to the individual or his or her counsel.
The law society is not only looking into Barry’s “possible involvement” in the money-laundering scheme, but is now also investigating an allegation that he made “statements of an unprofessional nature” while still employed as an assistant Crown attorney, says the application filed with the court.
“The wiretap transcripts and audio files will provide information of importance to the investigation by providing some clarification as to Mr. Barry’s alleged involvement in a money laundering scheme, and by potentially determining whether Mr. Barry made remarks of an unprofessional nature,” says law society investigator Alon Ben-Chorin in an affidavit filed with the Ontario Superior Court of Justice on Oct. 4.
According to the affidavit, the law society began its professional misconduct investigation of Barry in November 2004. It closed the file after five months, but the investigation was subject to being re-opened if further information was obtained.
After Shoniker pleaded guilty on Aug. 18, 2006 to one count of laundering the proceeds of crime, and one count of stealing from an undercover officer, the Toronto Star published two articles that quoted from an alleged May 2, 2003 conversation between Barry and an undercover officer pretending to look for a lawyer to help move stolen pension fund money, says the affidavit. The next day, Barry allegedly called the officer and left a message, referring him to Shoniker, it says.
The second article quotes from another part of Barry’s conversation with the undercover officer and others, and Barry allegedly describes a case involving three National Basketball Association players charged with assault, says the affidavit using the newspaper story as its source. It’s alleged that as he relates the story, he is heard joking that the players would likely just have to sign basketballs in Regent Park as punishment.
“After the three-hour clinic is done, we give away all the signed basketballs and sign autographs and there’s 5,000 black kids jumping up and down like Planet of the Apes,” he allegedly says.
Barry did not return a call from Law Times seeking comment. In a recent National Post story, it is said he has denied making those statements.
The affadavit explains that as a result of the newspaper articles, the law society informed Barry that it was reopening its existing investigation, and also investigating an allegation that he made an unprofessional remark.
The law society sought and obtained an order allowing it to seize the Shoniker Crown brief - with the exception of wiretap transcripts and audio files - from Rivard on April 27, 2007. The RCMP did not oppose that application.
The law society is seeking a second order allowing it to seize all transcripts and audio files in the Crown brief pertaining to the police investigation that resulted in the Shoniker prosecution, that relate or refer to Barry in any way, and that were obtained pursuant to one-party consent authorizations under s. 184.2 of the Criminal Code.
Barry now works as a defence lawyer in Toronto. According to the affidavit, he has retained counsel for the law society investigations.