Paul Robertson, who is presiding over what is expected to be a six-month-long
preliminary hearing, ruled in late September that both Crown and defence
lawyers must submit to the wanding and a search of legal materials. Police have
been stationed inside and outside the courthouse, and the defendants are
escorted to the courtroom by armed officers.
decision was made after security concerns were raised, which cannot be reported
because of a publication ban. The preliminary hearing has been adjourned as a
result of a certiorari motion.
Calarco, who was retained by four of the defence lawyers, argued before O'Driscoll
at an Oct. 26 hearing that the "special status" of lawyers should continue. If
there are any legitimate security concerns that come to the attention of
defence counsel, Calarco said they would inform police as part of the rules of
added that lawyers are not
searched or required to walk
though metal detectors in courtrooms in the Greater Toronto Area, including the
Court of Appeal, if valid identification is produced.
Project Pathfinder charges involve provincial and federal prosecutors. Justice
Department Crown attorney Nick Devlin argued that the searches are legitimate
as a result of the provisions of the provincial Public Works Protection Act.
decision was described as an "interesting ruling," by Devlin, who suggested the
provincial court judge had no jurisdiction to rule on the issue, even though
his findings are supported by the federal Crown.
also warned of the possibility that defence counsel could be "coerced" by
friends or family of the defendants.
is not beyond the realm of possibility that something could happen to good
people," he said.
Crown attorney Arish Khoorshed said the searches are "regulatory" in nature and
not "investigative searches." Since all lawyers in the proceeding would be
subject to the same rules, Khoorshed said "there is no stigma to the search."
described it as "speculation" to suggest guards might look at defence counsel
material and pass on information to the Crown or police.
wanding and searches are part of a "comprehensive package of security measures"
at the courthouse, said Staff Insp. George Cowley, a lawyer with the Toronto
Police Service. He argued that court security in the city of Toronto is the responsibility of the police,
regardless of the jurisdiction of the preliminary hearing judge.
responded that searches should not be approved because of speculative risks, or
because of increased security fears as a result of the Sept. 11 terrorist
tragedy cannot be used to justify every possible interference," said Calarco.
criticized the federal Crown's argument that while the risk is low, the
searches are justified because any potential breach of security during the
preliminary hearing could be significant.
that standard would allow random searches in the street, or of our homes, or
just about anything. That is not what this country is about," said Calarco.
refusing to impose a stay, O'Driscoll said the lawyers had failed to meet the
R.J.R. MacDonald test. The judge added that since the full certiorari hearing
is scheduled for Nov. 14, "the order requested might produce a lot of motion
but little progress."