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Lawyers lose bid not to be searched

|Written By Shannon Kari - Law Times

Agroup of Toronto defence lawyers has lost afirst attempt to overturn a ruling that requires them to submit to "wanding"and searches of their legal materials before entering the courtroom at Toronto's east-end Scarboroughprovincial court during a high-profile alleged gang prosecution.

Superior Court Justice John O'Driscoll turned down a stay application by the lawyers to resume the preliminary hearing without searching defence counsel, until a full certiorari hearing on the issue Nov. 14.

The lawyers represent 17 defendants facing over 100 gang-related charges, following a Toronto police investigation last year known as Project Pathfinder.

Justice 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.

The 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.

Paul 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 professional conduct.

He 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.

The 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.

Robertson's 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.

Devlin also warned of the possibility that defence counsel could be "coerced" by friends or family of the defendants.

"It is not beyond the realm of possibility that something could happen to good people," he said.

Provincial 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."

He described it as "speculation" to suggest guards might look at defence counsel material and pass on information to the Crown or police.

The 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.

Calarco 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 attacks.

"That tragedy cannot be used to justify every possible interference," said Calarco.

He 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.

"Applying 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.

In 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."

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