Pubdate: Fri, 09 Jul 2004
Source: Globe and Mail (Canada)
Copyright: 2004, The Globe and Mail Company
Contact:  http://www.globeandmail.ca/
Details: http://www.mapinc.org/media/168
Author: Gay Abbate, Courts Reporter

PROSECUTION OF DRUG-SQUAD OFFICERS HITS SNAG

One Defence Lawyer Balks At Signing Agreement Limiting His Use Of Material

The prosecution of six Toronto drug-squad police officers on corruption 
charges has stalled because one defence lawyer is refusing to sign an 
agreement that would severely restrict his use of more than 100,000 pages 
of disclosure material.

Because the material contains sensitive information, such as informants' 
names, the agreement would prohibit lawyer Morris Manning, who represents 
Staff Sergeant John Schertzer, from disseminating any of the information 
publicly.

Mr. Manning argued in the Ontario Superior Court yesterday that the 
agreement violates his client's constitutional right to present a fair 
defence, because he cannot show the material to potential witnesses.

Mr. Justice Eugene Ewaschuk rejected the Charter argument but called the 
Crown's move to require the defence to sign a five-page agreement as a 
condition of receiving disclosure of so much material "highly unusual."

He told Crown attorney Milan Rupic that he has been practising law since 
1966 and has never come across such an agreement. "I've only heard of it 
over coffee," Judge Ewaschuk said.

After hearing arguments and unsuccessfully trying to mediate a compromise 
between the parties, Judge Ewaschuk ordered Mr. Rupic to go away and 
identify those documents that contain sensitive information. The matter was 
adjourned to Sept. 1.

Mr. Manning is the only holdout among the lawyers defending the six 
officers who were charged in January with a total of 40 criminal offences. 
Staff Sgt. Schertzer, a leader within the central field command drug squad, 
faces eight charges, including conspiracy to obstruct justice, perjury, 
theft, assault and extortion.

Mr. Rupic argued the agreement was necessary because the disclosure 
materials contain the names of confidential informants and of other people 
who could be at risk if their identities became known.

Mr. Rupic said it could be very difficult to identify sensitive sections. 
Included in the mountain of paper are search warrants, affidavits, police 
officers' notes, investigative briefs and scraps of paper, he told the court.

The Crown is not being arrogant or high-handed in insisting on the 
agreement, Mr. Rupic said. "The Crown just wants assurance that the 
material will not seep out."

Mr. Manning said he is somewhat affronted by the agreement, and that he 
took an oath as a lawyer to obey the law and does not need a piece of paper 
to guide him. "I've always been faithful to my oath," he said outside court.

The agreement would require him to return all the materials to the Crown at 
the end of the case. It would not bind his client, who could do what he 
wants with the material, Mr. Manning noted.

He said that the document, which he calls "an abuse of process," would also 
prohibit him from using any of the information in the disclosure in a civil 
lawsuit to which his client is a party.

Staff Sgt. Schertzer and seven other drug-squad officers filed a 
$116-million lawsuit in January, 2003, against the Toronto Police, the RCMP 
and Ontario's Solicitor-General. The lawsuit, which is still outstanding, 
charges malicious prosecution arising from charges laid in 2000. The 
charges were dismissed two years later.
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