Spectre of Scandal Raised After Charges Against Crown Dropped

By: Lawrence Gridin · January 9, 2009 · Filed Under Civil Rights, Criminal Law, Ethics · 3 Comments

In a story rife with intrigue, the Toronto Police Association has filed a Law Society complaint against a London criminal defence lawyer stemming from her involvement in the prosecution of a Crown attorney. A complaint was also forwarded to the Attorney General’s office.

Jeanine LeRoy, one of London’s top criminal defence lawyers, was called in to prosecute a Toronto Crown charged with assault and resisting arrest. LeRoy was brought in as a special prosecutor because of the conflict of interest in having Crowns prosecuting their own.

The background to the case is bizarre.

On October 6, 2007, Roger Shallow was celebrating his birthday with his friends and family. He was with his girlfriend attempting to load his birthday presents into a car when asked to “move on” by a parking enforcement officer.

The police claim that Shallow appeared to be intoxicated, and that he was belligerent towards the officer.

According to Shallow’s lawyer, David Humphrey, “she takes offence and starts to arrest him for public intoxication and he resists – we say, with perfect legal justification.”

Shallow was charged with assault, resisting arrest, and causing a disturbance. He was then brought to the 52 Division police station. At that point, police allege that Shallow tried to pull rank by telling police he was a prosecutor.

Police Association president Dave Wilson claims that “he was saying, ‘I’m a Crown attorney, you don’t know who you’re dealing with.’”

The police were apparently not impressed by what Wilson calls “improperly attempt[ing] to seek special treatment by virtue of his position.”

In fact, to say that the police were not impressed is an understatement. At some point — details are hazy — Shallow was subjected to a strip search.

His involvement in the prosecution of police officers may have been a factor.

In 2004, Shallow successfully prosecuted a Toronto police officer for breaking the cheekbone of a Jamaican man during the course of an arrest. It was a racially-charged case in which the trial judge found that the cop, by essentially fabricating a charge, was not in lawful execution of his duty when he arrested the complainant and used excessive force. The conviction was upheld by the Superior Court of Justice and later by the Ontario Court of Appeal [R. v. Walker, 2007 ONCA 104].

He has also prosecuted two other police officers in other jurisdictions.

I will add, as an aside, that Shallow is himself a black man, having immigrated from Trinidad as a child. He was president of the Black Law Students Association at Windsor Law in 1999.

Subsequent to the strip searching incident, Shallow sought an SIU investigation into the conduct of the police. He had charges of assault brought against the two arresting officers, and also filed a human rights complaint against the Toronto Police.

Shallow’s criminal case was scheduled to go to trial on January 8, 2008.

Jeanine LeRoy, the special prosecutor, after reviewing the case and canvassing the Charter issues involved, came to the conclusion that there was no reasonable prospect of conviction. The charges were dropped on the day of trial.

The Police Assocation feels that LeRoy did not adequately consult with the police in preparing for the case. Wilson claimed in an interview that he was stunned by the Crown’s decision, and said that “this appears to be preferential treatment and is the exact kind of situation that causes the public to lose faith in the court process.” This is despite the fact that LeRoy is actually a defence attorney from another city, and was brought in precisely to avoid allegations of preferential treatment.

In what appears to be politicking in a completely scandalous case, the police have reported LeRoy to the Law Society and complained to the Attorney General about her “misconduct.”

Without knowing the details of the case, it appears that LeRoy’s decision was well-founded.

First, strip searching an accused without the proper grounds is a violation of s. 8 of the Charter. If done for an improper purpose, it probably warrants a stay of prosecution.

In R. v. Golden, 2001 SCC 83, the Supreme Court held that the police must have reasonable and probable grounds for thinking that a strip search is necessary in the particular circumstances of the arrest. There must be reason to believe that the accused is concealing evidence or weapons on his person. Why a strip search would be necessary when the charges are causing a disturbance, resisting arrest, and assault, is unclear.

The Supreme Court further went on to say that:

“In our view it is unquestionable that [strip searches] represent a significant invasion of privacy and are often a humiliating, degrading and traumatic experience for individuals subject to them… regardless of the manner in which they are carried out.

…

A strip search will always be unreasonable if it is carried out abusively or for the purpose of humiliating or punishing the arrestee. Yet a “routine” strip search carried out in good faith and without violence will also violate s. 8 where there is no compelling reason for performing a strip search in the circumstances of the arrest.

Secondly, a 15-month delay in bringing a summary conviction charge to trial might be a good candidate for a stay based on s. 11(b) of the Charter.

One thing I do know is that Jeanine LeRoy is a well-known and well-respected member of the London criminal defence bar. She certainly has an excellent understanding of the Charter. I don’t know her personally, but all of the lawyers I have spoken to say that LeRoy is a woman of great integrity and talent.

Unfortunately, LeRoy now finds herself caught up in what appears to be a scandalous case of police abuse.

In preparing this post, I contacted a liason at the Toronto Police Association and did not receive a response.

Post tags: Crown, Jeanine LeRoy, police, police abuse, R. v. Golden, scandal, strip search, toronto, Toronto Police Association

Comments

3 Responses to “Spectre of Scandal Raised After Charges Against Crown Dropped”

jean vinter on September 29th, 2009 5:29 pm

I have just read your remarks and comments on Ms Leroy website and have a similiar story of police treatment that would make this seem like a children fairy story.

As a 62 year old female the only thing I am guilty of is giving up the last 12 years of my life being a care giver to a chronic invalid.

For which I have also assumed the burden of dealing with criminal charges against him simply because he is too sick to do it himself.

If you would care to contact me directly I would be willing to share a detailed report of my 25 hours in the police cells for the above arrest resulting from these ludicrous charges.
J Vinter
Lawrence Gridin on September 30th, 2009 3:29 pm

Dear Jean,

Wrongful arrest is not uncommon.

Often, innocent people are arrested and charged through a legitimate mistake on the part of the police who are doing their best with the information they have available.

Other times, (very rarely) the police use arrest maliciously as a punitive tool.

If you wish to make a complaint about misconduct, you may want to speak to a lawyer in your province who specializes in police discipline. You can also find information about police complaints online. In Ontario, for example, you might want to read through the Police Services Act.

Depending on your circumstances, you might also want to speak to a lawyer who deals with civil claims. It may be possible to obtain financial compensation if you have been wronged.
Ben Willson on November 2nd, 2009 6:17 am

“speak to a lawyer in your province who specializes in police discipline” is this a pro-cop lawyer or at least a neutral lawyer? How does one find such a specialist?

Are you actually recommending this individual go through the patronizing process of lodging a complaint under the Police Services Act in order for the Police to investigate themselves?

I guess there will never be a resolution to properly deal with Police abuse of power. Policing was never intended to be the animal it had become.