It sounds like something out of a John Grisham novel.
Allegations of a dirty cop, and prosecutors trying to cover up and bring down the lawyer who exposed the corruption, according to a factum filed in court by defence lawyers Marie Henein and Christine Mainville.
Her Majesty the Queen vs. Leora Shemesh moves into a Kitchener court Monday in a case that will be closely watched by the criminal legal community.
Shemesh is a well-known Toronto defence lawyer charged with perjury and attempt to obstruct justice in relation to her work as defence counsel in a Brampton drug case.
Pretrial motions start Monday before Superior Court Justice Gerald Taylor who will hear the case without a jury.
The Crown alleges Shemesh obstructed justice by claiming to have a video showing a police officer, Peel police Const. Ian Dann, of stealing money from her client Ha Tran’s residence, when no such video existed.
The Crown’s position is that the alleged statement delayed or otherwise impacted other criminal proceedings and therefore obstructed justice. The prosecution also alleges she then perjured herself when, compelled to testify at a different drug case, she stated that she never told anyone that she had such a video, according to the defence factum.
The Star attempted to obtain the Crown’s factum but was told by the Ministry of the Attorney General that it had not yet been filed in court.
Henein and Mainville are asking the judge to exclude Shemesh’s testimony and stay the charges against her, arguing the Crown violated her constitutional rights against self-incrimination while trying to “catch” her out.
The factum accuses the Crown of having an “improper purpose for manufacturing” Shemesh’s testimony, “namely, obtaining evidence for the purpose of incriminating her.
“Any use of this testimony … would violate the foundational rights against self-incrimination,” protected by Section 7 of the charter and “would result in an unfair trial,” the factum says.
Shemesh was “forced into the witness stand” and “compelled to give evidence” after the Crown “misled” and made “factual misrepresentations” to a judge, the defence factum states.
Another defence lawyer, David Rose, now a judge in Newmarket, subpoenaed Shemesh to court in front of Superior Court Justice Bruce Durno to determine if the video existed. Shemesh, represented by Andras Schreck, also now a judge, failed to persuade Durno to quash the subpoena.
By the time she was forced to testify, it was already clear in writing and on the court record that no such video existed, the defence factum says.
“The proposed examination and cross-examination was designed to trick and trap the applicant into saying something contrary to what the Crown believes she had told others.”
Had the Crown informed the judge of critical information — that the officer admitted taking the money — there would have been no need for Shemesh to testify, it says.
According to the defence factum, the Peel officer involved in the drug case initially denied but then confessed to taking money from a safe in the Tran house without documenting it in any way, when confronted by a federal prosecutor.
The officer claimed that he returned the money to Tran in order to try to turn her into a confidential informant, “a claim entirely disavowed by Ms. Tran and ultimately not advanced by the Crown,” the factum says.
When the Public Prosecution Service formally raised the issue with Peel police, their “central concern was the potential impact on its cases, not the need to address Cst. Dann’s misconduct,” the factum says, adding that this is surprising since Dann was one of five Peel officers whom a Brampton judge found to have perjured himself in court.
In 2011, a Brampton judge slammed Dann and four other Peel drug squad officers for illegally searching a home and lying in court to cover up that one of them used excessive force against the accused.