None of the allegations have been proven in court.
In May 2015, Peel police officers charged Shemesh with perjury and obstruction of justice. The Crown withdrew those charges 13 months ago after a pretrial hearing in Kitchener, Ont.
The defendants “intentionally blurred the separation between investigation and prosecution and used all tools available” to search for misconduct on Shemesh’s part, the statement of claim says.
Sean Dewart, the lawyer representing Shemesh, said Friday the claim has been filed in court but not all defendants have been served.
Rob Serpe, executive director of the Peel Regional Police Services Board, wrote in email to the Star that the board will not be commenting since the matter is before the courts.
Shearer couldn’t be reached for comment about the lawsuit.
In an email, a spokesperson for the Public Prosecution Service of Canada said it “will respond to the allegations in court. We have nothing further to provide.”
No statement of defence has yet been filed in response to the lawsuit.
Earlier this year in response to allegations a lawyer for Shemesh made about the actions of prosecutors, the prosecution service conducted a review. A news release said the review identified several “structural, educational and process-related issues,” and that steps had been taken to address them “on a national basis.” The prosecution service did not release the report publicly.
Events leading to this litigation have a long and complicated history.
In a 2009 drug case, Peel police Const. Ian Dann was among four officers that a Brampton judge found assaulted Shemesh’s client, Ha Tran, and lied about it in court. The judge described the officers’ conduct as “reprehensible.”
Shemesh was later retained by a woman facing drug charges laid by Dann and other officers. Before the preliminary hearing in 2013, Shemesh informed federal prosecutor Robert Johnston that she had been told Dann had taken money from her client’s safe at the time of her arrest, according to the statement of claim.
“The plaintiff (Shemesh) said words to the effect that she did not understand how P.C. Dann could act like this, and that for all he (Dann) knew, the theft could have been video recorded by a nanny cam,” according to the statement of claim.
“When asked if there was in fact a nanny cam video showing P.C. Dann taking money from a safe at Ms. Tran’s home, the plaintiff stated that as an accused person, her client did not have any disclosure obligations and that the contents of her file were privileged.”
Last year, during the hearing that led to Shemesh’s charges being withdrawn, Johnston testified the defence lawyer told him she had seen a “nanny cam” video. The Crown, in its’ 2018 factum filed in advance of the pretrial hearing in that case, alleged Shemesh had promoted, to a variety of sources including other defence lawyers, “her possession of this fictitious evidence which foreseeably delayed or otherwise adversely impacted other criminal proceedings.”
The officer first denied stealing the money, then confessed to having done so, asserting it was to try and turn Tran into a confidential informant, according to the statement of claim, which adds that none of the usual procedures with respect to the recruitment or payment of confidential informants were followed. Dann was found guilty of neglect of duty under the Police Services Act.
The lawsuit alleges prosecutors and police failed to address his misconduct properly and then tried to “suppress their failure.” The Crown’s 2018 factum in the Shemesh perjury case denied that the Public Prosecution Service of Canada “buried their concerns over Const. Dann’s alleged conduct.” Shearer headed the Dann investigation.
After other defence lawyers started seeking information about the purported “nanny cam” video, along with Dann’s alleged misconduct, Shemesh was ordered to appear in court in a separate drug case. Before her testimony, her counsel sent a letter to prosecutors advising them she was not in possession of any video recording of Dann.
During her testimony, Shemesh stated she had never told anyone she had a nanny cam recording.
On May 20, 2015, Shemesh was charged with perjury based on that testimony, and obstruction of justice for allegedly telling the Crown that she had a video of the officer stealing money.
Last June, Shemesh’s counsel, Marie Henein, brought a pretrial application to stay the charges. After the testimony of the federal prosecutors, the Crown withdrew the charges against Shemesh saying there was no reasonable prospect of conviction.
In a text message to the Star, Shemesh, who continues to practise law in Toronto and surrounding areas including Brampton, wrote that she is suing those responsible for “tarnishing my good name, for accusing me of being unethical and not acting with integrity — the very values that I hold so dear.”
She added “it is important to ensure that those in positions of power don’t abuse that power unethically. I was forced to endure a three-year battle that was costly and emotionally and professionally draining.”
Betsy Powell is a Toronto-based reporter covering crime and courts. Follow her on Twitter: @powellbetsy