The arrest, prosecution and ultimate conviction - following his guilty plea on August 18, 2006 - of established and arrogant lawyer Peter Shoniker in Toronto, Canada - "There isn't a fucking judge in the city who would grant an [wiretap] authorization on my line" - following an RCMP investigation provided clear evidence - as if any was required - of the involvement of lawyers, certainly this one in particular, in money laundering activity.
The author's own experience, while assigned to the Internal Affairs Unit of the Metropolitan Toronto Police Force, includes the investigation, arrest and prosecution of a former Crown Attorney, then criminal defense counsel, on charges of obstructing justice, counseling to commit various criminal offences and making false affidavits in a scheme involving the bribery of police breathalyzer officers to direct potential clients charged with Impaired Driving (DUI) and related offences to his office.
When the scheme was discovered, several of the clients who had been induced by that lawyer to make false affidavits as well as the lawyer himself were arrested and charged with various offences. Following a trial, the lawyer was convicted, sentenced to 17 months in jail and was eventually disbarred. His appeal to the Supreme Court of Canada was rejected. (See R v. Wijeshina, Criminal Code of Canada). This case is just one of countless other examples of other conspiratorial and unlawful behavior by legal counsel.
Slayton's narrative does not pretend to be a comprehensive review of the thousands of reported cases of misbehavior by members of the legal profession but clearly, by exposing the examples that he does, he is reflecting both the enigma and potential for misbehavior by lawyers, enigmatic, because often there appears to be no logical reason for the misbehavior in many cases and potentiality because those who debase and defame their profession can, under pressure and circumstances, be any lawyer at any time. To a very real extent, a client and/or service provider to the legal profession is at the mercy of whatever legal counsel he or she may happen to engage or from whom he or she may accept a service contract.
Far from being God-like all-knowing professionals, it is infinitely more healthy and prudent to regard lawyers as simply members of a specialized industry made up of individuals with all the weakness, frailties and potential for both technical and moral failure as other human beings in other professions and occupations. After all, some lawyers graduate at the top of their class and some at the bottom. Some lawyers have significant practical experience with certain issues while others have none. Generalists, do not, generally, have the same experience as those counsel who specialize in one particular field, i.e. matrimonial or corporate law and who engage in continuing education with special emphasis on courses in their chosen area of expertise.
It is critical that clients and service providers conduct their own 'due diligence' investigations when contemplating retaining or being retained by specific counsel. Simply picking a name from a legal or phone directory hardly amounts to a responsible selection plan. Lawyers must be interviewed to determine their level of expertise and experience. If necessary, one should be prepared to compensate counsel out of respect for that professional consultation and interview time. They should be asked to provide specific details of similar cases and outcomes to the particular issue in question. If the lawyer is evasive or has no experience, interview someone else until an appropriate counsel can be identified.
A client or supplier should not become the unwitting 'guinea pig' of an inexperienced counsel who may be long on bombast and ego, but short on any true integrity, experience or success. The hourly fee paid to an incompetent, inexperienced counsel can be the same as the hourly fee paid to a competent, experienced counsel. The results, however, can be drastically different.
Lawyers also often have a need for information and such wise counsel recognize the fact that they are not investigators and do not try or pretend to act in that capacity. For that reason, counsel - unfortunately some who have little experience, integrity or sense of principle - frequently will engage the services of private investigators to conduct surveillance, locate and interview witnesses and research and discover information that may assist a civil litigation or the defense of a criminal prosecution.
In some cases, counsel will request that a private investigator obtain non-public, confidential, 'problematic' information that is either not known or cannot be discovered through normal legal means in their jurisdiction.
Virtually all confidential information can be discovered and disclosed, however, by accessing countless information brokers, proprietary data banks and comprehensive commercial information sources by simply querying any major internet search engine such as 'Google', 'Yahoo' or 'MSN'. Indeed, many information brokers market themselves directly by sending a description of services they offer and price lists unsolicited and directly to private investigation firms.
There are literally thousands of databases and information brokers outside of Canada and other jurisdictions offering all-manner of otherwise confidential, non-public, information for a fee, including credit bureau information, unlisted telephone subscriber data, cellular telephone toll records, lien and loan details, land title records, motor vehicle driver and ownership information, bankruptcy as well as bank and brokerage account information to name but a few examples.
While it may be an offence to obtain some of the information that lawyers request from time-to-time if that information were obtained in their particular jurisdiction, the discovery and disclosure of that information from outside the jurisdiction may be entirely lawful or, at the very least, not actionable outside of the jurisdiction of the particular country in which the request was originally made.
Privacy and criminal laws obviously differ in different jurisdictions. Indeed, in many jurisdictions in the United States and elsewhere, private investigators and agencies are not required to obtain a licence while information brokers may operate both as registered businesses or sole proprietorships there and in other countries either as International Business Corporations (IBC) or local entities.
Furthermore, comprehensive databases lawfully exist in other countries that have a more entrepreneurial and lawful approach to both personal and corporate information than, say, Canada, a country has no comprehensive publicly available commercial databases whatsoever. These databases, such as ChoicePoint, contain not only personal information that it would unlawful to obtain in Canada, say, about U.S. Citizens, but some also contain personal information about Canadian citizens as well.
For example, a surveillance investigation in Ontario, Canada was facilitated by information discovered in the well-known American legal, media and general research data base LexisNexis, that contained detailed personal information about the Canadian subject of the investigation that would otherwise not have been lawfully obtainable in Canada without the consent of that subject or a court order. This information enabled a successful surveillance to take place that otherwise would have been impossible. This information, however, was readily available simply by querying this U.S. database, a database that is accessible to anyone at public libraries offering this service or by direct subscription to this service upon payment of the required fee.
Another example occurred in November 2005, when a journalist associated with Maclean's Magazine in Canada obtained the private and confidential Bell Canada telephone records of the federal privacy commissioner, Jennifer Stoddart from an information brokerage firm in the United States known as LocateCell.com. This information was then disclosed to the privacy commissioner. This case highlighted in a classic way the jurisdictional dilemma involving the discovery and disclosure of otherwise private and confidential information, at least, insofar as such information happens to be private and confidential in any particular jurisdiction.
It was determined that had LocateCell.com been operating in Canada and had this telephone information been obtained in that jurisdiction, then this would have constituted the collection, use and disclosure of personal information without the consent of the individual and therefore a violation of the Personal Information Protection and Electronic Documents Act (PIPEDA) R.S.C., and could have resulted in the seeking of an injunction and a claim for damages from the Federal Court of Canada. However, it was also determined - and based on previous precedent - that PIPEDA did not apply to organizations and businesses located in the United States and therefore there was no jurisdiction to investigate companies such as LocateCell.com outside of Canada.
With respect to the issue of potential criminal liability, it was determined, again, that Canadian authorities lacked the jurisdiction to pursue the matter directly. While, theoretically, a Mutual Legal Assistance Treaty (MLAT) existed between the United States and Canada related to criminal matters, the use of the process is complicated and is in practice reserved for high-profile cases involving significant threats to public safety. The matter understandable becomes complicated even further if no MLAT exists between the jurisdiction in question and the location of the source of the confidential information, for example, if the source of the data is in the Republic of Panama or elsewhere.
When lawyers request confidential, 'problematic' information, it is clear that they do not care to know where the information comes from or the process by which the information is obtained. (And the source of the information, the data broker or company, will not disclose how they obtain the information as, to do so, would essentially put them out of business or assist a competitor.) The lawyer simply wants the information, period, either directly for themselves or indirectly, on behalf of a client. How it is obtained is not a concern. (Whether he or she should be concerned or not is another matter entirely.)
Logic and commonsense dictates that when confidential information is provided that has been specifically requested by a lawyer - or anyone for that matter - this information, if obtained, is simply raw data, entirely unsuited for disclosure or introduction into a legal proceeding until it has been validated independently, as - clearly - the information must have come from a third party source unknown to the lawyer or client in question. For a lawyer or anyone else to assume or deal with this raw information as if it were valid or to attempt to use or disclose such data in the raw and untested form in which it is received is grossly illogical, naive and irresponsible.
THAT BEING THE CASE, BECAUSE THE RAW DATA IS CLEARLY PROVIDED FROM THIRD PARTY SOURCES, IT IS ABSOLUTELY OBVIOUS THAT IS NOT BEING PROVIDED AS VALIDATED OR CONFIRMED INFORMATION, BUT MERELY AS INFORMATION THAT MUST BE SUBJECTED TO FURTHER DUE DILIGENCE TESTS AND INDEPENDENT CORROBORATION BEFORE IT CAN BE PRESENTED TO A COURT OR ANY OTHER FORUM AS VALID, ACCURATE AND TRUE.
In some cases, it may be immediately obvious from the nature of the raw data obtained - such as in the case of the telephone toll records of the Canadian Federal Privacy Commissioner - that the raw information is indeed true and accurate on its face. (One only has to examine a few of the telephone numbers within a telephone toll record to know whether that record is valid or not.)
In other cases, such as raw data related to financial records, it may be more difficult - indeed virtually impossible - to validate such information without obtaining the requisite Court Order or using less formal but effective methods. (Unfortunately, a Catch-22 exists, because the very information necessary to obtain the Court Order is also the very information that the Court Order seeks to obtain in order to validate the raw data that has been provided.)
THE FACT, HOWEVER, THAT IT MAY BE DIFFICULT OR IMPOSSIBLE WITHOUT A COURT ORDER TO VALIDATE CERTAIN KINDS OF INFORMATION DOES NOT MEAN THAT THIS INFORMATION IS FALSE OR FRAUDULENT OR CANNOT BE VALIDATED BY LESS FORMAL METHODS. INDEED, AS STATED, THIS RAW DATA IS NEVER OBTAINED OR PROVIDED AS VALID, ACCURATE OR TRUE. THOSE WHO REQUEST THIS INFORMATION - ESPECIALLY LAWYERS - KNOW VERY WELL AND CANNOT CREDIBLY LATER DENY THAT THIS IS THE CASE.
In addition, raw data may be incomplete owing to the search parameters provided by the lawyer or client requesting the information. If, for example, a person has a registered company, especially in another jurisdiction, the name of which is not known to the person requesting information but who is aware only of personal but not corporate information, it is impossible for an investigator or third party information broker to provide data about that unknown entity because the information to enable a search for corporate information was not provided.
If, for example, a hidden company is registered in the Bahamas, if the name of that company is not known, there is simply no basis to even look in that jurisdiction and even less chance that anything would be found if an investigation were undertaken on mere speculation unless other information suggested the existence of data in that jurisdiction.
This is precisely the reason why 'offshore' business registrations and accounts are so attractive. They are difficult if not impossible to locate and, accordingly, are favored by enterprise criminals, corrupt politicians, money launderers, drug dealers and others who wish to hide their illicit financial activity.
Furthermore, some raw information is immutable while other types of raw data records are fluid and subject to infinite change.
For example, telephone toll records are - apart from technical errors - immutable. The numbers are what they are and register fixed information related to past telephone activity. Telephone activity in March does not alter the telephone activity that occurred in January.
On the other hand, financial records represent other raw data that is fluid and subject to infinite change. A bank account number may be cancelled or changed to another number or the account itself may become dormant or archived or transferred to a another account at another institution in another jurisdiction. Furthermore, financial activity, including deposits, withdrawals, wire transfers and other activity can completely alter the nature of an account within minutes, hours, days or months of the original raw data being provided.
Every lawyer, police officer and/or experienced private investigator knows - or should know - that the principle or test that is applicable to all data or potential information that may be presented to a Court is the Best Evidence Rule. Basically, the best evidence rule requires that original data or information must be obtained and presented to a court and not simply a copy of this data or information purporting to be a copy of the original data or information.
QUITE OBVIOUSLY, A COPY OF INFORMATION OBTAINED FROM A THIRD PARTY SOURCE THAT IS CLEARLY PROVIDED IN THE FORM OF RAW INFORMATION IS NOT PROVIDED NOR IS IT INTENDED OR IS IT PRESENTED OR TO BE INTERPRETED, ACCEPTED OR VIEWED AS AN ORIGINAL COPY OF THE DATA OR INFORMATION IN QUESTION.
Original data or information that is held by an institution, whether that be a telephone company, a government department or ministry, a credit bureau, a corporation, a bank or a brokerage company, can never be provided by a third party source or investigator.
ONE CAN HARDLY CLAIM TO BE DEFRAUDED BY RAW DATA WHEN IT IS BOTH EXPLICITLY AND IMPLICITLY CLEAR THAT THIS RAW DATA IS NOT PROVIDED AS VALID, ACCURATE OR TRUE. IT IS SIMPLY RAW INFORMATION THAT MUST BE OTHERWISE INDEPENDENTLY CORROBORATED.
This independent corroboration can be obtained directly by means of a Court Order or Mareva Injunction or, indirectly, through Admissions obtained during depositions or cross examination or by the fact of an Unexpected Settlement following disclosure of the raw information to the party suspected to have the hidden information in question.
Third party sources cannot and will not validate this kind of information and those who request this kind of information know this, especially a lawyer who requests this kind of raw data in the first place. Lawful means must be used to obtain the original data or information records in order to satisfy the Best Evidence Rule and it is preposterous to suggest that legal counsel do not know clearly know this to be the case.
For a lawyer to deny or attempt to divert attention away from his own responsibility and complicity with respect to the obtaining of this raw information - after all, he or she initiated the request for the information in the first place - is simply to attempt to engage in 'willful blindness' or to - in a cowardly way - avoid some form of perceived liability.
To do so amounts to puerile and unbelievably negligent activity that also violates basic principles of ethical behavior and business practice and betrays whatever privilege and other confidentiality understandings existed between the private investigator and the lawyer and/or the client and the lawyer.
(Indeed, because of jurisdictional differences, it is not even clear that there is anything at all wrong for a lawyer of anyone else to obtain and use, directly or indirectly, information that is lawfully available in other jurisdictions despite such information being problematic if it were obtained in their own jurisdiction.)
In other cases, lawyers simply compound the misery of clients when they claim to be able to obtain otherwise confidential information, charge significant fees for this purpose, and then are unwilling or unable to do so. In one Canadian case involving a request to confirm confidential financial data, the lawyer reportedly was provided a fee of $50,000.00 in relation to a matter that had been ongoing for many years, but somewhat less than brilliantly finally made the very Neanderthal suggestion that the client engage - or presumably hire private investigators - to engage in 'dumpster diving' in order to possibly obtain financial records. And this was a case allegedly involving international money-laundering activity that had been underway for many years! Just where did this counsel think that this 'dumpster diving' was to occur? The Bahamas!? Hong Kong!?
In other cases, counsel will accept significant fees to write letters and send e-mail requesting or attempting to validate certain kinds of information from financial institutions knowing full well - how could they deny that they do not know? - that information cannot be obtained or validated in this way. For example, in Canada, various Evidence Acts provide that financial institutions cannot be compelled to disclose account information in the absence of a Court Order.
Section 33, subsection (4) of the Ontario Evidence Act, in this regard, states that a bank officer is not compellable to provide bank account information or to appear at a proceeding at which the bank is not a party to give evidence in respect of bank account information unless the bank is first served with a court order for special cause.
Then, most disingenuously, receiving (the expected) non-committal and neutral responses from the financial institutions in question - such as, "We will not comment upon a relationship with a client in the absence of a Court Order" - and having no other imagination, expertise or competence with respect to validating the raw information, the lawyer and/or client then engages in the classic, cowardly game of "shoot the messenger" in an attempt to marginalize the source of the information, the credibility of the source, or the accuracy of the information itself. (This is known colloquially as "sucking and blowing". Unfortunately, in practice, it is impossible to perform both actions at the same time. Some counsel, however, persist in attempting to do the impossible instead of simply doing what is lawful, right and technically necessary.)
For counsel to hold out the (false) hope that they are competent and able to obtain certain kinds of information when they absolutely must know in advance that they cannot obtain the information they have been asked to provide, and for which they accept significant retainers, is simply a slick form of business fraud that takes advantage of what may be a desperate and emotionally driven client.
While such a practice may be strictly and technically 'legal', from a moral and ethical perspective the practice is absolutely despicable. It becomes questionable what is more heinous and fraudulent. The original cause of action or the lawyer's deliberate financial manipulation of the client when he or she knows absolutely in advance that they are unable or are unwilling to obtain the information their client is requesting.
So, being unable or unwilling to validate the raw data, the lawyer - or a client who is not represented by a lawyer - may attempt to claim that the information itself is false and fraudulent without having any basis whatsoever to make such a ridiculous claim, given that it is raw data only that it was his or her responsibility to validate, not the responsibility of the investigator he or she hired or of the original third party source from which the data was obtained.
THIS IS ALL THE MORE UNBELIEVABLE AND INCREDIBLE SINCE THE RAW INFORMATION WAS NEVER PROVIDED TO THE LAWYER OR CLIENT AS VALID, ACCURATE OR TRUE IN THE FIRST PLACE, A FACT THAT IS, OR SHOULD BE, WELL KNOWN TO EITHER OR BOTH OF THEM. THEY CANNOT, THEN, LATER DENY - FOR THE SAKE OF CONVENIENCE OR REIMBURSEMENT OF FEES PAID TO FULFILL THEIR VERY OWN REQUEST FOR WHAT THEY KNOW WAS SIMPLY RAW DATA - THAT THEY WERE PROVIDED WITH FALSE OR FRAUDULENT INFORMATION.
Some counsel, unbelievably, will even disclose this raw, unconfirmed information to opposing counsel and their client and then try to blame others presumably in an attempt to minimize their responsibility for requesting and obtaining the information in the first instance and to deflect attention away from themselves. They then attempt to hide behind civil rules of disclosure as the reason for the incomprehensible revelation of what amounts to nothing more than raw data that clearly required validation before being used or disclosed.
What must be recognized is that information and access to it, increasingly, cannot be restricted by the rules applicable in any particular jurisdiction, whether this be a province, state, or nation. The internet and other forms of modern communication have largely and effectively eliminated jurisdictional boundaries with respect to the collection, use and disclosure of information of all kinds. Increasingly, as Marshall McLuhan once noted, we are indeed living in a 'Global Village'.
THOSE WHO THINK THAT A NEW FORM OF 'IRON CURTAIN' CAN BE ERECTED AROUND A PARTICULAR JURISDICTION TO PREVENT ACCESS TO AND DISCLOSURE OF WHAT MAY BE CONFIDENTIAL INFORMATION IN THAT PARTICULAR JURISDICTION ARE BOTH NAÏVE AND BLIND TO THE FACT THAT SUCH INFORMATION CAN BE READILY OBTAINED FROM INNUMERABLE OTHER JURISDICTIONS, DATABASES AND THIRD PARTY SOURCES.
What must also be recognized is that the more one particular jurisdiction attempts to restrict access to critical corporate and personal information, the more the demand will be by those who need access to this very information within that jurisdiction. So called 'whistleblowers' and other sources within government, corporations, financial institutions and other organizations are likely to make themselves increasingly available to meet the demand for otherwise hidden information. Given the international nature of information collection and exchange, data not available in one jurisdiction is likely to be available in another jurisdiction through information brokers, commercial databases or otherwise.
Information is the life-blood that determines whether an investigation by a private investigator or by law enforcement can or will be successful. Attempts to restrict access to information to only 'politically correct' kinds of information or 'politically correct' methods of obtaining information within a particular jurisdiction represents narrow and repressive thinking, restricts transparency and prevents investigation of significant enterprise crime and political corruption by denying access to the very kind of information necessary to even begin let alone continue to undertake an investigation into matters of this nature.
"Political Correctness" ignores the reality of modern business, cyber communication and data flow that increasingly is unrestricted by national boundaries. Indeed, governments appear to fear investigators who have the ability to access unsanctioned data as well as unapproved methods of investigation. For these reasons, governments attempt to politically control investigators through licensing and the threat of denying a licence or revoking a licence that has already been issued. (Please visit: LICENCE REVOCATION: DECEIT, INFLUENCE PEDDLING, FALSE TESTIMONY elsewhere in this website.)
Finally, rules that deny access to certain kinds of information by erecting a new 'Iron Curtain' of virtually impenetrable access to information because of privacy, banking and so-called 'access to information' legislation, simply creates an environment that can be exploited by those who choose to engage in enterprise crime, fraudulent activity and money-laundering, including corrupt current and former politicians, senior corporate owners, directors of financial institutions, law enforcement officials and other associates aided by complicit banking officials and legal counsel.
Too much privacy simply encourages and facilitates so-called 'white collar' criminality otherwise known as enterprise crime. Unfortunately, as author John Gray noted in Canadian Business, January 18, 2008, Canada, in particular, has become, for this and other reasons, "A Good Country For Crooks". Significantly, as Philip Slayton observed, and as direct and indirect experience demonstrates, a number of lawyers have gone and will continue to go 'bad', become 'crooks', and engage in criminal activity including money laundering on behalf of themselves, their clients and other associates.
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