You are a homicide detective working one of the most sensational cases in recent history. Billionaires Barry and Honey Sherman, found dead in their basement swimming pool room, staged in a macabre pose. Barry’s BlackBerry is discovered nearby, and his office computer and cluttered desk are surely awash with clues.
But hold on. Due to a protocol hammered out by government lawyers and counsel for the late Barry Sherman’s firm Apotex, you cannot look at any of this information until lawyers for the generic drug giant decide what police can and cannot see due to legal privilege concerns.
Police were told that if they spotted something — perhaps a sticky note on Sherman’s desk, a cancelled appointment in his calendar, the time of his last phone call — they were forbidden to act on the information until the lawyers give the green light.
That’s what homicide detectives Susan Gomes, Brandon Price, Kristen Thomas, Kristy Devine and Dennis Yim were dealing with in the first month of the Sherman death investigation, according to documents unsealed by a judge last week. An agreement worked out between Apotex, the Sherman family estate and lawyers for Ontario’s Ministry of the Attorney General set the terms, including how they should deal with the BlackBerry, the computer, and three other devices.
The ministry lawyers agreed “to a protocol by which Goodmans LLP, acting for Apotex and for the estate trustees of Bernard (Barry) Sherman and Honey Sherman, will review the data extracted from the five devices first, to ensure legal privileges are protected, before the data are released to investigators,” reads a statement describing the protocol unsealed following a Toronto Star application in court.
Rare though this arrangement is in a homicide investigation, the concept of legal privilege is recognized by the highest court in Canada and is increasingly an issue in many investigations. Janani Shanmuganathan, a criminal lawyer experienced in matters of privilege and not involved in the Sherman case, says that while not every file involves the spectre of privilege — and not all individuals and companies know they have this protection — this one does.
“Apotex is a big company so when they seize electronics that are related to the Shermans or to Apotex there’s a host of things that could be on there that are unrelated to the murder investigation itself,” said Shanmuganathan. She said a large pharmaceutical company and its founder and chairman would have information on electronic devices dealing with litigation files, patent information and issues with its competitors.
Meanwhile, Toronto police have said they have a “person of interest” in the almost three-year-old double-murder investigation. Police have told the Star they are “busy” on the case, following a recent flurry of search warrants in Ontario and in one foreign jurisdiction they will not identify.
Here’s what happened in the early days of the Sherman investigation:
The Shermans were found dead of “ligature neck compression” on Friday, Dec. 15, 2017. Police initially investigated their deaths as a murder-suicide, but some officers were not sure. Five days later (Dec. 20) they applied for a series of search warrants for devices found in the Sherman home in Toronto — Honey’s phone, Barry’s BlackBerry, a laptop, two iPads and a desktop computer, and separately for a computer at Barry’s office at Apotex.
Police had seized all of these devices and sealed them in Property Locker 51 at 33 Division, the closest police division to the Sherman home on Old Colony Road in the Bayview Avenue and Highway 401 area of north Toronto. Detectives knew they needed a judicial authorization — a warrant — to look at the devices.
Justice Leslie Pringle of the Ontario Court of Justice (designated to do all of the Sherman case warrants) allowed the execution of the warrant for Honey’s phone, a white iPhone with a recognizable jewelled case her friends identified to police. It was found in a powder room on the main floor of the Sherman home, fuelling speculation she had run there to escape an attacker. But Pringle disallowed all other requests in the first warrant application, saying police had not proved to her either who owned the other devices, or whether anyone else lived at the home. (If someone else lived at the home, for example, they might be the owner of the other devices, which would put them off limits to police.)
On Dec. 20, Honey’s iPhone was removed by a detective from the police locker and the data on it extracted. By that evening, police knew to whom Honey had made her final call shortly after 6 p.m. on Wednesday, Dec. 13, and that her phone showed numerous missed calls over the next two days. Police could now, five days after the bodies were discovered, start running down those leads.
The other devices stayed in the police locker. At Apotex, Barry’s office was sealed off by police. Sean McDonald, a security officer at the company, had earlier let detectives take away Barry’s desktop computer, two days after the bodies were discovered. His actions are described by Apotex lawyers as “his desire to co-operate” in the “aftermath of the shocking news of the deaths of Dr. Sherman and his wife.” However, police did not have the legal authority to look at the computer, Apotex lawyers told police the next day. Police documents show that detectives wanted to scan Barry’s emails, documents, and his internet search history. Was it murder-suicide? Double-murder? Detectives state in their search warrant applications that they needed to see everything going on in Sherman’s life, starting with his electronic devices.
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Five days into the case, police had not even looked at Barry’s BlackBerry. During interviews, police had already heard from numerous colleagues of Barry that he was more than attentive to calls and emails on his BlackBerry. “Email Barry at 12 midnight, he responds at 12:01,” one colleague at Apotex told the Star.
As detectives began writing a new search warrant application — taking care this time to have witnesses identify the various devices as belonging to either Barry and Honey, and nobody else, and providing scene photos of where each device was found in the house — police received a letter from a lawyer at the Goodmans’ law firm, which acted for Apotex. The letter came from Jessica Kimmel (now a Superior Court of Justice judge.) She wrote that while Apotex “wishes to fully co-operate in the investigation,” the company had concerns that “the electronic and hard copy records of the company are likely to be replete with privileged communications and materials.”
Kimmel, acting for Apotex, asked the police to make sure any judge looking at further search warrant applications be made aware of this concern over privilege.
“Many of the documents are highly confidential and proprietary to the company and their disclosure to third parties could result in significant financial harm to the company,” Kimmel wrote to police.
Enter two lawyers from Ontario’s Ministry of the Attorney General, Randy Schwartz and Matthew Asma, both with the Crown Law Office. The documents released to the Star reveal a back and forth between Apotex and its lawyers (including in-house Apotex lawyer Peter Kalins) and the two Crown lawyers. Here’s what they worked out, according to police documents:
The homicide squad would select police officers who were not on the investigative team and they would conduct their search of Barry’s office with a lawyer from Apotex’s law firm, Goodmans LLP.
“To the extent that any content is observed by a member of the (Toronto police) that person shall not communicate it to anyone else or make use of it” until Goodmans has done a review of the information.
Police were allowed to extract call logs, emails and other data from Sherman’s devices (and copy the documents in his office) but were required to deliver it all to Goodmans. Goodmans would then determine what was “privileged” and provide a log to police, listing in general what they were withholding and why. Nonprivileged data and papers would be turned over to police.
“Following its privilege review, Goodmans will return in a secure manner the nonprivileged portions of the extracted data, and a copy of the privilege log to Det. Brandon Price … to be used in the police investigation,” a police document states.
The police documents unsealed last week do not reveal when homicide detectives began receiving the information. However, the deal was not hammered out until one month after the Shermans were murdered, meaning the review of the BlackBerry, desktop and other devices did not start until roughly Jan. 15, 2018.
Schwartz, director of Ontario’s Crown Law Office, who was involved in drafting the protocol, told the Star Thursday he could not comment on the arrangement because the case is active and ongoing and there is the possibility of “criminal proceedings.”
The Star reached out to Apotex and Goodmans, but did not receive a reply to questions.
This week, the Star revealed that Toronto police have a “person of interest” in the case, someone they believe to be involved but who has not been arrested.
Kevin Donovan can be reached at 416-312-3503 or [email protected]
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