Barry and Honey Sherman murders: What's slowing the cops down at Apotex headquarters - Macleans.ca

Barry and Honey Sherman murders: What’s slowing the cops down at Apotex headquarters

Files covered by solicitor-client privilege might hold the case-breaking clue. Who decides whether police can see them?

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Toronto police are now certain of the what and the how: Barry and Honey Sherman were indeed murdered, strangled to death in a “targeted” attack. Who wanted them gone—and why—is the mystery that remains.

By Friday afternoon—when police officially confirmed at a press conference that the billionaire couple had been slain, ending six weeks of confusion over their shocking demise—detectives had already interviewed 127 people (and counting), seized nearly 150 items for forensic analysis, and amassed 2,000 hours of surveillance footage from home and commercial security cameras near the crime scene. All told, 348 “investigative actions” connected to the file have been assigned and vigorously pursued.

“Facts guide our focus,” said Detective Sergeant Susan Gomes, the veteran homicide cop leading the Sherman probe. “Conjecture and speculation have no place.”

Gomes went on to tell reporters that her team has executed (or is in the process of executing) close to 20 judicial authorizations, including search warrants. Then, reading from her prepared remarks, she said this: “Legal complexities in some executions have been challenging given the litigious nature of Barry Sherman’s businesses, in particular the search and seizure of electronics in Barry Sherman’s workspace at Apotex.”

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From someone professing zero tolerance for speculation, it was a striking remark.

Was the officer suggesting that Sherman’s pharmaceutical company is somehow being uncooperative with police? Had Apotex—notoriously litigious, as Gomes accurately highlighted—gone to court to contest one of the search warrants? Why else would investigators be having such a hard time seizing electronic files from Sherman’s office?

“Let me be clear,” Jordan Berman, a company spokesman, told Maclean’s in an email. “Apotex has, and continues to fully cooperate with the Toronto Police Service in their investigation, and has offered its full support. At no time have we refused or challenged any authorizations.”

Mark Pugash, who speaks for the Toronto police, was equally insistent. “I had one or two people say to me: ‘Was that comment some oblique reference to difficulty with Apotex?’ ” he said. “Absolutely not. We’ve had a very productive relationship.”

The real difficulty with this particular search warrant, simply put, is solicitor-client privilege. As with any judicial authorization, police do not have free rein to grab what they please. Specifically, they are not allowed to access any document that discusses legal advice or out-of-court settlements—and because Sherman and his drug firm are entangled in their fair share of lawsuits (to put it mildly), it will take some effort to sort out which records are off-limits on the grounds of solicitor-client privilege.

RELATED: Barry Sherman’s death cuts short the lobbying probe against him

“Absolutely,” said Pugash, when asked if that was the challenge to which Gomes was referring. “You’re right on target.”

Typically, if the subject of a search warrant claims solicitor-client privilege over any records, those records are forensically sealed. For Apotex, however, the complexity doesn’t end there. As a party to so much litigation—more than 1,200 actions in Federal Court alone, plus hundreds more in other civil jurisdictions—the company has no doubt obtained confidential discovery in certain cases, as per “deemed undertaking” rules. Cops can’t access those third-party records, either.

“If you’re dealing with a company that’s got a ton of lawsuits going on, the company has an obligation to protect its legal rights,” says Anthony Moustacalis, a prominent criminal defence lawyer in Toronto. “So it’s not that they would resist the warrant, but they would have to call lawyers to say: ‘We want to make sure we’re only giving them what is related to their investigation, and nothing else.’ ”

Is counsel for Apotex working with police to identify such privileged documents? “Let me say this,” Berman told Maclean’s. “In any investigation there may be documents which are considered privileged and require special consideration.”

RELATED: Jonathon Sherman pays tribute to his parents Barry and Honey Sherman

That detectives are anxious to pore through Barry Sherman’s electronic communications is hardly surprising. Now that police are sure they’re dealing with a double homicide—and busy compiling a list of adversaries who might have wanted the couple dead—Sherman’s computer files could very well contain the case-breaking clue. Which begs the next obvious question: What if that clue is hiding in a privileged record, shielded from police because it’s considered solicitor-client communication?

This investigation hasn’t reached that point. Not even close. But if it ever does—if police come to believe that one of those privileged records could lead them to a killer (or killers)—prosecutors can ask a judge to order the documents unsealed.

It would be a tough sell, says Daniel Brown, a Toronto director of the Criminal Lawyers’ Association. “Our courts have stated that solicitor-client privilege will be set aside only where ‘absolutely necessary,’ ” he says. “Examples of rare instances include: in the interests of public safety, where there are real concerns that an identifiable individual or group is in imminent danger of death or serious bodily harm; to protect national security; or where an accused’s innocence is at stake and access is necessary to allow the accused to make full answer and defence.”

Michael Friscolanti can be reached at michael.friscolanti@macleans.rogers.com