The tactics of Gary Batasar, the lawyer who revealed Crown allegations that his client, 25-year old restaurant worker Steven Chand, intended to take politicians hostage, murder them, and blow up the CBC''s Toronto headquarters as part of a massive terrorist plot, is under fire from his criminal law colleagues.
"There's an allegation that my client personally indicated that he wanted to behead the prime minister of Canada," Batasar told media on June 6.
But Rocco Galati -- one of the lawyers with the most experience in terrorism-related cases in Canada -- questions tactics of this kind.
"Reading unsubstantiated allegations is not my way of doing business at such an early juncture in the proceedings," says Galati, who represents another of the 17 accused.
Arif Raza of Mississauga, who represents 19-year-old student Saad Khalid and who has practised criminal law for over 25 years, says he saw no reference to a beheading in the synopsis the Crown provided to him.
"I would expect a far more responsible statement not only from defence counsel, but also from any human being," he told Law Times. "I find the statement made [about the beheading] quite disturbing."
A top criminal lawyer, who spoke on condition of anonymity, was of the same mind.
"Blurting out the government's theory to the media is puffery," the lawyer said. "I'm not saying there's not a place for it, but it should have been done in a context that would not create the headlines that it did."
For his part, Batasar, a criminal lawyer since 1998, is adamant that he did the right thing.
"These are extraordinary times and extraordinary allegations that call for an abnormal response," he said.
"Niceties have to go out the window when the charges against the accused are drawing global media to Peel Region.
"Defence counsel should not just stay silent in these conditions. This is not a case that calls for hush-hush."
Batasar says the media's treatment of his remarks and the criticism of his action are "ridiculous." He points out that the issue first arose in the courtroom when he asked prosecutor Jim Leising whether he had any evidence to substantiate the sensational allegations in the synopsis. He says he had no choice but to respond to the media crush that followed outside the courtroom.
Some well-known members of the defence bar, also speaking off the record, questioned why counsel in the terrorism case, who have been complaining mightily of restricted access to their clients, have not proceeded with a Charter-based habeas corpus application.
"There's no sign of action," said one criminal lawyer.
The action, it seems, is at the Maplehurst jail, where most of the accused are being detained.
"One hour ago, I went to see my client," Raza said. "My client, who has been in solitary confinement, was in chains and handcuffs. Two guards, completely camouflaged, completely masked, and carrying guns, literally held him up as they brought him to me. And the handcuffs were so tight it was a difficult maneuver for him to hold the phone that he needed to communicate through the glass."
Still, Raza will only say that habeas corpus is "entirely possible."
Batasar says this isn't the right time for habeas corpus.
"First we are trying to get all the defence lawyers to sit down and think about issues and speak with one voice," he said.
That's another task that may be easier said than done: it's not even clear that all accused have counsel. And it doesn't appear as if relations among some of the others have got off to a good start.
One defence counsel said another criminal lawyer had "touted" the multiple clients he was representing.
"[He] went down to the jail, saw five or six of the clients -- including my client -- without invitation and then showed up in court purporting to represent them all," the lawyer claims. "Only after I indicated that I was representing this particular accused did he resile from that position. I can tell you that my client's family was not amused."
Galati says the detainees' lack of phone access has caused the problem.
"Obtaining counsel is then left completely to family members, many of whom are not adept at dealing with criminal lawyers," he says.
A senior criminal lawyer familiar with the case agrees.
"The accused aren't criminals in the usual sense, because many of the people lawyers see have lawyers in mind all the time," he told Law Times. "And it seems that most of the families of the accused have no reason to have had connections with criminal lawyers either. So getting a lawyer is a more difficult proposition than it might be in the usual type of case."
What is noticeable as well is the absence of the big names in the criminal bar -- names like Edward and Brian Greenspan, Clay Ruby, Alan Gold, and John Rosen.
"I'm sure they would like the case," Batasar says.
But Ruby, says the length and complexity of the proceedings will make the case a "financial disaster" for the lawyers involved.
"However," he adds, "I have no doubt that, if called upon, the foremost members of the bar will come forward, even at great financial sacrifice to defend the rights we all care about."
The degree of that sacrifice depends to some extent on the accuseds' financial circumstances, which in turn raises the question of the strain such a case may put on the resources of Legal Aid Ontario.
"We can cope with this case so long as the federal and provincial government respond to the strains it creates," says Janet Leiper, LAO's chairwoman. "It's too early to tell how everything will play out, but the lengthier and more complex it gets, the more important it is that we have the resources."
In 2005, the provincial government announced a package of $800,000 to help legal aid deal with "guns and gangs."
"We're already concerned whether that sum will be enough to cover the ordinary guns-and-gangs situations that come under provincial jurisdiction, let alone federal prosecutions," says Leiper.
So she has a message for the lawyers already on the case and those who may have to decide whether to get involved: "I appreciate that this case may have a lot of motions relating to the interesting and special powers around prosecutions of this kind.
"We're going to control those through our case management system, because there are no unlimited tickets through legal aid."
Forewarned is forearmed.
