Subject To Restrictions
The Law Society of Upper Canada Tribunal Hearing Division has imposed interim restrictions on a license of an accused attorney
The respondent’s licence to practise law shall be subject to the following interlocutory restrictions:
a. While in the course of practising law, Mr. Vijaya shall not to be in the presence of a person under the age of 18 years, unless also in the presence of another person over the age of 21 years, who has no criminal record and is aware of these proceedings and this order.
b. Mr. Vijaya shall not place personal data on any electronic devices used for the practice of law.
The facts
Mr. Vijaya was called to the bar in 1997. He is a sole practitioner working exclusively in criminal law. He shares office space with another lawyer in Toronto. He has no disciplinary history with the Law Society.
In 2013, Mr. Vijaya and his wife (who also is a lawyer) were experiencing marital difficulties. They have two young children. On October 10, 2013, while Mr. Vijaya was out of Ontario, his spouse reviewed and copied items stored on home computers and electronic devices in preparation for separation.
She discovered some content that appeared to be child pornography. She contacted the police. She made it clear to them that she did not wish to have this material in her home. Four computers and external hard drives were removed and an investigation commenced.
These devices also contained material related to Mr. Vijaya’s practice. As a result, solicitor-client privilege was asserted. A search warrant was granted, the devices sealed and a referee and forensic examiner appointed. Over several years, the Law Society monitored ongoing events with Mr. Vijaya’s co-operation.
On October 19, 2017, the Lawyer was charged with one count of possession of child pornography and one count of accessing child pornography contrary to ss. 163.1 and 163.1(4.1) of the Criminal Code, RSC 1985, c. C-46.
Mr. Vijaya was permitted to surrender to the police. That same day, he was released on his own recognizance with $2,000 bail without surety or deposit. That release was subject to the following conditions:
• do not apply for a passport;
• do not travel outside Canada;
• not to be in the presence of persons under the age of 16 years, UNLESS:
o in the presence of another person over the age of 21 years who has no criminal record and is aware of these charges;
o they are his own children and then in accordance with an order of the court with jurisdiction over the family law proceedings involving him and his ex-spouse or with the permission of the Children’s Aid Society;
• not knowingly possess or access pornographic images; and
• not access any peer file sharing service or use the TOR net.
The fact that Mr. Vijaya had been charged was reported on October 20, 2017 by a television news station, CP24, under the headline “Child porn charges laid against Toronto lawyer.” Global News also carried a report on the matter.
On October 23, 2017, Mr. Hutchison advised the Law Society of his client’s arrest. He stated, “Mr. Vijaya maintains his innocence and intends to vigorously contest these charges.”
The Lawyer was interviewed by Law Society investigator Nina Iwanowich on November 8, 2017. He provided information about his personal history, matrimonial situation and practice. Given that Mr. Vijaya had not yet received disclosure from the Crown, he was not able to speak with certainty to the allegations against him that are alleged to have occurred between January 1, 2008, and October 10, 2013.
The Lawyer acknowledged having viewed pornography in the past. However, he denied accessing child pornography or having anything to do with its creation or any activities related to it. He stated that he had no idea how any such material might have come to be on the computers.
The Lawyer received some disclosure from the Crown in late December of 2017. However, as of the date of the hearing of this motion, there has been no consent from the Crown to provide a copy to the Law Society.
Ms. Iwanowich spoke to Crown Counsel Lisa Henderson on December 4, 2017, and January 17, 2018. According to the Crown, the material at the centre of the criminal allegations was mixed in with the Lawyer’s work files and he appeared to have been “downloading the same onto devices.” It was described as being “not a large seizure.”
It included 53 video files that were not of concern and 52 other files that technically met the definition of child pornography, but that the Crown did not intend to pursue. The balance was described as follows:
• three text files that met the definition of child pornography – there were 31 image files including duplicates;
• images including a wide range of nudity, with pre-pubescent girls engaged in sexual activity with grown men;
• children engaged in sex acts with each other and photos of their dominant sexual characteristics;
• the youngest age of a subject depicted in the material is approximately 5 years old – there is a file name referring to a child aged 5;
• Most of the subjects depicted looked to be approximately 8-12 years old;
• There was no bondage, babies or bestiality.
Shortly after these criminal charges were brought against Mr. Vijaya, we were advised that there were additional proceedings relating to his family. Ms. Jarvie made it clear that these are not being relied upon for the purposes of this motion.
Global News reported on the criminal case. (Mike Frisch)