Pubdate: Sun, 15 Nov 2015
Source: Toronto Star (CN ON)
Copyright: 2015 The Toronto Star
Contact:  http://www.thestar.com/
Details: http://www.mapinc.org/media/456
Author: Jacques Gallant
Page: GT1

APPEAL COURT OVERTURNS LAWYER'S CONVICTION

Original finding that he smuggled drugs into Don Jail raised questions
about security protocols

Lawyer Deryk Gravesande's conviction for smuggling drugs to a former
client at the Toronto (Don) Jail - a case that shocked and outraged
the city's criminal bar - was overturned Friday by the Ontario Court
of Appeal in a decision lambasting the trial judge's reasoning.

In ordering a new trial, the top court found that the judge at
Gravesande's 2014 trial applied a stricter level of scrutiny to
Gravesande's evidence than to the Crown's witnesses - correctional
officers who admitted that they did not follow proper protocol for
searching the interview room and Gravesande's former client, Joacquin
Rowe, when the lawyer visited in January 2012.

"This court has repeatedly stated that it is an error of law for a
trial judge to apply a higher or stricter level of scrutiny to the
evidence of the defence than to the evidence of the Crown," Court of
Appeal Justice Gladys Pardu wrote for a unanimous three-judge panel.

The judges also found that Ontario Court Justice Wayne Rabley should
have granted Gravesande's request for the production of government
records related to the frequency and prevalence of drug smuggling at
the jail.

"There is a reasonable possibility that the information was logically
relevant to an issue at trial: did (Gravesande) bring drugs to Rowe,
knowing that Rowe would be searched before and after the visit, or was
Rowe carrying those drugs on his person when he came to the interview
room," Pardu wrote.

A spokeswoman for the Public Prosecution Service of Canada, the
federal agency that handles drug offences, said "we expect that there
will be another trial in this matter," but that a final decision on a
retrial will be "carefully" considered.

"This has been an extremely long road for Deryk, who has committed his
entire career to helping the most marginalized," his appeal lawyer,
Marie Henein, told the Star. "He is extraordinarily well loved and
well regarded by the criminal bar and Crowns alike. It is our hope
that he can move forward and put this behind him."

A lawyer for more than two decades, Gravesande was convicted in
February 2014 and later sentenced to two years in prison.

He signed an undertaking not to practise law following his May 2014
sentencing and has since been suspended administratively, said a Law
Society of Upper Canada spokeswoman

It's unclear how much time he actually served pending his appeal. He
was accused of smuggling 58 grams of marijuana in eight
cellophanewrapped packages as well as a parcel of lidocaine, some
rolled marijuana cigarettes and a piece of cellophane with lubricant
on it.

"There is no question that this disposition will be crushing upon this
man. He will probably be disbarred," Rabley said at his May 2014
sentencing. "He has been publicly shamed. His health has suffered. He
will now be subjected to the same environment that he sought so hard
to prevent others from experiencing."

The Court of Appeal's decision to overturn Rabley's verdict was
praised by Toronto criminal defence lawyers, who said the case
highlights the dangers faced by attorneys when they visit their
clients in prison.

"It seems defence lawyers are easy targets for the correctional
officers to pin the blame, when really the problem is inmates
themselves are bringing in drugs upon arrest, and jail guards have
been found guilty of bringing in drugs to the jail," said lawyer
Daniel Brown.

"Defence lawyers aren't risking their careers to deliver $100 worth of
marijuana in the jails. It's simply not happening."

When Gravesande arrived to visit Rowe, correctional officer Darryl
Beaulieu believed he smelled marijuana and suspected Gravesande was
carrying drugs. He contacted his supervisor and was told to follow the
"Standing Orders," which require a search of the interview room and a
strip search of the inmate, before and after the lawyer's visit,
according to the appeal decision.

But Pardu noted that Beaulieu only briefly handled Rowe's orange
jumpsuit before the visit, handing it back to him within three to four
seconds, instead of conducting what should have been a thorough strip
search. Another officer was nearby but did not observe most of the
search - as shown on surveillance footage - therefore going against
protocol.

Another officer, Nicu Sava, testified at the trial that he had
searched the interview room, but admitted that he had not when
confronted with surveillance footage.

After Gravesande's visit, Rowe was searched again and the guards found
a black sock containing the drugs inside his underwear.

And yet Rabley sided with the correctional officers over Gravesande,
who took the stand. While he found that Sava was "shaping his
evidence," he still stated that Sava was "also telling the truth about
the events that unfolded when (Gravesande) arrived."

The judge also dismissed concerns about Beaulieu's testimony, saying
"in fairness to (Beaulieu), this was a challenging situation that he
could not have contemplated in advance," and that "(to) err is human."

But when it came to Gravesande's testimony, Rabley noted "weaknesses"
and "stated that (Gravesande) was not compelling enough" to leave him
in a state of reasonable doubt, Pardu wrote in her appeal decision.

Among the weaknesses listed by Rabley: Gravesande was taking medication 
for depression at the time of his prison visit; he couldn't remember his 
exact income; and he had visited the prison carrying only a "slender file."

Pardu and her colleagues on the appeal panel - Associate Chief Justice
Alexandra Hoy and Justice Karen Weiler - were having none of it.

"With respect, it is difficult to see how any of the issues identified
by the trial judge constitute 'weaknesses' in (Gravesande's)
testimony," Pardu wrote.

- - with files from Jane Gerster
- ---
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