Lawyers In Lockdown

Posted by  on February 22, 2016
Lawyers In Lockdown

Recently, two Toronto criminal lawyers have learned the hard way to walk in their clients’ shoes. Each was charged with serious criminal offences, and subjected to the humiliation of an arrest, embarrassing publicity, and the high stakes of trying to defend themselves against the accusations of the state.

When a lawyer visits his client at the jail, s/he has the privilege of a meeting the client in privacy and in person, not behind a Plexiglas barrier. For security reasons, to ensure that drugs, weapons or other contraband are not smuggled in to the client, security staff search the room and the inmate before and after each visit.

Deryk Gravesande, a veteran criminal lawyer, was charged with smuggling drugs into the Toronto (Don) Jail for a former client during a professional visit. The marijuana was found on the client after the visit, and the staff concluded that it must have come from the lawyer.

It is extremely unlikely that a lawyer would throw away his liberty, his career, and his reputation to slip his client some weed. What possible benefit could the lawyer derive from doing such a thing? Despite this absurd scenario, not only was Mr. Gravesande charged, he was also convicted by a judge after a trial.

The Crown’s case was based on the testimony of two correctional officers who testified that they noticed a strong smell of marijuana emanating from the appellant as he proceeded through security on the second floor of the Toronto Jail. However, security at the first point of entry in the jail did not detect the odor of marijuana on the appellant. In addition, one of these officers was stationed at a table approximately 10 to 20 feet away from the hallway that the appellant passed through. The same officer stated during his examination-in-chief that he searched the interview room before and after the inmate’s visit, as per standard protocol. Nevertheless, once he was shown a video recording of the room and the logbook for recording searches that revealed the contrary, the officer admitted that he had not searched the room.

These facts undermined the credibility of the officer as a Crown witness. Failure to follow proper protocol was also a concern in regards to the credibility of another witness, the correctional officer who ultimately found the drugs on the inmate. For instance, upon conveying his suspicion to his supervisor that the appellant was carrying drugs, Beaulieu was instructed to follow the Standing Orders. The Standing Orders require that a strip search be conducted while the inmate is completely undressed and bent over to permit visual inspection of body cavities. Furthermore, two officers must also be present during the course of the search, which occurs before and after every professional visit. The testimony at trial revealed that the manner in which this officer conducted strip searches was not in accordance with the Standing Orders. He stated that in order to maintain the inmate’s dignity, he allows them to keep their undergarments on and instead asks them to “run their thumbs along the rim of their boxers” so that if something is being concealed, it will fall out or be seen. Surveillance footage showed that this part of the search only took three to four seconds. Therefore, not only he spend a minimal amount of time searching the inmate, but he also conducted the first search without the presence of another officer.

The trial judge chose to overlook these serious flaws in the Crown’s case.

Gravesande testified in his own defence. He had been practising criminal law for 22 years and maintains a good reputation within the legal community. He explained that every experienced criminal lawyer is aware of the fact that inmates are strip searched before and after visits with lawyers. Therefore, it made no sense that a lawyer like Mr. Gravesande would be careless enough to risk the extremely serious consequences of trafficking drugs into a jail. Despite this compelling lack of motive, the trial judge said that Gravesande’s testimony lacked strength and pointed to his depression and inability to recall his exact income in support of this conclusion.

Fortunately, the Ontario Court of Appeal recently overturned the decision, and found that the judge had improperly glossed over the weaknesses in the Crown’s case, and had viewed Gravesande’s evidence too negatively. This decision follows the rule that a trial judge must apply the same standard to the assessment of prosecution and defence evidence. A failure to do so can lead to a miscarriage of justice. The trial judge’s apparent leniency towards the Crown’s evidence, namely the testimony of the correctional officers, compared to his more stringent approach to the defendant’s evidence led the Court of Appeal to order a new trial.

Another lawyer ended up on the wrong side of the law as well. Laura Liscio, a young and well-regarded criminal lawyer, was representing a client in custody. She wanted to make sure her client could change into proper clothes for his trial so that he would not look guilty wearing his bright orange prison jumpsuit. She collected the clothes from the client’s family, as court security required, and turned them over to the court officers. They found drugs concealed in the clothing and immediately arrested Ms. Liscio, and paraded her in in a “perp walk” through the courthouse in handcuffs, before bundling her into a police cruiser to get booked at the station.

Fortunately for Ms. Liscio, as a result of strong and effective advocacy by her lawyer, Ms. Liscio’s charges were eventually dropped. With good reason: she did everything the security policy required of her. It was not her responsibility, nor did she have the training and experience, to search the clothing for contraband. She was the victim of this smuggling attempt, not the perpetrator.

However, Ms. Liscio and Mr. Gravesande have both suffered enormous damage to their careers as a result of the publicity surrounding their arrests. This situation serves as a cautionary tale: anyone can be arrested and charged by the police, and no one is immune from the law, or its biases and mistakes. A lawyer can be wrongfully convicted just like anyone else. And even a criminal lawyer needs to have a competent, experienced lawyer by his or her side to ensure that s/he receives a fair trial.

These true life cases also show that Justice is not something that rains down naturally upon the innocent, or that the truth will emerge organically: Justice must be fought for, and won, in each and every case.

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Arun S. Maini, lawyer and founder of The Defence Group, has practised criminal law since 1995. He’s a graduate of the University of Toronto and Dalhousie University Law School. After completing his articles at a Bay St. law firm, Mr. Maini joined the federal Department of Justice as a prosecutor of drug trafficking, tax evasion, and immigration fraud cases in Toronto, Brampton and Vancouver. In 1999, Mr. Maini transferred to the provincial Crown attorney’s office in Brampton, where he prosecuted a wide range of criminal offences, from theft to murder. In 2003, Mr. Maini left the government to establish The Defence Group. Mr. Maini handles all criminal offences and regulatory prosecutions.

Over more than 25 years as a criminal lawyer, Mr. Maini has prosecuted and defended hundreds of criminal cases, and has extensive jury trial experience. Mr. Maini has also lectured at The Advocates’ Society and has taught advocacy at the Law Society and Osgoode Hall Law School’s Intensive Trial Advocacy program. Maini appears occasionally in the media to comment on criminal law – see examples from the CBC, the Toronto Star, and the National Post.

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