Cookie comment lands assistant Crown in hot water
Calling a customs officer the cream in an Oreo cookie has landed an assistant Crown attorney in some hot water.
Greg Smith made the comment — it resulted in a complaint to the Ontario Law Society — during the discovery portion of a preliminary hearing for Jahrell Lungs, a Brampton man arrested at the border on drug and guns charges, in Ontario Court of Justice in St. Catharines in August.
Smith was trying to determine the movements of Canada Border Services Agency officer Duncan Small, and Lungs, who is black, as well as the three other black occupants of the car, during the crucial minutes after the vehicle was sent for a secondary inspection.
“OK. So you’re like an Oreo cookie,” he said to Small, who is Asian. “You’re the cream in the middle, basically. Would that be a, would that be …”
“I can’t, I can’t comment on that,” Small said.
The exchange caused laughter in the St. Cathrines courtroom, but not from lawyer V.J. Singh or his client.
“I had to compose myself to continue,” Singh said. “I waited for the examination and crossexamination to finish. When there was a recess, I reached over to my client and asked him if he was as offended as I was.
“He was behind me in custody flanked by two officers. He saw the entire courtroom and could hear the laughter when it came out. He was particularly offended.”
Singh conferred with his client and asked for Smith to be removed from the case.
Neither Crown attorney Michal Sokolski nor Smith responded to requests for an interview for this story.
Singh is waiting to see if any action is going to take any action.
Singh said his client is a young black man facing significant jail time, and lawyers sometimes have a “distorted sense of humour” from working long hours on difficult subjects, the gallows humour ends at the door to the courtroom.
“I was focused on my notes,” Singh said. “He (Smith) was
standing to my right at the lectern. I didn’t look at his expression at all. I was in shock. I’ve never heard anything like that — except from the prisoner’s box when an accused went off on a rant.”
A spokesperson for the Attorney General, Brian Gray, replied to a series of questions directed to the ministry.
Gray said the ministry doesn’t comment on individual complaints referred to the Law Society of Ontario. He said is up to the local Crown attorney to deal with concerns raised about his assistants, but if the issue is a human resources matter, the information would remain confidential.
In a case where a local Crown attorney did find one of his assistants had fallen short of the expected standards, he or she could take remedial or disciplinary action.
Singh left the courtroom during the recess and talked to some colleagues about what happened. He said they were as dumbfounded as he was.
Singh returned and spoke briefly with the federal Crown attorney on the case.
“Smith heard that, and went to Sokolski right away,” Singh said. “I had sent Smith a message and told him the case wasn’t going to continue until I spoke to him. He came up, and we made submissions on the record.”
Smith told the judge there were no racial overtones to his comment.
“It was a poorly, poorly worded analogy by me, obviously,” he said. “Anybody that knows me knows I’m not of that, of that ilk, and I have to apologize for a poorly, poorly worded — as you will see, your honour, it had nothing to do with anything of a racist nature or anything of that nature. And as I say, I apologize to Mr. Lungs if he took it that way. That wasn’t how it was intended. And I apologize to Mr. Singh. It wasn’t how it was intended.”
The hearing is proceeding. Singh said his client doesn’t believe the criminal justice system will treat him fairly, something the Charter of Rights and Freedoms guarantees.
“When comments like that are made, how is he supposed to feel?” Singh added.
Lungs, who is in custody, wrote a letter to the law society. He said he has experienced racism in different forms for most of his life.
“It’s clear to me that I’m in a racist town by the Nazi symbols on my walls, and now I feel as if I now am fighting against a secretive, racist, justice system as well,” he wrote. “I am just as appalled as everyone else by the comments made, and I find absolutely no humour in this inside joke the Crown attorney Greg Smith and his colleagues found so funny.”
If a hearing panel establishes that a lawyer breached the Law Society Act and the society’s rules of practice and procedure, the panel can impose a penalty. The penalty can range from reprimands or suspensions to revocation of the lawyer’s licence.