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
“Defence lawyers aren’t risking their careers to deliver $100 worth of marijuana in the jails. It’s simply not happening.” DANIEL BROWN LAWYER