As lawyers, we hold ourselves to a higher code of conduct. So when that code is called into question, for example through allegations of impropriety around drug trafficking, they create cause for concern for the entire bar.
In 2012, Deryk Gravesande was charged with trafficking after approximately 58 grams of marijuana and a parcel of lidocaine was found on his former client, who was incarcerated at the time. The guard claimed to search the prisoner both prior and following his meeting, and it was in the second search that the drugs were found in the prisoner’s underwear.
He was convicted of the charge in 2014. He is an experienced defence lawyer, well known to the local bar, which gave much pause to his colleagues.
This week the Ontario Court of Appeal reversed that decision based on a stricter level of scrutiny provided to the accused’s testimony. They also found an error in law in refusing to review certain third-party documents.
The documents were related to drug smuggling generally by staff and employees at the Toronto jail. These records were likely relevant to test the Crown’s theory, and could not be characterized as a fishing expedition or unmeritorious request.
The trial judge described the accused’s testimony as follows:
[The appellant] testified on his own behalf. [The appellant] was at the time of the trial 61 years of age and had practised as a lawyer for 22 years. He explained that he did not and would never have brought drugs into the Toronto Jail. He testified that every seasoned criminal lawyer knew that inmates were strip searched before and after visits with lawyers. According to Mr. Paul Copeland, [the appellant] is a lawyer who is a man of good reputation in the community as well as within the legal fraternity. Why, the question must be asked, would a lawyer who is in good standing, be so foolish as to take the chance to bring drugs into a jail and give them to a former client?
Despite this testimony, the trial judge identified several “weaknesses” in the testimony. The Court of Appeal reviewed these findings and found that many of them were speculative. Even more pertinent was that the trial judge did not focus on or consider weaknesses in the Crown’s case. In particular, the accused was not present during the search, and the guard did not search the prisoner’s underwear, despite instructions and orders to do so. The guard’s suspicions were aroused by a vague description of the smell of marijuana, which he claimed arrived with the accused.
The Court referenced authorities indicating how difficult it is to make the “different standards of scrutiny” argument on appeal, as credibility attracts high level of deference and appellate courts are rather skeptical of such arguments. Given the level of deference, an appellant usually requires something clear in the reasoning or record to displace this deference.
Based on the following passage in R. v. T.T, the Court ordered a new trial:
If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence, then, in my view, it must follow that the appellant has not received a fair trial, and was the victim of a miscarriage of justice. This is so, even if the evidence, as actually adduced at trial, was capable of supporting a conviction.
 The same rationale applies and the same result must flow, in my view, in those rare cases where – as here – “the appellant [can] point to something in the reasons of the trial judge or perhaps elsewhere in the record that make[s] it clear that the trial judge [has] applied different standards in assessing the evidence of the appellant and the complainant”: Howe, at para. 59. In such a case – even where the record may otherwise be capable of supporting a conviction, had the evidence been properly assessed and the complainant believed – the appellant has not received a fair trial and has thus been the victim of a miscarriage of justice.
The smell of this case, which may have been tenuous to begin with, will be put to rest for now.