Pubdate: Mon, 17 Feb 2014
Source: Law Times (Canada)
Copyright: 2014 Canadian Lawyer Magazine Inc.
Contact:  http://www.lawtimesnews.com/
Details: http://www.mapinc.org/media/3095
Author: Peter Small

LAWYER'S DRUG CONVICTION RAISING HACKLES OVER CUSTODIAL SEARCHES

Veteran Toronto defence lawyer Deryk Gravesande has been found guilty
of smuggling 58 grams of marijuana to a prisoner he was visiting in
the Toronto (Don) Jail, a verdict that has criminal lawyers raising
concerns about custodial searches.

Ontario Court Justice Wayne Rabley said he wrestled with the case,
looking for a way to conclude the Crown had not proved that
Gravesande, 61, handed his former client eight cellophane-wrapped
marijuana parcels and some rolled marijuana cigarettes.

But he said finding Gravesande guilty of one count of drug trafficking
was not difficult, based on the evidence, which was
circumstantial.

Rabley also criticized a correctional officer for lax search
procedures.

The small courtroom on the third floor of Old City Hall courthouse was
packed with Gravesande's supporters for the verdict Feb. 13, several
of them prominent criminal defence lawyers.

Gravesande looked shaken.

His lawyer, Frank Addario, said he is disappointed with the judgment
but it is premature to comment about a possible appeal. Gravesande
remains on bail and returns for sentencing May 14. He made no comment.

Federal prosecutor Roderick Sonley told the judge he will seek a
custodial sentence. The maximum is five years.

Anthony Moustacalis, president of the Criminal Lawyers' Association,
said outside court he too is disappointed by the verdict. Jails are
rife with drugs, he said, and if correctional officers don't follow
procedures for searching prisoners it leaves lawyers vulnerable to
unfounded accusations.

Gravesande visited his former client, Joacquin Rowe, on the evening of
Jan. 20, 2012.

Two correctional officers testified the defence lawyer smelled
strongly of cologne and marijuana as he approached the second-floor
visiting room to meet Rowe.

Officer Darryl Beaulieu said after smelling the odour he called his
supervisor for instructions. The supervisor told him to follow
standing orders, which require a prisoner be strip searched before and
after professional visits.

Written strip search rules stipulate the prisoner undress completely
and bend over, and the procedure is witnessed by a second employee,
and then recorded in a logbook. Beaulieu testified he asked Rowe to
strip down only to his boxers and noticed no drugs. Another officer
was present for only part of the search and it was not noted in the
logbook.

"It is difficult not to be a little critical of the failure of a
correctional officer to follow procedures where it is clear that there
would be significant consequences to a criminal defence lawyer if it
is that the correctional officer's suspicions were borne out," Rabley
said.

But a video showing Beaulieu talking to correctional officer Nicu Sava
and gesturing to his own nose, as if indicating an odour, corroborates
his account, the judge said.

Rowe and Gravesande met for 25 minutes in room 202.

Sava testified he too smelled a strong marijuana odour. He said the
visiting rooms are always searched before and after they are occupied.
He maintained others had done those searches in room 202 that day
because the logbook and security video showed he had not.

After the visit, Beaulieu conducted a second similar search of the
prisoner. He said he immediately noticed a black sock containing the
marijuana, plus a parcel of lidocaine (an anesthetic) tied to the
waistband of his boxers.

Rowe was not called by either Crown or defence.

Gravesande testified he would never bring drugs to the Toronto Jail
and every seasoned lawyer knew inmates were strip searched before and
after visits with counsel.

"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?" the judge said. "One might
similarly ask why would the mayor of Toronto smoke crack cocaine. . .
. It really isn't my position to speculate."

The judge said he can't point to any part of Gravesande's evidence
that is implausible or unbelievable.

"That does not mean I found his evidence compelling enough to say I
believed him."

The CLA president said criminal lawyers will be reluctant to visit
their clients in jails when procedures aren't followed. Moustacalis
said the guards could have questioned and searched Gravesande if they
suspected him of carrying drugs.

"The failure for them to follow procedures like that puts all criminal
defence lawyers in jeopardy in situations like this."

John Struthers, a CLA provincial director, said many lawyers are
advised to take witnesses to jail visits or speak to clients in an
impersonal way behind glass because "these accusations are almost
ridiculously easy to make and very hard to defend."

The Don Jail is no longer operational, but the new Toronto South
Detention Centre offers as one solution the videotaping of cells where
lawyers speak to their clients, but this raises solicitor-client
issues, Struthers said.

In 2010, Toronto lawyer Raymond Wai-Ming Li was disbarred by the Law
Society of Upper Canada following his conviction in 2004 for smuggling
heroin, hash, and marijuana to an inmate in the Toronto Jail. He was
sentenced to four years in prison.

A law society spokesperson said the society, in general, monitors
lawyers' situations when they are charged with an offence and will
likely also investigate Gravesande's situation.
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