The View From Up North: Court Of Appeal Benchslaps Trial Judge

It seems that the trial judge suffered through a herniated brain cramp while presiding over this trial.

In my nightmare, I’m in jail.

That’s it.

No straight-out-of-the-movies encounter with an impossibly large and tattooed cellmate named Mama. No crazy encounters with sadistic guards. It’s definitely not the type of nightmare where I’m the only male Orange is the New Black inmate…

I’m simply… in jail.

As a lawyer, going to jail is one step removed from dying. It means I failed the system I have believed in since childhood. I failed in my duty as an officer of the court. I did something deplorably stupid. How do you explain to your children that you did something so idiotic that society deems it necessary to segregate you from your children?

Now, let’s add a layer. What if you’re a wrongfully convicted lawyer? But, not just any lawyer—a criminal lawyer who has spent his career trying to help the forgotten and downtrodden?

Meet Deryk Gravesande. He’s a long-time criminal lawyer in Toronto. Deryk was charged in 2012 with trafficking after he was accused of delivering approximately 58 grams of marijuana and some other contraband to his client, then a resident of the infamous Don Jail (bad place, man, bad place).

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In 2014, Justice Wayne Rabley convicted Deryk on his charges. At that moment, Deryk faced disbarment and, worse, a possible five years in jail.

Living… nightmare.

Here’s the troubling part—it appears Justice Rabley suffered through a herniated brain cramp while presiding over this trial. The facts:

  1. Deryk attended the Don Jail to visit his client.
  2. He walked past two different guards who noticed nothing wrong.
  3. He later interacted with a guard, we’ll call him Guard Abbott to protect his innocence, who thought he smelled the odor of marijuana on Derek.
  4. On that basis, Guard Abbott contacted his supervisor, who ordered him to follow the Don Jail protocol for such concerns. The protocol requires guards to conduct a thorough and intimate search of the prisoner both before and after meeting with his lawyer. Additionally, the guards are required to thoroughly search the interview room used by the lawyer and his client. They do not get to search the lawyer, however.
  5. Guard Abbott’s colleague (we’ll call him Guard Costello) testified he conducted a thorough search of the interview room. Confronted with surveillance footage to the contrary, Guard Costello recanted his story and conceded he did not search the interview room prior to Deryk’s meeting.
  6. Guard Abbott was the guard assigned to thoroughly search the prisoner prior to the meeting. Guard Abbott did a less than thorough search, to say the least. Additionally, the protocol requires a second guard to observe the search. Surveillance footage showed a nearby second guard who did not pay much attention to the search of Deryk’s client.
  7. After Deryk left, the guards conducted a truly thorough search (i.e., they did their jobs) and found marijuana hidden in prisoner’s underwear.
  8. Deryk testified at his own trial where he denied ever smuggling drugs into the jail.
  9. Nobody saw drugs on Deryk.
  10. Nobody saw Deryk hand drugs to his client.

How in the world could a judge possibly convict on that fact pattern? Highly circumstantial with tons of holes. It doesn’t make sense.

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Here are two further things to consider: The marijuana had a street value of $100 (that’s Canadian, so like US$15). Is it even remotely plausible that a criminal lawyer who was described by his advocate, Marie Henein, as “extraordinarily well loved and well regarded by the criminal bar and Crowns alike” would throw his life/career away over $100?

Would he risk a living nightmare by doing something so stupid?

Second thing, Deryk was in and out of the Don Jail all the time. He knew that prisoners are subject to search both before and after meeting with him.

Incompetent guards, ignored protocols, and no drugs ever found on Deryk, a well-regarded criminal lawyer who knew the consequences and difficulties of smuggling drugs into the Don Jail.

I can’t wrap my head around how Justice Rabley could botch this so badly. This is an epic fail (as my young son would say). I mean, I have one possible theory—perhaps Justice Rabley was smoking something on the bench considerably stronger than the substance he convicted Deryk of trafficking? (That’s a joke, by the way, just in case there’s any doubt.)

I digress. His Honour ultimately sentenced Deryk to two years in jail.

That’s when sanity returned from whatever discount vacation it took from Justice Rabley’s courtroom. Deryk appealed and, guess what? In a unanimous decision, the Court of Appeal tossed out the conviction for several judicial errors and ordered a new trial.

Justice Gladys Pardu, writing for the court, reviewed the facts and pointed to many instances where she thought the trial judge got it wrong. Although she did not take the trial judge specifically to task for his ruling, she penned this simple sentence: Deryk Gravesande was a “victim of a miscarriage of justice.”

That’s a succinct judicial way of confirming Justice Rabley’s epic fail.

I often write about lawyers gone bad in this column. In this case we have to flip the script. Deryk’s reputation took a massive hit. He had to stop practicing law during the whole ordeal, and faced jail. Anybody who has ever been subjected to litigation knows it drains both the body and the spirit.

Although the Court of Appeal ultimately got it right, it didn’t happen until after Deryk was convicted and sentenced to jail. I don’t believe vindication can wipe away the stress and pain of the ordeal.

Most importantly, if a miscarriage of justice can happen to Deryk Gravesande, it can happen to anybody.

Not a comforting thought.

That’s the View From Up North. Have a great week.


Steve Dykstra is a Canadian-trained lawyer and legal recruiter. He is the President of Steven Dykstra Law Professional Corporation, a boutique corporate/commercial law firm located in the greater Toronto area. You can contact Steve at steve@stevendykstralaw.ca. You can also read his blog at stevendykstra.wordpress.com, follow him on Twitter (@Law_Think), or connect on LinkedIn (ca.linkedin.com/in/stevedykstra/).