Should lawyers be held to a higher standard when charged with a crime?

Photo of a gavel and handcuffs.
Photo of a gavel and handcuffs. Stock photo of a gavel and handcuffs from iStock/Getty Images.

It’s often joked about, but this topic is no joke to lawyers: when lawyers are accused of committing crimes, the whole profession suffers.

The public sometimes negatively views lawyers, and a lawyer being accused of wrongdoing just reinforces that view. It’s neither fair nor correct, but it is what it is.

Lawyers have a heightened professional duty to uphold the law, more so than a regular person, because lawyers take an oath to uphold the law and their profession.

At threat is not just the profession’s reputation though. When a lawyer is accused of a crime, the individual lawyer has a lot to lose as well, including his or her license and, all the work that went into becoming a lawyer and establishing a practice – next to his or her freedom. That is a bitter pill to swallow for any lawyer.

All of the above, and more, can be seen in the case of R. v. Gravesande, a recent Ontario Court of Appeal decision.

Deryk Gravesande is a criminal lawyer who was convicted by an Ontario trial court in 2014, of one count of trafficking drugs into a Toronto jail for his former client, Joacquin Rowe.

Gravesande appealed and won his case last week, and the court of appeal has ordered a new trial.

The main issue of why Justice Gladys I. Pardu, one of the appeal judges in Gravesande’s case allowed the appeal and overturned the trial judge’s decision is because she found that the trial judge had applied a “stricter level of scrutiny to the appellant’s [Gravesande’s] evidence than to the prosecution witness.”

Pardu pointed out that the trial judge seemed to give more credence to the two prison guards than Gravesande, even though there were problems with the guards’ own conduct.

One of the prison guards, Darryl Beaulieu found drugs on Rowe. Beaulieu claimed the he conducted searches on Rowe, both before and after Gravesande’s visit. The drugs were discovered in a sock which was concealed in Rowe’s underwear after Gravesande’s visit.

However, the appeal judge found a few weaknesses with the search that Beaulieu conducted:

  • The first search did not follow prison protocols; and more importantly
  • There was no full strip search conducted as required by the standing orders and which Beaulieu’s supervisor told him to conduct.

Another weakness in the Crown’s case was that the second guard, Nicu Sava, testified that the interview room had been searched, but there was evidence to the contrary. Sava then admitted the interview room had not been searched.

Gravesande had denied that he had smuggled the drugs to his former client. To support his case, he asked for production of third-party records that would show the prevalence of drug smuggling into the Toronto Jail. However, the trial judge rejected the request. Pardu found that these records would have likely been relevant.

Pardu found it unacceptable for Gravesande’s evidence to be held to a higher and stricter standard than that of the guards – whose evidence was problematic. She stated that “This court has repeatedly stated that it is an error of law for a trial judge to apply a higher standard or stricter level of scrutiny to the evidence of the defence than to the evidence of the Crown.”

Pardu also found that some of the trial judge’s observations were based on speculation, and this was not acceptable.

Did Gravesande being a lawyer perhaps have something to do with his side being held to a higher standard? It’s a possibility. However, it can’t be denied that the trial judge’s verdict was devastating for him as a lawyer with two decades of practice to his name.

The trial judge sentenced him to two years in prison and he has been administratively suspended from practicing law, according to the Law Society of Upper Canada.

So, then should lawyers be held to a heightened standard when it comes to professional behaviour and upholding the law? Absolutely. If they truly brought the profession of law into disrepute, because of wrongful and even criminal actions, then they should be punished by their professional body – and the law, if applicable.

However, should evidence against them be held to a higher standard than that of a regular citizen in a court of law? No. Evidence has to be equally weighed, whether it is introduced by the Crown or the defence, regardless of who the accused may be. Our justice system is supposed to see everyone as equal before the law.

That includes lawyers.

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