Law Times

LaW TIMeS • NOVeMBeR 23, 2015 Page 5 www.lawtimesnews.com a surprise to see the conviction overturned based on what he saw as f lawed testimony and errors in accept- ing it. "It's unsatisfactory that these types of mistakes can happen," he says. "The implications it has for lawyers going to these in- stitutions are fairly serious. No matter how rare it may be, it can be very devastating to find yourself alone with somebody who has a reason to bring contraband into prison and they blame you." Moustacalis says it's an issue that's forcing many law- yers to shy away from conducting face-to-face meetings with clients in custody and "do it through the glass" in- stead. But he notes doing so limits their ability to speak fully about important matters and share documentation and dehumanizes the client. Ontario Court Justice Wayne Rabley found Graves- ande guilty of the charge in February after finding that the lawyer had handed his client eight cellophane- wrapped marijuana parcels and some rolled marijuana cigarettes while in prison. He received a two-year sen- tence as a result. During the case, two correctional of- ficers testified Gravesande smelled strongly of cologne and marijuana as he approached the visiting room to meet with his client and noted they had orders to strip search the prisoner before and after the lawyer's visit. Written rules stipulate that the prisoner must undress completely and bend over while a second employee wit- nesses the search with the information recorded in a log- book. But one of the officers testified he had asked the prisoner to strip down only to his boxers and noticed no drugs during the first search. Another officer was only present for part of that search and it wasn't noted in the logbook. Once Gravesande's meeting was over, officers dis- covered a black sock containing the marijuana, plus a parcel of lidocaine (an anesthetic) tied to the waistband of his boxers, during a second search of the prisoner. Al- though Rabley found the correctional officers hadn't fol- lowed proper strip-search procedures before the client saw Gravesande, the judge nevertheless said there was enough circumstantial evidence to convict the lawyer. The appeal court ruled that the trial judge had ap- plied uneven scrutiny to the evidence and had given too much weight to the testimony about the odour. The appeal court also ruled that the trial judge had erred by not allowing a third-party record application by the de- fence seeking information on drug activity at the facil- ity. Hutchison says it was an application the court should have allowed in order to shed light on the problem of drugs reaching prisoners. "In circumstances like this, a reasonably tailored request for records related to how drugs get into an institution like this is an application the court should normally allow because it provides the essential back- ground to understanding whatever value there is to the inferences the Crown wants to see drawn," he says. "The trial judge wouldn't even go past the first stage of the O'Connor test and find that the documents were likely relevant and the Court of Appeal has said quite clearly that those documents were likely relevant," he adds, citing R. v. O'Connor. Lawyer Jonathan Rosenthal, who sat in support of Gravesande during the bulk of the proceedings, calls his colleague's conviction "a miscarriage of justice" and says the ruling is a stern warning to institutions to fol- low procedure. He says lawyers must be mindful during their visits of the fact that institutions may not always follow their procedures to the letter. "The lesson is jail guards have to do their job properly. These procedures are in place to make sure these mis- carriages of justice, like this one against Mr. Gravesande, don't happen," he says. Although the Crown didn't respond to comment by press time, Hutchison suggests a new trial is unlikely. "It's certainly a case where the Crown should have a hard look before it moves forward. It's fair to say what the Court of the Appeal is saying is that there was reason- able doubt on this record and if you take that view of it, it wouldn't really be appropriate to push forward." LT NEWS How the legal community in Ontario gets its NEWS To order your copy visit www.lawtimesnews.com or call 416.609.3800 or 1.800.387.5164 SUBSCRIBE TO LAW TIMES TODAY! Cutting-edge legal affairs, news and commentary for just 50 cents a day! Make time for Law Times and keep up with all the developments in Ontario's legal scene. SUBSCRIBE TODAY AND RECEIVE: t 40 issues a year covering Ontario's legal landscape t FREE Unlimited access to Law Times digital editions and digital edition archives t FREE Canadian Legal Newswire, a weekly e-newsletter from the editors of Law Times and Canadian Lawyer FREE Digital edition included! To order your copy Untitled-2 1 2015-10-28 7:45 AM Counsel predicts new trial unlikely in Gravesande matter Continued from page 1 In addition, it argues the judge erred in his application of the law of negligence and failed to define the standard of care for lawyers retained in a group retainer in the circumstances of the case. It also sug- gests the judge made findings that contra- dicted his findings in the case against GM and that he failed to consider or apply the concept of professional judgment to his findings. Cassels Brock states in its appeal there were errors in the findings of causation as that wasn't a certified common issue and it suggests the trial judge failed to provide a chain of reasoning that would link the breaches he attributed to the firm to any losses by the dealers. David Sterns, a partner in Sotos LLP who's acting for the class, says the plain- tiffs believe the decision against Cassels Brock should stand. "We're responding. Our position is that the decision is very well reasoned and it's based on facts that are extraordinary," he says. Sterns says the appellants have all filed their notices of appeal and expects the appeals will move forward at once, most likely in May 2016. In the meantime, Cassels Brock 's own third-party claim against 150 individual lawyers involved in the case is also mov- ing forward. Although she was unable to provide further comment, Jo-Anne De- mers, a senior partner with Clyde and Co. Canada LLP who's representing Cassels Brock, confirms a jurisdictional hearing in relation to the third-party claim will take place on Dec. 3. The claim alleges those lawyers, and not Cassels Brock, were negligent in ad- vising on the wind-down agreements the dealers signed at the time of the bailout and suggests they should have to cover any damages it may have to pay. The agreements required the dealers to obtain independent legal advice before executing them, according to the firm. Sterns says the Supreme Court has granted leave to hear the jurisdictional argument from Quebec-based lawyers named in the third-party claim. He says those lawyers want their matter heard in Quebec rather than Ontario. Since McEwen's ruling, the case has spawned a series of appeals and cross- appeals. As part of his decision, McEwen found GM hadn't breached the Arthur Wishart Act and dismissed the action against it. He also dismissed a counterclaim by GM against each of the class members. GM is cross-appealing that decision. Sterns says the class is cross-appealing as well as it seeks to increase the dam- ages to at least $75 million from Cassels Brock. Sterns says the appeal against GM re- lates to the duty of fair dealing owed by the franchisor to the dealers. "In essence, our argument is that the duty of fair dealing is not diminished be- cause a franchisor is in financial distress," says Sterns. "The answer to that is insolvency, and in this case, General Motors made a spe- cific decision not to go into insolvency protection. The main argument in our appeal is that it had the exact same duties, if not heightened duties, to its dealers de- spite its own financial problems." Class action lawyer Ward Branch of Vancouver's Branch MacMaster LLP says the prospect of Cassels Brock 's third-party claim against 150 lawyers is one many people are watching as "it's a case of there but for the grace of God go I." He says Cassels Brock will face a num- ber of hurdles in stating its case and sug- gests bringing together 150 individual lawyers will be logistically challenging, especially in light of the current jurisdic- tional debates. "That group will stand together and make it very difficult on you," he says. "You're trying to herd 150 cats with 150 different calendars and suddenly you're having to defend against 150 bright ideas." Branch suggests Cassels Brock will likely pursue a strategy of passing blame that he says can be successful in dispers- ing financial responsibility but is gener- ally far more effective against a smaller group than 150 individuals. "When you third-party 150 people, it's almost too deluded," says Branch. "I would think going up against 150 people like that would be more bother than a help." LT Class seeking to boost damages to at least $75 million Continued from page 1

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