If we don’t know it personally, we can read it in the papers – issues with the justice system concerning race recur in Toronto.  Incarceration rates are disproportionate for people of colour. Carding by Toronto Police is now under policy review by the Police Board.  And beyond race, police behaviour and tactics have been challenged in the courts frequently, notably around the G20. When this clash arrives in the courtroom, are defense lawyers putting themselves at risk?

This past February a Toronto defence attorney was convicted of smuggling drugs to his client in the Don Jail.  He testified that he would never bring drugs to the jail, and that every seasoned lawyer knows that inmates are strip-searched before and after visits with counsel. John Struthers, a Criminal Lawyers Association 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.” Why would members of the judicial system pursue this case?

Here a Toronto criminal lawyer expresses her outrage at the verdict against her colleague and describes the vulnerable position of all of us when we allow the administration of the rule of law to become punitive. 

Recently, a Toronto criminal lawyer was found guilty of ‘smuggling’ marijuana into the Don Jail. Many criminal lawyers, including myself, were united in their anger with this verdict. Within two days, thousands of dollars had been collected for the appeal of the verdict, and two busy lawyers committed to doing the appeal pro bono.

I didn’t sleep the entire night following the verdict, my mind churning. The lawyer convicted is not a friend of mine, but someone I have only met – at the courthouse, at a law office, crossing the street on the way to his own trial, and in a bookstore. But my sense is that our collective anger and dismay was not triggered by personal association, or knowing that he is a deeply decent guy, or even that the judge is a ‘hanging judge’ but by something more profound than that. He is one of the few black lawyers of the defence bar. He’s a senior lawyer, born in Guyana, who has engaged in over 10 years of advocacy on behalf of our unfortunate fellow citizens behind bars. In this process, he has also engaged in battles with the police.

When this verdict came down, and even before, some lawyers were rethinking the idea of going into jails at all. For criminal lawyers like our colleague, boldness in the courtroom and the naming and shaming of police officers in open court can leave us with no protection in our homes, our cars, or our offices. The only protection is the law, but the law is only as good as the facts, and facts can be manipulated.

The law allows for the ‘smell’ of marijuana to trigger an investigative search by the police. The officers who testified stressed that they had smelled “fresh-cut marijuana” in the hallway of the jail. I do not know how they distinguished ‘burnt’ from ‘fresh-cut’, and whether anyone tested their smell faculties to make sure they were in working order. They smelled marijuana, and that was enough for the judge to convict. The officers had searched the inmate before he met the lawyer and after he met the lawyer. And they found nothing on him before he met the lawyer but they found marijuana after he met the lawyer. Yet, they also testified that the man did not remove his underwear in either search, but, luckily for them, they noticed a marijuana bundle peeking out of his underwear after he met his lawyer.

When I last saw our colleague, I said, “Well, the inmate is going to testify and have an account to deny these charges placed on you and that will be that.” He responded that years ago there was a case where an inmate lowered his pants on the stand to show the judge that he had successfully carried drugs to the courtroom from the jail, and this had no connection with his lawyer. Drugs are available in jail. In our colleague’s case, the inmate could not be found by the defence and may have been released or detained under an alias. So, in the absence of a personal vendetta, it does seem like my colleague was being made an example for the rest of us bold ones.

Maybe this explains our anger. Amongst ourselves we discussed ‘reasonable doubt’, we declaimed the judge, the hypocrisy of the anti-marijuana lobby, and state prosecution. But all that came after the initial shock of the verdict.

I think that it is a shock the public should begin to think about. If the legal system can arbitrarily come after one of us, we are all vulnerable. The state’s growing powers of surveillance, intrusion, domination, abuse, neglect, double-speak, and of rendering many of us increasingly impoverished, should be seen as a threat to even ‘law-abiding’ citizens of all colours and economic classes. Although non-white and poorer people are already less blinded to their own vulnerability.

It can be easy to ignore the situation. We insulate ourselves with our passivity often overlooking corruption and focusing on consumption. We retreat to our gardens, cafes, and cottages. We are often confused or resentful at ethnic minority successes.

However, it is only our patterns of consumption and control over a few cultural institutions that distinguish us from those poorer than ourselves, not our angelic nature. Our post-university children are vulnerable economically and thereby to ‘the law.’ This is most obvious in that legal services are unaffordable to us too, and less obviously, in the increasingly punitive function of the law. Now even the lawyers are being targeted, and as frequently discussed amongst defence lawyers, nobody seems to care.

It is for all these reasons that I am angry at the situation, in a different way than I am for many of my clients – brave, often honest souls – many of whom are treated as collateral damage on a daily basis.

I apologize if I still have not joined all the dots. Perhaps others can draw a different pattern or fill in some of the gaps.

– Jane Doe, LLB
Photos by  Paul Gorbould (top)
Ryan Godfrey 

 

Report on Incarceration Rates:
A Case Study of Diversity in Corrections: The Black Inmate Experience in Federal Penitentiaries – Office of the Correctional Investigator

Carding:
Stop Police Carding Now

“Blacks documented by police at high rate,” Toronto Star