Lawrence Gridin

2Good morning. I appreciate it. Thanks for having me. So as you said, I am principally a criminal lawyer. I've been practicing for approximately 10 years. In criminal law. I also do quite a lot of professional discipline work, which overlaps quite a lot with the criminal work. And my practice is a little bit different, I think, from what people might think of as sort of a typical criminal lawyer, in that I don't deal with a lot of sort of street crime, robberies, and things of that nature. Principally, my work revolves around representing professionals when they find themselves in conflict with the with criminal law or with the regulator. And that includes doctors, lawyers, a lot of police officers I represent when they find themselves in trouble or subject to an oversight investigation.

3So that's a little bit different. I also do quite a lot of work with, with corporate clients. I represent for a Fortune 500 company on advising them on compliance with Canadian law enforcement. So that's sort of different than I think what most people think of is, you know, when they think of the typical criminal lawyer. And also recently I've been doing quite a lot of policy work as well, helping to lobby for particular legislation or making recommendations to government with respect to legislation. I was recently before the Ontario Standing Committee on Justice Policy on a particular bill, which was quite exciting. So I'm doing quite a bit of that as well. So criminal, you know, in my sense is very quite an expansive field and doesn't just involve what I think people, you know, typically as sort of the street crime representing people charged with street crimes and things of that nature.

6So, it's going to vary quite a bit from one criminal lawyer to another, right? As you point out. In order to dispel that mystique a little bit, you know, in civil litigation, obviously, most cases are able to be resolved and settled. There's lots of reasons for that, including the fact that it's just so costly to litigate. The reality is, and people may not appreciate this, but that's the same is true in criminal law. The vast, vast majority of cases do end up resolving in some fashion that does not involve a trial. The typical statistics are around 98% resolve. You know, I think in civil litigation, it's, you know, perhaps 99% or perhaps even higher than that.

7But we do see a very, very high resolution rate in criminal law as well. That being said, there are very different dynamics. So we do see a number of cases coming to trial that wouldn't necessarily come to trial if it was a similar piece of civil litigation. So, so I would say it's true that criminal lawyers do more trials than civil litigators, again, depending on their nature of their practice. But it's not like every case goes to trial. There's a lot of resolution that's happening. Particularly for people who do legal aid work in criminal law, they tend to have a higher volume of trials. The kind of work that I do, it's interesting, my cases, my clients typically can't resolve their cases with a guilty plea.

8It's simply not an option to them. The vast majority of my clients have no criminal record, and a criminal record would be essentially professionally a death sentence for them. So, it's just not an option. So, obviously I look at ways of resolving their cases, and I'm frequently successful in resolving their cases in a way that doesn't involve any kind of admission of guilt and doesn't involve a plea. But a lot of my cases still do resolve. It's just, you know, it's sort of part of the facts of it. But I think where people do a lot more legal aid work or more street crime, you do see quite a bit more trials. They tend to have more volume practices.

9I do do quite a bit of administrative hearings as well. So I'm in the tribunals a fair bit, probably more frequently than I am in terms of criminal trials.

12No, it's certainly not stupid. You're right that we have the advantage of having the elements of the criminal offenses are set out in a statutory code and the criminal code various pieces of provincial regulations. But just because they're set out in statute doesn't mean that those statutes aren't subject to interpretation. There's still, you know, quite a lot of common law that goes into the contours of those offenses, the contours of the elements of each offense. And just to highlight an example for you, very recently the Supreme Court of Canada dealt with, you know, what is the mental element for breaching your bail. You know, and that's been an offence that's been on the books for I don't know how long, but, you know, decades and decades and decades.

13And it's only now that the Supreme Court of Canada is finally resolving that issue because different courts were going different ways on what the mental elements are. So, and that's true of, you know, really any offence. We see cases going up to the Supreme Court of Canada where contours are being constantly shifted and set. Our courts of appeal disagree across the country on what the elements are. So, you know, even though it's set out in a statute and it seems like it might be simple, the reality is you know quite a bit of law and you do have to follow the cases because, because, you know, those boundaries and those definitions are constantly shifting.

14You know, what is a firearm? You know, what constitutes a firearm? That's another case that recently, you know, a few years ago, went up to the Court of Appeal. You know, so

16about— I would—

18Exactly right. You know, we're talking about, you know, sexual assault and, you know, there's— I mean, I have some concerns about how that case has been sort of portrayed in the media, but You know, we're dealing with sort of the boundaries of when a person is doing something voluntarily and when they're not doing something voluntarily, and when that can serve as a defense to a criminal offense. And again, those things, I mean, the thing about that is that it's something that comes up so rarely that we don't really encounter it a lot in criminal law, that sort of level of automatism. It's quite rare. But as I said, you know, even with common issues like breach of bail and what the mental element is for breach of bail, which comes up all the time, we still get guidance from our courts that shift our definitions and how we approach these cases on a constant basis.

20Usually I would say that the vast, vast majority of cases coming before the courts are fairly narrow. So, I think you're quite, quite on point about that. But there are exceptions as well. There are cases that are, you know, forensically complex, particularly homicides tend to be forensically complex. We have fraud cases, especially complex frauds. Those can be very, very document heavy and you could require the assistance of experts. You know, we have another, in terms of on the street crime level, we have what are called major projects. And those can be, you know, a gang investigation or an organized crime investigation that spans many, many accused, that's based on conspiracies, that's based on wiretaps, you know, search warrants.

21Those can be also very quite document heavy. And the relationships between people can be very, very complex. Those are rare though. The vast, vast majority of cases coming before the courts are very, as you said, very discrete, very narrow issues. And oftentimes those issues, the legal issues are well settled oftentimes.

23Absolutely. I would say probably the number one most important skill for a criminal lawyer is to have a very, very solid foundation in the law of evidence. A lot of cases are going to turn on the admissibility of evidence. And, you know, we're talking not only common law evidentiary rules, but also constitutional rules relating to the admissibility of evidence and breaches of the Charter, right? Because if the police breached, or the state breaches a person's Charter rights in obtaining that evidence, that can be a basis for exclusion of that evidence, and the entire case can fall apart. I mean, if we're talking about an impaired driving case, where the breath sample was taken illegally, the entire case is likely to fall apart if that evidence gets excluded.

24If we're talking about a drug case where the drugs were seized illegally, it's very likely that the entire case is going to fall apart. So a lot of times criminal lawyers are actually strictly dealing, the entire case is all about, is this one piece of evidence going to be admissible or not? And if the piece of evidence is admissible, my client may as well plead guilty because they're done like dinner. And conversely, if the evidence is inadmissible, my client walks scot-free. So certainly admissibility of evidence, I think, is one of the forefront issues that criminal lawyers deal with on a day-to-day basis.

26Absolutely. Anytime.

28I don't know when we're going to have members of the public observing criminal trials again anytime in the future, but that would be quite fun.

30It's a great question. So, you might be surprised to know that we really don't have a discovery system in criminal law. What we have is disclosure, which means that the prosecution is required to provide us with essentially a copy of all the evidence that they've gathered in the case. So we have, you know, witness statements and things like that. But in terms of actually putting a witness up to discover them, we don't get an opportunity to do that. We did up until recently, for people who are charged with indictable offenses, the more serious offenses, we did have the ability to have a preliminary inquiry. And a preliminary inquiry is like a mini trial to determine whether there's enough evidence to put a person on trial.

31And during that preliminary inquiry process, you would get an opportunity to call witnesses or hear from witnesses. As part of that. So those served an important discovery function because you could get a witness under oath, you have their statement in advance, and you can cross-examine them on that statement. You can lock them down on, on their version of events. However, there's been a recent push, as you might be aware of, to eliminate preliminary inquiries because they were considered, for various reasons really, they were considered sort of time-consuming. They could potentially re-traumatize a victim if they have to testify both at a preliminary inquiry and at a trial. Other reasons as well, but that push has really, really limited the number of opportunities we have to have a preliminary inquiry.

32And I would say probably in the vast majority of cases that go to trial, there is no preliminary inquiry. There is no opportunity to discover witnesses before they hit the box. And that might come as quite a shock to civil litigators. We essentially have to go on whatever statement the police gathered, and very frequently the police are not asking the kinds of questions that we would like to be asking the witnesses. So, we're at a bit of a disadvantage in that respect, and certainly the elimination of the preliminary inquiry for most cases has widened that disadvantage for the defence.

34Great question. The answer is no, they do not. They do not consider it to be an infringement of Charter rights. There was obviously a strong push on the part of the defence bar to protect the preliminary inquiry at all costs. And there has been litigation on that issue. And unfortunately, the courts have ruled that you essentially don't have a constitutional right to a preliminary inquiry. So, it's been, you know, sliced and diced and gradually eliminated. So, it does remain in certain cases. For the most, most serious offenses, you still have the right to a preliminary inquiry, but it's very, very rare that you'd be dealing with one of those kinds of cases.

36I think that was one of the key reasons why the government sought to eliminate them. They wanted to protect witnesses from having to testify twice. Which can, of course, be traumatic. You know, if you think of particular sexual assaults, right, having the complainant or the victim in a sexual assault testify and be cross-examined in full, rather probing cross-examination at a preliminary inquiry can be painful for them. And then to have that have to happen again at the trial just sort of re-traumatizes the person. So that, I think, was one of the significant arguments for eliminating the preliminary inquiry. I should point out, though, that there are and have for a long time been measures that were put in place to protect witnesses in those kinds of situations.

37The Criminal Code has a number of procedures available for a person to, for example, testify behind a screen so that they don't have to, you know, come face to face and actually see the the person they've accused of, you know, seriously harming them. That's just one example, but there are numerous protections, potential protections in place. I guess it was felt that those were not sufficient, and the push has been to essentially eliminate the preliminary inquiry almost entirely.

39Yeah, so I'm not an expert in those cases. I don't, as I said, we don't really deal with those kinds of levels of autonomous, automatism on a regular basis. They come up quite rarely. So, but in general, the view in the media was that the Ontario Court of Appeal has essentially established that if you're drunk, you can get away with anything, including you can get away with sexual assault. And that has never been the case. And that is not the case with respect to what Chan and Sullivan decided. We're talking about a very, very narrow decision that applies in very rare circumstances where a person is essentially so intoxicated. We're not just talking about, you know, drunk.

40We're talking about a person who is so intoxicated that there's essentially expert medical evidence that they are no longer in, they're no longer in control of their functions, that they are no longer in control of their behaviors. They're almost in like a trance state. They're what we call automatons. They're not acting voluntarily. And in those circumstances, essentially what the court said is that a person has a right to raise that as a potential defense. Doesn't mean it's going to succeed. It's just that the Criminal Code, for constitutional reasons, cannot prohibit a person from raising in their defense the fact that they weren't acting voluntarily. You know, to give you an example, if a person has a, a person has a medical issue, has a seizure, and in the course of seizing they strike another person, that person is not guilty of a criminal offense.

41They didn't have control of their actions. They didn't make a choice to strike the other person. You know, if a person has a medical issue behind the wheel and crashes a car, you know, unforeseen medical issue, you know, we typically don't hold that person criminally responsible for that conduct because it wasn't voluntary. This just extends that to, to whether it applies in a case where a person through ingestion of some kind of substance can get into that kind of a state where they're no longer acting voluntarily. Should they have the right to be able to even raise that as a defense? And the answer is yes, they do have the right to raise that as a defense.

42It's, you know, The Constitution essentially prohibits the government from eliminating that entirely as a defense. And that's really what the case was about. It's going to come up virtually never. You know, you need an enormous amount of medical evidence to establish that you were at that level of automatism. So, you know, to the media pushing this narrative that, you know, it's now a defense to simply say you were drunk. To defense to a sexual assault is just false. It's not true. And it's frankly scaremongering. You know, I think it's quite unfortunate.

45Yeah, I think you have it exactly right. I think that that's exactly where the struggle, the legal struggle, you know, was about. It was about where exactly do we draw the line for culpability? When does conduct become criminal? You know, it's open to the government to just prohibit, you know, the excessive consumption of alcohol, right? They could just say, make it a criminal offense to have a certain blood alcohol content, period. But what they did here was essentially to hold you responsible for things that you no longer have voluntary control of, you know, after you've made the decision to drink, which is not criminal, which is not prohibited. You know, and I think in one of the factual circumstances, and you'd have to correct me if I'm wrong, but I think one of them was, You know, one of the gentlemen was trying to commit suicide and had taken a large number of ingested a large quantity of drugs, basically kill himself.

46And survived that and went on to do things in this automatistic state that he would never otherwise want to do. You know that's just an example, right? But

48mean, again, it's open to the government to criminalize the consumption of illegal drugs if they wanted to. They can, they can criminalize having a certain blood alcohol content. If they want to do that. But in terms of making you criminally liable for things that you do after the fact, that's where the court decided to draw the line.

50You know, I think that criminal law is probably just simply the most visible kind of law. You know, when people think of law, I mean, most of the time what they're thinking of is a code of laws that exists to, you know, constrain behavior. And that's really criminal law that they're thinking of and talking about, right? Going back to like Hammurabi's Code, you know, a system of principles and rules that govern how we interact with one another. So that's kind of, I think, the most visible. And, you know, also obviously the fact that the cases just get media attention because they tend to be sexy. You know, we're talking about things that are salacious, things that are, you know, violent events, things that cause public outrage when they happen, just tends to capture the imagination more so than, you know, a contractual dispute that frankly could actually be just as interesting.

51I mean, You know, the Uber case was, I think, quite interesting recently. You know, so, and those obviously also involve the application of legal philosophy and legal theory in much the same way that criminal law does. I just think that it's not quite as sexy, I think, to the public. So, I ultimately agree with your point that I think criminal law is most misunderstood, and that's only because criminal law is the most, sort of captures the imagination of the public more. If civil law was, or if a civil law case was quite sexy, I think it would also be equally misunderstood by members of the public. Actually, a great example, if you remember the McDonald's litigation, right?

52The personal injury litigation against McDonald's where a person spilled hot coffee on themselves. Yeah. You know, that case has been misquoted, misinterpreted, you know, and that's just because it got so much attention. I think that the public capacity to misunderstand the law is quite great regardless of what area you're talking about. And, you know, I'm not limiting my comments to the public. I'm limiting, you know, it certainly applies to lawyers as well. I'm sure I misinterpret, you know, cases that I come across that are not in my field.

54Be very, very careful what you say to the media. You know, obviously you need to get instructions from your client if you're going to speak to the media at all. You need to make sure that you're, if you are going to speak to them, that you're comments are consistent with your obligations to that client, your duty of loyalty. So there are significant ethical considerations in terms of dealing with the media. And I think that in general, it's usually better to avoid it. There's a number of risks that are present, including your words being taken out of context, your words being edited down, that you might not be thinking of. When you're giving a particular statement to the media.

55So there's always a concern there. Generally, I would say, you know, it's better to exercise a lot of caution before you do it. You know, we also have to be aware that sometimes no matter what we say, we're not going to be able to get the public on side with our client. You know, people who deal with criminal law often have clients that are vilified. And so a lawyer coming out and saying, you know, positive things about their clients is probably not going to change a lot of minds, and the question then becomes, is it really worth having that discussion? Usually, you know, in criminal law, it's better to simply say, my client's looking forward to their day in court.

56You know, we hope that this trial is going to reveal all the issues and, you know, the truth is going to come out. Something along those lines without getting into the evidence, without getting into, you know, personal details, things of that nature is generally the safest approach.

58I would say that most of what you said is probably true, especially for the vast majority of criminal lawyers who are sort of dealing with a day to day representing people accused of crimes, people who have been arrested. You know, my work is a little bit different. So it sort of changes my work-life balance a little bit. But certainly there are times when I get calls in the middle of the night, or I have an urgent bail hearing that I need to do because a client has just been arrested. So, you know, you're on essentially 24/7. There are a lot of urgent issues. And as you said, the stakes are very high because You know, it can be, you know, a person's liberty, it can be a person's career that's at stake.

59You know, a person who's arrested and finds themselves detained instead of getting bail is almost certainly going to lose their job during that process, is going to have their life turned upside down, even though they have not been found guilty of any kind of crime. And so, you know, we're always thinking about that. And it's quite an enormous responsibility. But it's also what makes the job quite exciting.

61Thank you so much. I appreciate your time, and I consider it a privilege to know you. So thank you very much.