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Climbing every mountain

Cover Story
|Written By Robert Todd
Climbing every mountain

Ontario’s criminal lawyers waged a heated and lengthy battle with the provincial government over legal aid rates last year, boycotting homicide and guns-and-gangs cases. After eight months of conflict, the provincial government in January agreed to increase lawyers’ tariffs, pledging a five-per-cent raise for each of the next seven years. The defence bar rejoiced at the news that lawyers would no longer have to take on the most serious of cases at a monetary loss, all costs considered. What few know, however, is that it might never have happened without Marie Henein. The boycott had caused discomfort in many halls of the profession’s legal establishment. In fact, says Criminal Lawyers’ Association past president Frank Addario, who spearheaded the campaign, there were moves afoot at some legal organizations to issue public condemnations. Addario turned to Henein, one of the country’s most accomplished and respected defence lawyers, to build bridges and convince those groups to, at least, remain neutral. The vocal opposition from representatives of large swaths of the profession may have put a swift end to a risky boycott. It also could have caused a long-term rift among the different segments of the bar. “I relied heavily on Marie to translate what we were doing into language that could be understood by civil lawyers and members of the establishment, because they respect Marie,” recalls Addario. “She was able to explain to them that we were not bug-eyed radicals who didn’t understand our obligations to the court, but instead we were dedicated professionals who were trying to fix a broken system.”

Addario isn’t the only one who has recently turned to Henein in a time of need. Former Ontario attorney general Michael Bryant has retained her to fight a charge of criminal negligence causing death, following an incident in Toronto last summer involving the death of a cyclist. Henein also made waves in 2009 for a surprising court victory on behalf of controversial hockey agent David Frost, who was acquitted of sexual exploitation. Henein was also at the Supreme Court of Canada twice last year to be heard on matters crucial to the country’s criminal jurisprudence. “There’s no question that she’s one of the leaders of the bar,” says Addario.

Henein has steadily cultivated a reputation as a go-to criminal defence lawyer since being called to the Ontario bar in 1992. Colleagues speak of her unbridled enthusiasm for the job, willingness to outwork her opponents, and — perhaps most important to Henein herself — her desire to show fellow women lawyers that they need not compromise to achieve their personal and professional goals.

Sitting in her downtown Toronto office — a classy rustic building with exposed brick walls and glistening wood panel floors — Henein reflects on the journey her family has taken since her birth in Cairo. Hoping to provide a better life for his family, Henein’s father, Joseph, uprooted his wife and daughter when Marie was just one year old, moving to Vancouver before returning east to Lebanon after just one year. But the volatility of life in that country prompted Joseph and Evelyn Henein to return to Canada and settle for good in Toronto when Marie was four. The Heneins were motivated by what their daughter calls “the classic immigrant mentality” — to start a new life in a strange land where their children would have better odds at success.

The plan worked, largely thanks to the unshakeable work ethic of Henein’s father, who toiled around the clock establishing a successful pharmacy business. Henein points to him as the greatest influence on her decision to seek a career in law. She calls him a “frustrated lawyer” whose ambitions were foiled by the poor pay lawyers earn in the Middle East. Yet his passion for the law and intellectual debate rubbed off on his daughter, who was given leeway to engage in passionate dinner-table deliberations with her father. That laid the groundwork for her future career. “Ever since I was really young, he would debate me and engage me,” she recalls. “We would have political arguments and religious arguments, and all sorts of things, constantly.”

That dinner-table discourse and her keen sense of social justice helped light a fire and shape her career ambitions early on. “There was no other option for me,” she says. “Ever since I was in elementary school, if you asked me what I wanted to do, it was to be a criminal defence lawyer.”

Henein’s brother, Cassels Brock & Blackwell LLP lawyer Peter Henein, says his sister’s inner drive to succeed took hold early on. He remembers a family March break vacation to Florida when his sister was in high school. Most kids that age would have been focused on soaking up some rays on the beach, but she was holed up in a hotel room working on an essay for one of her classes. “I think it was a paper on Keats,” Peter recalls. “I remember my mother imploring her to get outside and have some fun before we ended up leaving. I think it wasn’t until the last day of the trip when she had finished her paper that she finally came out and hit the beach, and was very disappointed that the entire week had passed. It’s still a story I hear often, because this was Marie growing up.”

Based on Henein’s early affinity for the profession, it’s no surprise she was on the fast track to its upper echelons. She arrived at Osgoode Hall Law School in 1986 with just two years of undergraduate experience from the University of Toronto. Her notorious work ethic produced top-notch results at law school, with impeccable grades helping her land an articling spot with prominent criminal defence lawyer Eddie Greenspan in 1989. Henein says it had long been her goal to article with Greenspan. She recalls announcing the ambition to an undergraduate peer at U of T, who, perhaps justifiably, laughed it off as unrealistic. “For me, there were few options, and it was so clear to me where I wanted to be, and who I wanted to learn from,” says Henein. “To actually get there was unbelievable, because at the end of the day, I had no connections, no nothing.”

While she had landed a dream articling spot with Greenspan and his then-partner Marc Rosenberg (now an Ontario Court of Appeal judge), she was unwilling to give up her thirst for academics. So after her articling term, she headed south to New York and completed her LLM at Columbia University. That move proved fruitful, as she wrote her thesis on theories of evidence, a subject that later served as a gateway to her teaching career.

When Henein returned to Toronto in 1991, however, she had no job. While juggling the idea of pursuing a doctorate, she received a call from Osgoode Hall criminal law professor Alan Young asking her to help teach a course on evidence. She accepted, and continued as an adjunct professor until 2006. In 2008, she took over as co-chairwoman of Osgoode’s LLM program. At the same time as first teaching with Young, Henein began assisting him on an appeal case with Rosenberg. That brought her back to the offices of her old articling firm, which soon offered her a job as an associate. Few young lawyers land a full-time gig without sending out a single application. Not only had Henein done that, but would be going to battle on some of the highest profile cases in the land. As Greenspan and Rosenberg note, it was clear from early on that Henein was a special talent. “Even then she was innovative; extremely hard-working,” says Rosenberg.

While Henein spent most of her time working with Greenspan, Rosenberg notes her ability, even at that early stage of her career, in spotting the heart of a case. “She would know what was the real issue,” he says. “She has very good common sense, and a good feel for the way people act and think. So she has a good feel for what makes sense in somebody’s story, how to deal with them.”

Greenspan says Henein’s impressive marks in law school and sharp focus made her an easy choice as an articling student, and later associate and partner. “She was articulate and knew exactly what she wanted to do with her life and was determined to work hard to achieve her goal,” he says. Greenspan adds that throughout their time practising together, Henein served as a key adviser. “When conflicting issues arose and I needed a sounding board, she was one of the few people that I could talk to and have confidence and trust in.” He further praises his former partner, saying, “One of the greatest accolades that defence counsel can receive is preparedness, intelligence, a dogged determination to succeed, and the respect of your peers. That is Marie in a nutshell.”

Her time with Greenspan and Rosenberg certainly paid off. Henein credits Rosenberg, who was appointed directly to Ontario’s top court in 1995, for showing her the ropes of appeal work. “What was striking was how much confidence the court would have in him, because he was so objective,” says Henein. “I remember if I wrote a factum for him — and I wrote many, many, facta — if the Crown came back saying we accept the summary of facts, he would say to me, ‘That’s an excellent factum.’ So it was about objectivity and even-handedness.”

On what she learned from Greenspan, Henein says quite simply, “The experience as a trial lawyer was invaluable.” She credits the experience for helping form her approach to cross-examinations, development of case theories, and the true mark of a top defence lawyer — perseverance. “There’s no point too small, that you wouldn’t spend hours trying to figure out. He’s meticulous,” she says of Greenspan. Plus, Henein was never curtailed in her thirst for more work and bigger responsibilities. “In that environment, you were given the opportunity to do absolutely everything,” she says.

Henein makes a point of noting her gender never factored in when Greenspan assigned her work, something many young women lawyers say can be elusive. “It was never that I thought of myself as anybody different than anybody else. That was liberating, because I just never had to deal with those sorts of issues that I guess many, many women unfortunately do when they talk about the ability to be taken seriously or get cases. It was never an issue; you could take as much as you want, and you could climb whatever mountain you wanted to climb.”

The theme of women in the profession is close to Henein’s heart. It served as her motivation for leaving the partnership with Greenspan in 2002. She desired independence, and wanted to blaze a trail as a woman lawyer whose name came first on the letterhead. So in September 2002, she opened Henein & Associates, which now bustles with her and four other lawyers.

Henein points to her parents as the genesis of her belief that women should not be encumbered in ways that men are not. “I was not brought up to talk about when I was getting married and when I was having children. That was not the goal.” Her mother made it clear that Henein should prioritize autonomy through her career. “It was drummed in my head. . . . The only thing she would talk to me about was, ‘What are you going to be? What are you going to do?’”

To illustrate this point, she recollects an exchange when shopping for her wedding dress. The saleswoman turned to Henein’s mother and said, “You must be really proud that your daughter’s getting married.” Her mother responded: “I was proud of her when she got her law degree; I was more proud of her when she got her graduate degree; it is very nice for her that she is getting married. But that’s not why I’m proud of her.” The clerk was left speechless.

Henein admits her frustration in seeing, as she says, “women leaving the defence bar in droves.” She believes the exodus has been led by the view that women fail in their personal lives if they fully commit to succeeding as a lawyer. “I think the stress of that for women who feel that they cannot demand or be entitled to do every single thing that males do in this business, that they are not given the liberty to do that, is something that drives women out of this profession,” she says. “It’s a lonely place to be.”

Yet she remains hopeful that new lawyers will seek guidance from their more experienced peers. Henein — who has two young boys with husband of 15 years Glen Jennings, a defence lawyer with Hunt Partners LLP in Toronto — fields her share of inquiries. Young women lawyers bombard her with questions like, “How can I do it all? How can I be everything, every time, everywhere?” This pressure, says Henein, starts to weigh on women from the moment they graduate from law school. She suggests women lawyers should begin to expect more of themselves, and draw on the aid of those around them to help them accomplish their goals. “I think there’s a role to play in inspiring these women, and not simply telling them, the moment they enter into this career, that they should think of other alternatives,” says Henein. “That they should be driven out, because they should compromise. That’s the bottom line — it’s that you need to find a job that will accommodate you doing absolutely everything. I just never remember those sorts of programs being in place for men. I just don’t remember the program which said to the men of this profession, ‘Here, we’re going to teach you how to be a good dad, and a good lawyer, and what we tell you to do is you should probably try to compromise in your profession.’”

Compromise is clearly not a theme in the life of Marie Henein, and a big reason why she is one of the first lawyers called when high-profile criminal prosecutions arise. However, 2009 was something of a banner year for her. She acted for Bradley Harrison at the Supreme Court of Canada in R. v. Harrison, a ruling that was part of a group of companion cases that recalibrated judges’ handling of tainted evidence and, for Harrison, quashed a $4-million cocaine seizure. She also acted as amicus curiae in R. v. McNeil, a drug case that prompted the top court to strengthen guidelines for the disclosure of relevant police discipline and criminal records. “Those cases, for a purely selfish reason, were very important to me because I was able to weigh into legal issues that I thought were really important for the criminal system,” she says.

Also last year, Henein represented Marcia Dooley in an unsuccessful appeal at the Ontario Court of Appeal. That followed a second-degree murder conviction in the death of Dooley’s seven-year-old stepson, Randal. Henein is understandably tight-lipped about her ongoing representation of Bryant, but admits she is “flattered” that the Harvard University-trained lawyer — himself considered one of Canada’s top legal minds — chose her to stand up for him in court.

Addario says it’s no surprise that Henein is in such high demand. She possesses a blend of toughness, work ethic, and intellect that have fuelled her drive to the top, he says. But perhaps more importantly, she is what he calls a “hoper.” “She’s willing to suspend her disbelief, roll up her sleeves, and get down to work and develop difficult or hard to demonstrate defences,” says Addario, pointing specifically to the Frost case.

While an aggressive approach to the job has landed her a reputation as someone to fear, Henein’s friends and family are quick to point out a softer side. “Certainly most of the people I speak to who know her, especially people in my year of call, are intimidated or frightened by her,” says brother Peter with a laugh. “She’s always had a reputation as someone you don’t mess with. But she’s actually got an incredible sense of humour. Our personalities have always meshed on that ground.”

He also talks about his older sister’s nurturing side. While growing up with a six-year age difference, he often felt like he had two mothers. “She was very protective of me growing up. Again, I think there’s always been something driving her, and in terms of things like social justice, it’s not something that she seemed to pick up, learn, or be inspired by somebody at some point to be that social-justice person. She just always had this perspective, this very deeply rooted sense of right and wrong. Frankly, that’s why I think criminal law was so perfect for her.”

Addario notes she has also made significant contributions to the profession beyond the courtroom, including her role as vice president of The Advocates’ Society. The society’s current president Sandra Forbes is a close friend who says the institution will be in good hands when Henein takes over next year. “She oozes confidence. She has very good judgment,” says Forbes. “For some of the issues we deal with, they are difficult issues where there may be no particular black or white response. There could be a lot of people who would sit there hemming and hawing and thinking about it. It’s great having Marie involved in those discussions, because she’ll be very thoughtful and considerate of people’s views. But then she’ll say very quickly, ‘Well, in my view the answer is X, for these reasons.’ She’s very good at quickly and effectively analyzing an issue and coming up with a solution.”

Rosenberg credits Henein, along with Toronto Crown lawyer Alison Wheeler, for her role in creating a program that sees top defence counsel represent inmates pro bono at the Ontario Court of Appeal. He says the program has had a very practical impact on the court system, offering individuals denied legal aid an informed voice at the province’s top court. “She saw a weakness in the system that could be fixed,” says Rosenberg. “She cares a lot about people, and as much as that she cares about the criminal justice system. She could see that the system could be hugely improved.”

Looking forward, Henein hopes to contribute on an international level. That might encompass helping developing nations improve their justice systems. “I think if you were to say what my retirement years in my mind would look like, it would be doing that sort of work. It would also be doing cases that I find are fascinating and interesting,” she says. But as she’s only 44, those days are a long way off.

While she refuses to rule anything out — including a stint on the bench — Henein is as excited as ever to be the woman with her name on the firm’s letterhead. “I still love it. I still am jazzed about it,” she says. “If I’m on holiday or I’m having lunch with a colleague or I’m sitting and talking to Eddie [Greenspan] — because we spend two or three hours chatting — it is about law. When I’m reading the paper, I’m reading about cases, because I love it. If I’m watching movies, if they’re law movies, I love it. That is who I am.”

  • writer

    Mohammad Salim Shaik
    Very inspiring story of a great lawyer.