Criminal defence lawyer and litigator on why a good defence still counts
The question criminal defence lawyers get asked often comes in many forms, with different words trying to get at an answer in different ways, says Marie Henein.
When you hire a lawyer, do you expect them to represent your interest and yours alone? If the public believes you are guilty of a crime or that your cause is wrong, should you still be able to hire a lawyer? What would happen if we decided that the wrong people or causes shouldn’t be allowed to have legal representation?
But if you distill these queries to their basic elements, says the very experienced Toronto lawyer who has taken on many “notorious” cases in her career, the question that’s really being asked is: “How can you be so amoral? Or immoral?”
Speaking at the Law Society of B.C.’s annual “Rule of Law” lecture recently, Henein went on to say, “It is a question that tells us a great deal about why it is being asked and where we are in our democratic process and society. It’s worse than a wrong question. It’s a dangerous one.”
She added: “I don’t know anyone who went to law school, struggled through seven years of education, incurred all sorts of debt, with the goal of doing the most immoral job that they could think of. For 30 years, it didn’t even occur to me to question my choice of profession, or my morality, for that matter, just as I expected, it did not occur to most young law students just trying to figure their way through. Really, and truly, nobody asked me this question for years. But nowadays, it seems that it is the only question people want to ask.”
Provocative words indeed, but Henein, who has defended several high-profile cases, including Michael Bryant, Vice-Admiral Mark Norman, and Jian Ghomeshi is not one to mince words. She recently released her memoir Nothing But the Truth, which weaves her personal story with her strongly held views on society's most pressing issues, legal and otherwise.
In an interview a day after her lecture to the B.C. law society, Henein says that when these types of questions come from the “ordinary citizen,” she believes they are likely asking because they probably don’t “have all the information - so it is understandable that they would have questions.”
Therefore, as a criminal defence lawyer, Henein says there is an obligation to “engage and inform the public about how the system works and what we’re trying to achieve.” But when these questions are asked by people in government, “who are legislators and who are in the executive branch, and who should know the judicial branch’s role, that is very troubling.”
That lack of comprehension is troubling in a democratic society, Henein says, as it serves the purpose of “trying to tear down one of the checks on authority and to delegitimize the judicial branch of government.” And that is the road to autocracy, Henein says. She points to evidence in places such as Russia, Afghanistan, and Syria, where the “rule of law” has been very much compromised – "you convince people that you’re illegitimate, and all these other institutions are illegitimate."
Henein also discusses the animosity towards so-called “loopholes” in the law, especially when it comes to constitutional rights.
“When you’re talking about constitutional rights, that’s not a loophole,” she says. “We all have the right to be sitting in our homes and not have the cops bust down our doors with a without a warrant. We all enjoy that protection. We all enjoy those limitations on government authority.”
Henein adds, however, that when the police break down a door and find nothing, it doesn’t lead to litigation or criminal procedures. “It’s always in the context of the police breaking in and finding something and charging that person,” she says. If the defence then argues that breaking in without a warrant is against the constitution, “that’s not a loophole. That’s asserting your rights under the Charter.”
Henein says one of her concerns about society’s debate today on the role of criminal defence lawyers, who take a lot of heat for defending people the public has decided are guilty, is the impact it is having on young lawyers and whether they should practice criminal law.
“When they see criminal defence lawyers being vilified, what these young law students are seeing is what they will potentially be subjected to,” she says. “If you’re going to have to constantly defend what you do," Henein adds, young lawyers may just not bother.
Lawyers who go into criminal law, either as prosecutors or defence lawyers, typically don’t do it for the money, Henein says, noting the pay is a lot higher on Bay Street. “You're doing it for another reason. But when you come up against all the obstacles - having to run your own business on your own, lack of mentoring - add being denigrated and some might think why do it at all.”
Henein also wants to make clear that support for the “me too” movement is not inconsistent with having a criminal justice system that is fair and based on the proposition that those charged are innocent until proven guilty. Checks and balances in our judicial system are core to a democratic society.
The “me too” movement, she says, “has a lot of value and deals and brings to light various issues and attitudinal changes needed to deal with things like sexual abuse – that is entirely appropriate.”
However, “that doesn’t mean you have to throw away the presumption of innocence and not preserve fundamental values – it’s not an either-or proposition. They are not inconsistent. The two ideas can co-exist.”
And to answer the questions mentioned at the B.C. law society’ Rule of Law lecture, Henein says this:
When you hire a lawyer, do you expect them to represent your interest and yours alone? "Yes, that is our job."
If the public believes you are guilty of a crime or that your cause is wrong, should you still be able to hire a lawyer? "Yes, nobody can be deprived of representation and the right to have their case heard before an impartial judge."
What would happen if we decided that the wrong people or causes shouldn’t be allowed to have legal representation? "We would give up our democracy and put ourselves on a path that we will forever regret."
