It’s the question every criminal lawyer has been asked more than any other (after “Why did it cost that much?”): “How can you defend a person you know to be guilty?” And my answer is always that it’s really not that hard, relatively speaking.
If I know or strongly suspect my client is guilty, I still believe the Crown must prove its case beyond a reasonable doubt, without relying on means that violate the Charter of Rights and Freedoms.
If a person’s liberty is to be taken away by the state, we’d better be sure the state has made its case. That protects the rights of everyone, not just the accused.
But defending a person whom I believe to be innocent, now, that’s the kind of case that keeps me up at night. The innocent person’s freedom depends largely on my competence as a lawyer, this can be emotionally exhausting.
Marie Henein, a contributor to the absorbing compilation Tough Crimes: True Cases by Top Canadian Criminal Lawyers and who is now in the spotlight as Jian Ghomeshi’s counsel, feels the same way. Recounting her representation of former Ontario attorney general Michael Bryant when he faced a charge of dangerous driving causing death, she notes, “any lawyer will tell you that it is the innocent who are the toughest to defend . . . I can think of no case in which I agonized so much over the strategy.”
Edited by C.D. Evans and Lorene Shyba, Tough Crimes features essays by several eminent Canadian lawyers, discussing the most interesting, notorious, or compelling cases they’ve worked on. The most noteworthy thing about the book is that it illustrates the emotional toll criminal law can take on the people who practise it.
Vancouver’s Richard Peck, spent more than four years of his life representing Ajaib Singh Bagri, charged — and ultimately acquitted — in the Air India bombing case.
On the Crown side, meanwhile, New Brunswicker Fred Ferguson, discusses his emotionally exhausting participation in the heartbreaking case of John Ryan Turner, a young boy abused, neglected, and killed by his parents. The case reduced this hardened, experienced lawyer to tears.
Even where the client undeniably bears some responsibility for the alleged crime, there are sometimes mitigating circumstances that can make counsel more emotionally invested in the case.
Stan Koebel certainly made mistakes that contributed to the Walkerton contaminated water tragedy, but his lawyer William Trudell recalls his client’s feelings of soul-crushing remorse, and how other parties tried to make Koebel a scapegoat for their own errors and failings. Similarly, the teenager who opened fire on his classmates in Taber, Alta., did indeed pull the trigger, but his horrific act came only after a lifetime of sadistic bullying.
Tough Crimes also offers considerable insight into the idiosyncratic thinking that separates Canada’s top lawyers — the ones deemed worthy of contributing to this volume — from their peers.
Henein, for example, decided it was in her client’s best interests to disclose the evidence compiled for Bryant’s defence to the Crown, in the hopes that prosecutors would decide he was not criminally responsible for killing a pedestrian with his car, and refrain from laying charges in the first place.
Most of us would keep that evidence far away from the Crown, on the basis it’s their job to prove the guilt of the accused, not the job of the accused to prove his innocence. But Henein’s gamble paid off; the evidence very clearly showed Bryant was defending himself from an agitated, unstable, and violent “victim,” and no charges were laid.
The first essay in Tough Crimes is by none other than the recently deceased Edward Greenspan, describing a case in which a jury convicted his client despite absolutely overwhelming evidence he was not guilty. Every dedicated lawyer does everything he or she can for the client, and voluntarily takes on a heavy emotional and intellectual burden in doing so. But as Greenspan’s case illustrates, even the best can’t win ’em all.
