Today’s Hub Dialogue is with Marie Henein who has been called “Canada’s most famous defence lawyer” for her success in a number of high-profile cases over her distinguished career.
She’s recently published a new memoir, Nothing but the Truth, that not only chronicles the trajectory of her legal career but also casts light on how her ideas and values were formed through her childhood and professional experiences. The book has been widely praised for its honesty, insights, and vulnerability.
What follows is part one of our conversation with Henein which covers her early career and the current state of the criminal justice system in Canada. Coming tomorrow, part two will touch on the seedy underbelly of Ottawa, the sorry state of our political institutions, and her experience of being disinvited from school events.
This conversation has been revised and edited for length and clarity.
SEAN SPEER: As an Osgoode and Columbia graduate, you opted not to go the route of so-called “big law” and commercial practice. You instead chose a career in criminal defence and ultimately started your own firm. What caused you to pursue a different path from a lot of your peers? What drew you to criminal defence work and pulled you away from large Bay Street firms?
MARIE HENEIN: Well, I didn’t come from a background of Bay Street, and I didn’t come from a family of lawyers. So, the regular path was not a path that was known to me. It didn’t occur to me that that’s where I should go. In law school, I knew that the Bay Street firms were certainly out soliciting and I understood, generally, what that life would look like in terms of money and the type of work you would do. And I had no interest in it. I had zero aspiration to work on Bay Street. If I had wanted to, I would have done it. But I just had no interest in it.
I came to law school determined to practice criminal law, on the defence side. There was no wavering in that ever for me. It was something I had wanted to do since elementary school, to be honest. So, when I got to law school, I wasn’t disillusioned with my choice of career; I wasn’t disillusioned with the subject matter. It was exactly what I had hoped.
I did not apply to any of Bay Street firms or the Crown attorney’s office. I applied to a handful of criminal defence law firms, and I told my parents, “If I don’t get a job, then I got to figure out another career.” I was that obsessed, and that single-minded about what I wanted to do with my life.
Thinking back now, when young lawyers come and speak to me about what they want to do, and what their choice of practice should be, I always tell them that “Unless you’re absolutely 100% certain about a particular area,”—because it becomes very difficult to move, particularly out of defence work to another area—”then try other things.” And later in my career, I have spent a great deal of time doing administrative law and doing mostly civil litigation now, and it’s not something I would have ever thought I’d be interested in doing when I was in law school. That path wasn’t in my sights.
I also knew that life in a large corporate firm isn’t suitable for me. It’s not consistent with my personality type. I don’t like bureaucratic thinking or red tape. I will not ask for permission to do things that I think are right for my client or my career. That type of structure was too constraining for me. And as I got older and would get pitched to join larger firms, it was always a non-starter, because I just didn’t want to live that life, and I didn’t want to be told what to do. I hate the politics of it. I’m not interested in bureaucracy and having to convince people to take a chance or think outside of the box.
SEAN SPEER: We’ll come back to the question of red tape, bureaucracy, and politics. But if I could just follow up, what is it about criminal defence work, in particular, that attracted you as a young person and continues to motivate you in your career?
MARIE HENEIN: Well, it was not a big moment for me that all of a sudden I saw the injustice of the world and wanted to be a criminal lawyer. This career was always my natural inclination. My natural inclination is defence-oriented. I don’t like people being bullied. I don’t like the idea of authority directing you in terms of what you have to do when it’s unprincipled. I am naturally oppositional and I don’t like doing something just because the majority feel it’s the comfortable thing to do. My instinct was always to lean towards criminal law.
The second thing is it was suitable for my personality. I’m a fighter by nature. I like it. It’s therapy—that you get paid for. I am able to express myself in a contained ring. It’s verbal boxing, and I like it. That works for me.
It’s also not static, and, if you’ve read my book, you know that I’m profoundly restless. Every single case requires you to meet people you’d have never met; think about things you wouldn’t have thought of; learn things you didn’t know about. Sometimes it’s very subject-matter specific—so for instance if I’m doing an environmental case, I’m learning about a particular environmental issue. I love the fact that generally in criminal law and litigation, you are constantly learning and being challenged. That feeds a part of me as well. It requires me to become an expert for a limited period of time in an area and learn about things that I honestly never would have thought to pick up a book and read about.
So, all those things, and then ultimately what’s at stake—it is high stakes poker. For me, we are arguing in a courtroom about everything we believe in. So, when you think of abortion laws being struck down in Canada in the Morgentaler case; or when you think of the legalization of marijuana; or when you think of the right to die cases; or when you think of gay marriage, all of it gets litigated in a courtroom. Our fundamental and core values, which are constantly shifting and adjusting, are challenged in a courtroom.
This idea of majority rule is constrained in a courtroom. We have this view—it’s very much part of the dialogue, particularly in the United States and in Canada—that somehow elected officials are more important than the judiciary, and that the majority views are the predominant views and that minority views are to be marginalized and are secondary. In a court, it’s the precise opposite. It’s the place where you protect minority views and minority rights. That was important to me. All of those things mixed to make a courtroom just the right place for me to be.
I will not ask for permission to do things that I think are right for my client or my career.
SEAN SPEER: You mentioned that one aspect of the job that you like is needing to confront and then dig deep on new and different issues. In the book, you write about the good and evil of social media —including, on one hand, the democratization and communication that it enables and, on the other hand, the sensationalism and even so-called “fake news” that it can precipitate.
How should we as a society balance these good and bad aspects of the online world? Is there a role for government regulation or do we think we should self-police our consumption of online consumption?
MARIE HENEIN: Well, there are two complementary things. One, there is a very significant role for government regulation. It is extraordinary to see that in the United States with cases like Citizens United, large corporations, not members of the public, are really dictating government policy. And those corporations have one goal: they are a profit centre. A corporation is not designed to enhance social policy. This whole idea in the last 10 or 15 years that corporations have a social conscience is marketing. It’s not true; they aren’t a person, and they have an obligation to their shareholders. That is it. They’ve run amok, and you’ve seen it recently with Facebook, for example, and what they are aware of and what they can do. The idea that we’re going to wait for corporations to voluntarily regulate themselves is just silly, in my view. It is not the nature of the beast. And so, the government does have a very significant role in regulation particularly when these corporations risk upending democracy.
Now, I appreciate that when it comes to regulation, people sometimes think it’s contrary to our democratic values. I don’t think it is, and we do have to remember that democracy is a bit of an experiment, right? It is a new political construct, and you’re seeing some very significant fault lines right now, which require us to rethink some things including what we view as the rightful place of government. So, I do believe that government regulation is a part of it.
But on the other side is the idea that we as individuals have to wake up and realize what we’re being fed, and in turn regulate ourselves and our information intake. We know that if you’re searching for one thing, that these companies are very effective at directing you to places they think you want to go. We also know that the information that you’re given is very siloed. But nothing stops you from clicking somewhere else. Nothing stops you from saying, “Well, who is it that I’m reading? Who is this person? What are their credentials? What is this website?”
I think we have that obligation to not just go where we are told to go including websites that reinforce everything that we already believe in. It’s really interesting, and I think it comes, to a certain extent, from social media, that we don’t view communication as a positive thing. We just yell at each other; we do it digitally and we do it actually physically. On both the left and right, the idea that you or your beliefs could be challenged or opposed is viewed as triggering is astounding to me. All of that is really problematic because we’re not adapting our style of communication and social interaction to our new construct and we’re not learning to process ideas and information correctly.
So, I think we have to improve our processing mechanisms as individuals. We do have free will. We do have autonomy not to believe everything you read, not to believe everything that you’re told, and to be critical in your thinking. We’re looking for echo chambers, rather than political thought. And I have to tell you, on any issue if I’m reading about it, particularly in the last few years, and I want to find out more, I have a very hard time trying to figure out where to go to get data and to get information from people who are knowledgeable. It takes research, and it’s much easier just to read what’s been sent to you.
SEAN SPEER: Your point is that there’s no simple answer. There’s a role for regulation and also a need for us to recognize that have agency over the algorithms.
MARIE HENEIN: Yes. I think, as citizens, we like “all or nothing” solutions. Yet the consequence is nuance is completely lost, and sophisticated, multifaceted responses to problems are not accepted, because we don’t have the patience for it.
In criminal justice, for example, when you’re dealing with fundamental social problems, like drug addiction, over-incarceration doesn’t help; we know that mandatory minimums don’t help. The truth is, the criminal justice system just punishes people who have taken drugs but does it solve the problem of why people are drawn to them in the first place? The whole life cycle of addiction, how it’s connected to poverty, and so forth. Punishment fails to address these core issues because we want such an immediate fix. We don’t want layers to do anything. And I think that’s the case, very much so, when it comes to social media: It’s either regulation or self-regulation. And quite frankly, it’s government regulation and self-regulation. It’s a whole constellation of things.
SEAN SPEER: You anticipated my next question. How would you describe the current state of the criminal justice system in Canada? Are we achieving a balance between protecting victims and at the same time guaranteeing a fair and equal hearing to the accused? If not, what, in your view, needs to be changed or reformed?
MARIE HENEIN: Well, I think for the public, who are reading only headlines, they don’t know how long the justice system has been in process of correcting some very fundamentally destructive gendered views. There were a lot of laws that were passed in the 1980s and 1990s putting evidentiary rules in place that were designed deliberately to get rid of the very gender judging that was going on and was not giving complainants, witnesses in sexual offenses a fair shake. There was a lot of work done to that point, but it doesn’t mean that you stop. You’re always looking at the justice system with a new lens, and you’re always trying to see, “What else can we do?”
I don’t think that looking at the justice system and saying, “Look, what can we do to make sure it’s fair to everybody” is inconsistent with protecting fundamental values and the burden of proof beyond a reasonable doubt. And, sometimes, we have to make tough decisions. We can’t forget that the justice system just determines guilt or innocence. That is what it is there for. It is not there for anything else, and insofar a witness comes to court and isn’t able to give their evidence in a way that’s effective or that is not obstructed so that the judge can look at it all, we have to correct that. But that doesn’t mean taking away rights that are necessary to ensure that people who are charged can defend themselves and that we don’t have wrongful convictions. It’s not an “all or nothing” proposition.
I think with the state of our justice system—maybe this should be the title of my next book, Under Siege—we have this siege mentality that we’re always on the brink of collapse. We’re not on the brink of collapse; we’re always on the brink of change, and that’s not the same as collapse.
Our justice system is very good, but every single day, I can tell you that we are litigating cases at the highest levels, where we’re recalibrating everything. We’re having those discussions grounded in law, and trying to figure out, “Do we need to move this way? Or do we need to move that way?” and changes are happening. I don’t think that’s wrong. I really don’t. It just means you’re always reassessing yourself. You should be. As a system that is built on a society that is racialized, gendered, or otherwise—we have all of this history, we can’t ignore it. You continue to try to deal with it and reassess.
Stay tuned for part two of our conversation with Marie Henein dropping tomorrow.
