Hub Dialogue

Marie Henein speaks out about ‘outrageous’ disinvitations

Jian Ghomeshi makes his way through a mob of media with his lawyer Marie Henein at a Toronto court on November 26, 2014. Darren Calabrese/THE CANADIAN PRESS.

Today’s Dialogue is part two of The Hub’s conversation with Marie Henein, a prominent criminal defence lawyer and author of a new memoir, Nothing but the Truth. You can find part one, detailing her early career, here.

In this final instalment of our interview, editor-at-large Sean Speer speaks with Henein about being disinvited from high schools and university campuses and the chronic lack of leadership stifling our society.

This conversation has been revised and edited for length and clarity.

SEAN SPEER: You mentioned, in an earlier answer, issues around communication and speech engagements. Some of your appearances on university campuses have, at times, caused controversies. What do you think that says about the culture in our post-secondary institutions? And what can we do to reinvigorate a genuine commitment to intellectual diversity, free ideas, and free exchange?

MARIE HENEIN: Well, it’s interesting you say that because recently I’ve been told that I’ve been disinvited this week.

SEAN SPEER: I’m sorry.

MARIE HENEIN: It says a lot about our post-secondary institutions that we think education means that you cannot have challenging thoughts, you cannot be presented with a view you disagree with, and you cannot be presented with information that is not the predominant view.

Because if that’s what we’re doing, then you’ve got to think back when certain people—who we would now say were very much on the right side of history—would have been precluded because their views were more marginal views.

There’s a difference between being obnoxious, offensive, insulting, racist or sexist, and having a view that is a different view about society, law, or anything. And then not allowing students to engage with people. That is such a failure.

First of all, it infantilizes everybody. We aren’t triggered constantly; we aren’t falling or passing out every time someone says something that we don’t agree with. We can sustain conversation and we can withstand opposite views.

What’s astounding with me, which is particularly concerning—it’s not the personal part of it, I really don’t care if people like me—is what are they objecting to? Because they don’t know me, generally, when I’m disinvited. They’re disinviting me because they don’t like my job. The job that I’m doing is part of the justice system. I’m a defence lawyer, which historically, by the way, has been a well-regarded profession.

So, you’re disinviting me because you don’t like the job that I do in the justice system? What does that say about what you think of our justice system as a school? That’s extraordinary to me. What does it say about the wrongful convictions that have happened so many times in Canada, and certainly in the United States? Who do you think is standing there? What does it say about the lawyers that are standing beside victims? They’re defence lawyers; they’re not prosecutors. We represent a range of people: some you like, some you don’t like.

But to disinvite someone because you feel that a high school or university student can’t bear a discussion about the justice system, and what a defence lawyer’s role is, is something out of Brave New World. We don’t need our intake of information constantly curated and censored. It’s so outrageous and it’s so uninformed. And it’s from people who are supposed to be educated. It’s uneducated, and it’s unnecessary.

SEAN SPEER: Your response to that question reminds me of something a colleague said of you. She said, “Marie, really at her core, believes in our institutions.”

What do you think of the state of Canadian institutions in 2021 given that we’ve had legislatures sit infrequently, our courts have experienced significant delays, Charter rights have arguably been undermined, and, as you know through your work, the Canadian military is in great disarray? How can we restore and strengthen public trust in our institutions?

MARIE HENEIN: Well, that’s a great question. I think our political institutions are in disarray. I think that politicians have forgotten that their role is to lead, no matter what part of the political spectrum you’re on. I actually long for leadership, not responses to tweets. That is across the board. I think people don’t understand that my criticism is of Conservatives and Liberals.

It’s a reaction to the idea that you have to be out there, and just be liked; that as a politician your celebrity is more important than your leadership. It’s a view that the public is stupid, and that if you don’t talk to them and engage with them, that if you try to convince them of your view about what is good for the country that they will not be receptive to it, that they can’t understand.

It’s such a chronic lack of leadership, where the only goal, and you see it in the United States as well, is to get re-elected. You get elected, and your next priority is to get ready to run for re-election for the next four years, or whatever your term is. I think that has done a real disservice to our political institutions because we completely lack the strength of leadership. It is pandering to just one segment of the population who will get you re-elected in your next term and ignores those who are not on Twitter; ignores those who are prepared to be engaged; ignores those who are thoughtful about a lot of issues. You sort of play to your base, and you ignore everything else, and you do nothing that will upset your ability to get re-elected. In my view, running a country to get re-elected is a real significant problem. And it sure isn’t what I think leadership means.

SEAN SPEER: It’s even worse because of the way our electoral system works. You don’t even need 50 percent plus one. We’re seeing governments win with barely one-third of the vote. I think Canadians would surprise us if a politician or party put forward a big, bold, audacious vision for the country.

MARIE HENEIN: Yes. You think of how the Charter was brought about. It was audacious and it was led based on a fundamental belief that we as a country needed this. It wasn’t the public crying out for it. It was controversial, it was difficult, and it was correct. It was leadership.

That is what bothers me. I’m going to focus a moment on criminal justice. What is incredible is that all parties agree on criminal justice, and it’s not reform. It’s criminal justice as a means to get electoral votes. So, for the Conservatives, it was mandatory minimums. “We’re under siege. You’re not safe in your own home and so we’ve got to put everybody in jail.” This is the response. For the Liberals, it’s being tougher on the crimes that they think the public wants to hear they’re tough on. So, sexual assault, for example.

None of this decision-making is evidence-based. None of it deals with Law Reform Commissions. None of it deals with making difficult decisions. None of it deals with the over-incarceration, in Canada of Indigenous communities and, in the United States, of Black Americans. None of it deals with the real issues the criminal law needs to deal with.

I believe that if you talk to the public, because I have talked to them about this issue, they engage with you and they want to know. And if you give information to members of the public, they are not stupid. We’re not stupid. We can listen, we can make decisions, and we can change minds. I mean, that’s what I do for a living: you go and you make your case and you persuade. The public can have a case made to them based on evidence and maybe be persuaded.

So yes, I would love to see some strong leadership, some willingness to take the position, “This might hurt me personally when I try to get re-elected, but I feel so strongly that it is the right thing for this country, I’m going to advocate for it.” Do you think now, in Canada, we would get the health care that we do have now? We wouldn’t get it. There’s no way you could pass something like that. I mean, they can’t pass nationalized daycare effectively in Canada. You think of all the things that happened historically which did require leadership, and you look now, and I’m sorry, I don’t see leadership capable of making us better. I think it’s a lot of weak people leading.

As a criminal lawyer, you’re always an outsider.

SEAN SPEER: If you think about the big issues facing the country—including demographic pressures, our place in the world, and climate change—the risk is that in the absence of such leadership, we succumb to inaction.

MARIE HENEIN: Climate change is a great one. My best friend has practiced environmental law her entire life. I have not. I don’t know much, but I have woken up a little bit as time has gone on. But one of the things that I’ve often discussed with her is, quite simply, the economics of failing to engage in climate change and technology and why politicians discuss environmental issues as a moral value rather than an economic one.

I understand that the public says, “Well, we’re opposed in principle.” Whatever, if you’re opposed in principle. But there are actually economic arguments to be made to the public to say, “Look if we do not move and develop these sectors and technologies, we will lose financially.” And, as you say, our positioning in the world is going to be significantly impacted.

Your job as a leader is to get information out to the public to convey to people why you’re making the decisions that you’re making and to bring them along with you. And we don’t do that. It’s astounding.

You’ve got the Conservatives who are so opposed [to climate change], it’s pitched as an election issue. It’s where they’re getting their votes. It has nothing to do with the value of environmental economics and the issues engaged with climate change. It’s not my area, but if I were a leader, I’d want to make sure the public understands what’s at stake and why you’re making the decisions you’re making. We just don’t have those sorts of leaders.

SEAN SPEER: One final question. Let’s come back to my first question about your career choices, and the path that they put you on. They’ve positioned you as a bit of an outsider. But recent cases have brought you to Ottawa and exposed you to the country’s bureaucratic and political culture. What are your reflections from these experiences? And what strikes you about this world of insiderism?

MARIE HENEIN: Well, as a criminal lawyer, you’re always an outsider. I think people think that an accused person has all the rights and they’re in control. That’s not the way it works. There’s no criminal lawyer that doesn’t feel like they’re on the outside and the cards are stacked against them.

But when you are in Ottawa, which again, was like a foreign country to me, inside baseball is palpable. And for me, it was the very first time in a 30-year career where I fully understood the power of the state against an accused person. This was the full power of the government directly focused on an accused person, and when you began to peel back the layers, it was not very nice. I don’t think that the public sees exactly what is going on. There’s this surface, and then what is bubbling below is generally hidden from view. And a lot of it is who you know, and where you’re being positioned. Often, it has very little to do with your merit and it has to do with other objectives. For example, where your riding happens to be, and what’s at issue at that particular year. I would not have seen it in any other context, so it was extremely eye-opening to me.

What did it feel like personally? Well, it certainly played to my outsider, fighter instincts. I won’t be bullied no matter how many lawyers the government brings to court. It just makes me rear up a little bit more because I don’t like unfair play. It’s something so fundamental to my core. I’ll have a fair fight with you, that’s not a problem. And I can lose. I mean, that’s fine. We all fail, we all lose. But I don’t like unfair fights. I don’t like when the government isn’t playing fair. It’s wrong. It’s wrong to treat your citizens that way.

And it was very apparent in Ottawa that that is how it is. I don’t think it’s any different than Washington. It’s not like there’s a different quality of person in Washington. There isn’t. And I really believe it’s a bit of a mentality that now when you’re in office you’re immediately running for re-election, and so everything you do is directed at making sure you’re re-elected. And if that’s your prime focus, how can you make hard decisions? How can you make decisions that will alienate certain portions of the population, or that certain portions of the population initially won’t understand or won’t support? Why would you if your focus is re-election? So, I saw a bit of the underbelly in Ottawa.

SEAN SPEER: That’s great. Thanks, Marie, for this fascinating conversation, and congratulations on the book.

MARIE HENEIN: Thank you for speaking with me.

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