WEBVTT 00:00:00.000 --> 00:00:02.080 Please know that this episode contains references 00:00:02.080 --> 00:00:07.360 to sensitive subject matter. Welcome to Law Syrup, 00:00:07.459 --> 00:00:09.400 the show where we talk with special guests about 00:00:09.400 --> 00:00:12.419 hot topics in Canadian law. This podcast is a 00:00:12.419 --> 00:00:14.259 co -production with the Ontario Justice Education 00:00:14.259 --> 00:00:17.699 Network, also known as OGEN. I'm your host, Herman 00:00:17.699 --> 00:00:26.600 Wong. Let's tap it. Before we begin, please know 00:00:26.600 --> 00:00:28.719 that this show is not intended to be legal advice 00:00:28.719 --> 00:00:31.019 or a replacement for a legal representative. 00:00:32.460 --> 00:00:35.000 Welcome back, everyone. On this week's episode, 00:00:35.159 --> 00:00:37.380 we will be sharing a recording from this year's 00:00:37.380 --> 00:00:40.049 Summer Law Institute. For those of you who don't 00:00:40.049 --> 00:00:42.170 know, the Summer Law Institute is a two -day 00:00:42.170 --> 00:00:44.789 event hosted by OGEN at Osgoode Hall in downtown 00:00:44.789 --> 00:00:48.030 Toronto for secondary school law teachers. One 00:00:48.030 --> 00:00:49.729 of the programs this year was a conversation 00:00:49.729 --> 00:00:52.570 with Megan Savard. Megan is a criminal defense 00:00:52.570 --> 00:00:54.829 lawyer, and she has been counsel on many high 00:00:54.829 --> 00:00:57.170 -profile cases, including the recent Hockey Canada 00:00:57.170 --> 00:01:00.549 trial. In this conversation, we have OGEN's very 00:01:00.549 --> 00:01:03.170 own Jean -Paul Bivilacqua speak with Megan about 00:01:03.170 --> 00:01:05.430 her career, her perspectives on criminal law, 00:01:05.629 --> 00:01:08.459 prison abolition, and the role of defense in 00:01:08.459 --> 00:01:12.799 the administration of justice. Thank you, JP, 00:01:12.900 --> 00:01:16.219 for having me. It's great to be back at OGEN. 00:01:16.219 --> 00:01:18.079 The last time I worked with OGEN was, I think, 00:01:18.079 --> 00:01:21.680 2008, when I was a law student. So it's good 00:01:21.680 --> 00:01:26.459 to be back. Before we get to that trial and Megan's 00:01:26.459 --> 00:01:28.879 experience, just wondering if you could take 00:01:28.879 --> 00:01:31.959 us a little bit back and talk to us about your 00:01:31.959 --> 00:01:36.230 first memories about the law. Well, as a white 00:01:36.230 --> 00:01:39.049 woman, my first interaction with the law was 00:01:39.049 --> 00:01:42.349 positive, like many people who have my profile. 00:01:42.629 --> 00:01:46.189 And it wasn't until I got much more involved 00:01:46.189 --> 00:01:49.650 in the criminal defense side of things that I 00:01:49.650 --> 00:01:54.109 got to see a little bit how this particular vehicle 00:01:54.109 --> 00:01:56.790 and industry can operate to the detriment of 00:01:56.790 --> 00:01:59.090 the people the state is supposed to be protecting. 00:02:00.939 --> 00:02:04.079 So for me, it was really, I almost stumbled into 00:02:04.079 --> 00:02:06.239 it. I didn't have any educators like the ones 00:02:06.239 --> 00:02:09.080 in this room to instill in me a love of civics 00:02:09.080 --> 00:02:13.180 or the law when I was in high school. So I took 00:02:13.180 --> 00:02:16.439 an English degree, realized that I had no marketable 00:02:16.439 --> 00:02:19.919 skills, flipped a coin, took the LSAT, decided 00:02:19.919 --> 00:02:22.300 I would go to law school, picked the law school 00:02:22.300 --> 00:02:24.879 based on a list I saw, I think in McLean. So 00:02:24.879 --> 00:02:26.740 really very thoughtless all the way through. 00:02:27.400 --> 00:02:29.680 And then it wasn't until I got to law school 00:02:29.680 --> 00:02:33.099 and realized that 99 % of the law I wasn't particularly 00:02:33.099 --> 00:02:36.020 interested in. The theory of the law was interesting, 00:02:36.319 --> 00:02:39.460 but really just wanting to ply my trade and help 00:02:39.460 --> 00:02:43.199 human beings, I started gravitating towards criminal 00:02:43.199 --> 00:02:46.840 defense in particular. Does McLean rank in such 00:02:46.840 --> 00:02:50.479 a throwback? Do they still do that? I don't know. 00:02:50.539 --> 00:02:52.919 I thought McLean was in the lower, but I assume 00:02:52.919 --> 00:02:57.400 so. Yeah, yeah, yeah. Interesting. University 00:02:57.400 --> 00:03:02.379 of Toronto, thank you, McLean's. Not a bad one. 00:03:02.639 --> 00:03:05.699 And so you talked or alluded a little bit to 00:03:05.699 --> 00:03:09.439 this, but did you head into law school with an 00:03:09.439 --> 00:03:11.139 interest in criminal law? Was there something 00:03:11.139 --> 00:03:14.659 that you did that kind of engendered a reaction 00:03:14.659 --> 00:03:17.460 in yourself? How did you end up choosing that 00:03:17.460 --> 00:03:21.569 specialty? No, I headed into law school with 00:03:21.569 --> 00:03:26.110 no interest whatsoever and hopeful to find my 00:03:26.110 --> 00:03:29.509 path. And I did not find it in the classroom 00:03:29.509 --> 00:03:33.569 in first year law school. And the reason for 00:03:33.569 --> 00:03:35.610 that is it is very theoretical. But thankfully, 00:03:35.729 --> 00:03:38.330 I was able to work at Downtown Legal Services, 00:03:38.490 --> 00:03:40.930 which is the University of Toronto affiliated 00:03:40.930 --> 00:03:44.270 poverty law clinic in my first law school summer. 00:03:45.680 --> 00:03:48.879 That was really what drew me to it. I practiced 00:03:48.879 --> 00:03:51.860 to the extent I can as a student. Admin law and 00:03:51.860 --> 00:03:55.159 criminal defense law had my first real clients 00:03:55.159 --> 00:03:58.300 and got to experience, again, like I said, a 00:03:58.300 --> 00:04:01.159 little bit of the way the deck is stacked. And 00:04:01.159 --> 00:04:07.490 I would say that really piqued both my... contrarian 00:04:07.490 --> 00:04:09.990 streak the desire to be on the side that isn't 00:04:09.990 --> 00:04:12.409 necessarily well represented that may be misunderstood 00:04:12.409 --> 00:04:15.210 and then my clients are just lovely people and 00:04:15.210 --> 00:04:18.529 having a terrible time and to be there for someone 00:04:18.529 --> 00:04:20.870 and what might be the worst moment of their life 00:04:20.870 --> 00:04:24.689 or one of them uh became a huge draw for me so 00:04:24.689 --> 00:04:27.230 what i mean is like the human connection piece 00:04:27.230 --> 00:04:30.029 was huge for you which having been to law school 00:04:30.029 --> 00:04:33.269 myself is yeah not always maybe it's changed 00:04:33.269 --> 00:04:36.029 and i hope it has totally or wholly emphasized, 00:04:36.189 --> 00:04:38.629 especially in those first -year courses. I'm 00:04:38.629 --> 00:04:43.370 wondering if there's a specific interaction or 00:04:43.370 --> 00:04:46.829 person or case that you dealt with at Downtown 00:04:46.829 --> 00:04:50.230 Legal Services that stays with you to this day 00:04:50.230 --> 00:04:56.230 in terms of igniting that path with you? Yes, 00:04:56.389 --> 00:05:00.120 actually. I was thinking about that. On my way 00:05:00.120 --> 00:05:03.519 here, I had one client. I won't name him. He 00:05:03.519 --> 00:05:06.639 had no criminal record, and he was charged. He 00:05:06.639 --> 00:05:09.180 was an elderly Rastafarian man, which becomes 00:05:09.180 --> 00:05:13.220 relevant to the story, in his early 60s, and 00:05:13.220 --> 00:05:15.600 he was charged with a very minor domestic assault. 00:05:16.639 --> 00:05:19.779 Now, normally, because of where he was located 00:05:19.779 --> 00:05:23.060 in the city, he would have gone to Osgoode Hall, 00:05:23.180 --> 00:05:26.139 York University's poverty law clinic. At the 00:05:26.139 --> 00:05:29.100 time, they had a blanket policy not to accept 00:05:29.100 --> 00:05:33.459 domestic assault cases where the perpetrator 00:05:33.459 --> 00:05:36.420 or the suspected perpetrator was male. And so 00:05:36.420 --> 00:05:40.699 all of these domestic assault cases came flooding 00:05:40.699 --> 00:05:44.319 into downtown legal services and I went into 00:05:44.319 --> 00:05:47.040 that job with a set of preconceived notions about 00:05:47.040 --> 00:05:49.259 the kind of person who gets charged with domestic 00:05:49.259 --> 00:05:52.970 assault. My client was lovely and gentle, and 00:05:52.970 --> 00:05:55.329 as I studied the evidence in the case, it became 00:05:55.329 --> 00:05:58.589 clear that it was not nearly so clear -cut. In 00:05:58.589 --> 00:06:00.449 fact, he was the one who had called the police. 00:06:00.709 --> 00:06:04.870 His domestic partner, a woman, was bigger, younger, 00:06:05.069 --> 00:06:08.810 stronger than he was, and there was a policy 00:06:08.810 --> 00:06:12.069 at the time that you have to pick one. Toronto 00:06:12.069 --> 00:06:14.449 Police Service has to leave having charged or 00:06:14.449 --> 00:06:17.110 cautioned one person, and so they charged him. 00:06:18.209 --> 00:06:20.410 And he wasn't facing jail time. That's why I 00:06:20.410 --> 00:06:22.230 was allowed to even put my hands on this case 00:06:22.230 --> 00:06:25.769 as a student. But I was looking for something 00:06:25.769 --> 00:06:28.230 to back up his story that, in fact, he was not 00:06:28.230 --> 00:06:32.470 the aggressor in this situation. And I went through 00:06:32.470 --> 00:06:34.410 some of the photos and I saw a photo that I, 00:06:34.449 --> 00:06:37.129 the content of which I didn't recognize. And 00:06:37.129 --> 00:06:39.470 I asked him, you know, what is this photo? He 00:06:39.470 --> 00:06:41.170 said, those are my dreadlocks. And they were 00:06:41.170 --> 00:06:43.550 lying on the floor where his partner had pulled 00:06:43.550 --> 00:06:48.149 them out of his head. And so that was, there's 00:06:48.149 --> 00:06:50.410 rarely a smoking gun in cases like that, but 00:06:50.410 --> 00:06:52.370 it was the kind of thing where combined with 00:06:52.370 --> 00:06:54.889 the minor nature of the charges, I was able to 00:06:54.889 --> 00:06:57.670 get the charge withdrawn with no consequence 00:06:57.670 --> 00:07:02.589 to him, legal or otherwise. And that was really 00:07:02.589 --> 00:07:05.629 a profound moment for me because I could feel 00:07:05.629 --> 00:07:09.769 my own assumptions being challenged and I was 00:07:09.769 --> 00:07:12.009 able to make a real difference in someone's life. 00:07:13.769 --> 00:07:17.230 I was able to do it when he'd been categorically 00:07:17.230 --> 00:07:20.850 rejected by a sexist policy from another institution, 00:07:21.009 --> 00:07:23.170 which I understand has now been changed long 00:07:23.170 --> 00:07:28.649 ago. So it just really made me think about my 00:07:28.649 --> 00:07:31.329 own assumptions and those that we all come into 00:07:31.329 --> 00:07:34.529 contact with the criminal justice thinking about. 00:07:34.769 --> 00:07:38.610 And it did stick with me for that reason. And 00:07:38.610 --> 00:07:41.730 so it seems like acting as Crown was never on 00:07:41.730 --> 00:07:44.550 the table for you. No, I didn't try to interview 00:07:44.550 --> 00:07:47.290 at the Crown. I think I may hold the most records 00:07:47.290 --> 00:07:50.110 for interviews conducted versus jobs not offered. 00:07:50.430 --> 00:07:52.949 It was just immediately apparent, I think, to 00:07:52.949 --> 00:07:56.050 everyone in those interviews that I was in the 00:07:56.050 --> 00:07:59.709 wrong place. And so that, you know, interviews 00:07:59.709 --> 00:08:01.470 are a great place to find out who you are as 00:08:01.470 --> 00:08:03.310 well as to get the jobs that you want. Yeah, 00:08:03.350 --> 00:08:05.389 especially if you're not pretending in an interview, 00:08:05.490 --> 00:08:07.589 which it doesn't sound like you were doing. So 00:08:07.589 --> 00:08:12.089 moving out of law school then. thinking about, 00:08:12.170 --> 00:08:14.569 you know, you're a young lawyer, early stages 00:08:14.569 --> 00:08:18.589 of your career. Did you think about, like, I 00:08:18.589 --> 00:08:21.629 need to make my mark, or were you just one choice 00:08:21.629 --> 00:08:23.509 after another? Like, how did you choose what 00:08:23.509 --> 00:08:29.259 to do after law school? I think... I did think 00:08:29.259 --> 00:08:32.220 about that. Yeah, early on, much more so than 00:08:32.220 --> 00:08:34.840 now in some ways, I was intentional about my 00:08:34.840 --> 00:08:36.639 career. I think when you aren't established, 00:08:36.940 --> 00:08:38.820 and I don't come from Toronto, I don't have lawyers 00:08:38.820 --> 00:08:43.240 in my family, I was trying to think how I could 00:08:43.240 --> 00:08:46.159 get my foot in the door in the way that it would 00:08:46.159 --> 00:08:48.679 stay. Because in criminal defense in particular, 00:08:48.799 --> 00:08:52.399 there's just a massive attrition of mid -level 00:08:52.399 --> 00:08:55.120 female lawyers. They tend to go to the Crown, 00:08:55.240 --> 00:08:57.100 they go to other areas of law. It's a pretty 00:08:57.100 --> 00:09:00.419 hostile. industry for people who want to build 00:09:00.419 --> 00:09:03.539 a family and so I really wanted to establish 00:09:03.539 --> 00:09:06.100 myself as much as I could early on thinking I 00:09:06.100 --> 00:09:08.419 do want to have a family and I want to be able 00:09:08.419 --> 00:09:11.379 to do so when I'm in a place where people will 00:09:11.379 --> 00:09:14.440 accommodate that and understand that even though 00:09:14.440 --> 00:09:16.039 I now have to take time for my family I'll be 00:09:16.039 --> 00:09:18.820 back and I'll be so we're talking in terms of 00:09:18.820 --> 00:09:22.100 the family consideration the work life balance 00:09:22.100 --> 00:09:23.960 piece? Is that what we're talking about? Or is 00:09:23.960 --> 00:09:27.159 it the dynamics of the job? Is it the types of 00:09:27.159 --> 00:09:30.120 matters that you're dealing with? What is the 00:09:30.120 --> 00:09:33.600 hostility there? It's a little bit of both. And, 00:09:33.620 --> 00:09:35.580 you know, I appreciate work -life balance in 00:09:35.580 --> 00:09:37.980 quotation marks, because it really is just a 00:09:37.980 --> 00:09:40.440 matter of, you know, sometimes if my kid is sick, 00:09:40.580 --> 00:09:42.980 I'm free to take the afternoon off, but then 00:09:42.980 --> 00:09:44.799 I wake up at four in the morning to finish the 00:09:44.799 --> 00:09:48.139 work, right? Like, there's that piece. But what 00:09:48.139 --> 00:09:52.769 you find when you're in criminal defense is It's 00:09:52.769 --> 00:09:55.269 a lot of external deadlines. You just really 00:09:55.269 --> 00:09:58.330 don't have the ability to control your own practice 00:09:58.330 --> 00:10:01.129 and your own workload the way you would like. 00:10:01.210 --> 00:10:03.590 And you're in court, which is like being in an 00:10:03.590 --> 00:10:06.149 operating theater. You can't check your phone. 00:10:06.309 --> 00:10:09.370 You can't call someone if the judge says we're 00:10:09.370 --> 00:10:12.250 going to sit late. You can't say no without risking 00:10:12.250 --> 00:10:16.210 being held in contempt. And the daycare starts 00:10:16.210 --> 00:10:18.750 charging by the minute after 6 p .m. I see a 00:10:18.750 --> 00:10:22.169 lot of people nodding at that one. So it is, 00:10:22.190 --> 00:10:24.090 there's a lot of people, especially given the 00:10:24.090 --> 00:10:27.649 attrition of women, who don't necessarily appreciate 00:10:27.649 --> 00:10:31.629 what it looks like to run a full practice and 00:10:31.629 --> 00:10:36.250 also have a family life. And so I wanted to at 00:10:36.250 --> 00:10:38.809 least have a bit of a reputation and a sense 00:10:38.809 --> 00:10:41.370 that people trusted me by the time I got to the 00:10:41.370 --> 00:10:43.169 stage of having to stand up in court and saying, 00:10:43.690 --> 00:10:47.409 I have obligations. I need to leave. And now, 00:10:47.450 --> 00:10:51.429 did you find people at that stage that were supportive 00:10:51.429 --> 00:10:56.549 of this desire on your front to stay in the profession 00:10:56.549 --> 00:10:59.929 in a specific field? Did you start to get mentors 00:10:59.929 --> 00:11:04.049 at that time in your career? Did you find the 00:11:04.049 --> 00:11:07.070 people? Were they going to nurture you? Yes. 00:11:07.549 --> 00:11:12.049 actually. So mentors and peers. There were women 00:11:12.049 --> 00:11:15.190 who were a little ahead of me who had children 00:11:15.190 --> 00:11:17.769 slightly older who would give me the cheat codes. 00:11:18.649 --> 00:11:23.889 And then my then boss, later law partner, Frank 00:11:23.889 --> 00:11:27.070 Adario, was also really instrumental. And that's 00:11:27.070 --> 00:11:28.549 a good example of someone who already has all 00:11:28.549 --> 00:11:31.450 the privilege using it for good. I think I was 00:11:31.450 --> 00:11:34.820 the first female. criminal defense associate 00:11:34.820 --> 00:11:38.600 in the city who got any kind of top up for parental 00:11:38.600 --> 00:11:41.779 leave. And then, of course, I immediately told 00:11:41.779 --> 00:11:45.279 all my friends and it became much more of a standard 00:11:45.279 --> 00:11:48.480 market thing. But that was a big deal. Frank 00:11:48.480 --> 00:11:50.320 didn't have to do that. He could have said no. 00:11:50.399 --> 00:11:52.899 And what would I have done? And so the fact that 00:11:52.899 --> 00:11:56.419 he was willing to create a new precedent in that 00:11:56.419 --> 00:12:00.279 way made me feel a lot more welcome. And I think 00:12:00.279 --> 00:12:04.879 a certain amount of loyalty. to him when I came 00:12:04.879 --> 00:12:07.600 back, and that it was really good for our professional 00:12:07.600 --> 00:12:12.679 relationship as well. So how long were you together 00:12:12.679 --> 00:12:15.000 in that firm, and then when did you decide to 00:12:15.000 --> 00:12:18.919 branch out on your own? It was eight years. Eight 00:12:18.919 --> 00:12:22.659 years. And then in January 2021, which is the 00:12:22.659 --> 00:12:25.559 absolute best time to do anything new right in 00:12:25.559 --> 00:12:28.580 the middle of COVID, was when I started my own 00:12:28.580 --> 00:12:35.070 firm. And what spurred that on? I think it's, 00:12:35.070 --> 00:12:39.149 so it's a combination of things. I love Frank, 00:12:39.230 --> 00:12:41.009 as I said, we still have a good relationship, 00:12:41.190 --> 00:12:45.409 but he was very much already at the apex of his 00:12:45.409 --> 00:12:49.799 career when I joined his firm. The dynamic was 00:12:49.799 --> 00:12:52.379 always going to be he's the dad of the firm and 00:12:52.379 --> 00:12:55.080 I'm the teenage babysitter, so to speak. It wasn't 00:12:55.080 --> 00:12:57.559 a place where I could control the direction of 00:12:57.559 --> 00:13:03.519 it, set its values, and really shape the business 00:13:03.519 --> 00:13:07.299 in the way I wanted to. And I have a pretty healthy 00:13:07.299 --> 00:13:09.799 anti -capitalist streak in my nature. I really 00:13:09.799 --> 00:13:12.840 liked the idea of running a firm that was a lot 00:13:12.840 --> 00:13:16.700 more... laterally organized, horizontal, involving 00:13:16.700 --> 00:13:20.000 everyone in decision -making, opening up the 00:13:20.000 --> 00:13:22.279 books so that everyone can see where the money 00:13:22.279 --> 00:13:24.539 comes in and where it goes. And that was the 00:13:24.539 --> 00:13:27.159 kind of thing where I had to start it myself 00:13:27.159 --> 00:13:30.539 if I wanted to do it. And so it was a friendly 00:13:30.539 --> 00:13:32.799 breakup. I told Frank, I think, four months before 00:13:32.799 --> 00:13:35.539 I left what I was thinking of doing. He supported 00:13:35.539 --> 00:13:39.970 me. We worked it all out. But it was sad. right 00:13:39.970 --> 00:13:43.210 because you're giving up a known good thing for 00:13:43.210 --> 00:13:45.610 the hope of something better and that always 00:13:45.610 --> 00:13:47.990 feels like you're doing something a bit crazy 00:13:47.990 --> 00:13:51.909 yeah and truly like what a time to be doing that 00:13:51.909 --> 00:13:57.429 but from the perspective of someone in the profession 00:13:57.429 --> 00:14:02.169 you've really continued to carve out not even 00:14:02.169 --> 00:14:05.990 a niche but real reputation and what you're known 00:14:05.990 --> 00:14:08.549 for, what do you think that is about? I know 00:14:08.549 --> 00:14:10.470 it's kind of like, let me compliment myself, 00:14:10.750 --> 00:14:13.710 but really, what do you think that you presented 00:14:13.710 --> 00:14:17.490 or offered that was maybe missing in criminal 00:14:17.490 --> 00:14:19.850 defense or just the profession generally? What 00:14:19.850 --> 00:14:23.970 do you think Savard LLP represents to those of 00:14:23.970 --> 00:14:30.629 the team representation? I think it's, I would 00:14:30.629 --> 00:14:33.879 like it to be more than just a reputation that's 00:14:33.879 --> 00:14:36.639 built on the cases that make the papers because 00:14:36.639 --> 00:14:39.259 that's a very specific type of case I know we'll 00:14:39.259 --> 00:14:42.039 speak about that and it's actually quite a small 00:14:42.039 --> 00:14:46.419 part of my practice the thing that got me into 00:14:46.419 --> 00:14:50.000 criminal defense law was trying to level the 00:14:50.000 --> 00:14:56.080 playing field and what I hope it offers is or 00:14:56.080 --> 00:14:59.360 what I'd like it to offer if I'm thinking aspirationally 00:14:59.360 --> 00:15:04.259 is just a five -star experience at a price that 00:15:04.259 --> 00:15:06.620 is on a sliding scale, right? It's a bit of a 00:15:06.620 --> 00:15:09.259 Robin Hood model. I obviously have private clients 00:15:09.259 --> 00:15:13.000 and, you know, sometimes I worry about the fact 00:15:13.000 --> 00:15:15.659 that I couldn't afford myself if I got in trouble, 00:15:15.779 --> 00:15:19.779 but I keep, you know, minimum of 30 % of my practice 00:15:19.779 --> 00:15:24.659 is either legal aid or pro bono and usually large 00:15:24.659 --> 00:15:28.960 cases, murders, or something that's very much 00:15:30.500 --> 00:15:34.220 I would say of the same type as the cases that 00:15:34.220 --> 00:15:35.899 got me interested in the first place, right? 00:15:35.940 --> 00:15:37.919 Cases where maybe some colleagues aren't touching 00:15:37.919 --> 00:15:40.539 them, they're maybe politically unpopular. I've 00:15:40.539 --> 00:15:43.259 done a ton of protest cases in the last couple 00:15:43.259 --> 00:15:46.679 of years, for example, because that's been an 00:15:46.679 --> 00:15:49.179 area where freedom of expression and the criminal 00:15:49.179 --> 00:15:51.059 law have intersected in a really interesting 00:15:51.059 --> 00:15:57.659 way. And I think being able to offer clients 00:15:58.570 --> 00:16:02.669 That level of service, informed by the type of 00:16:02.669 --> 00:16:04.629 interesting work that normally you only get on 00:16:04.629 --> 00:16:06.990 a legal aid certificate, is what makes our firm 00:16:06.990 --> 00:16:11.830 unique. And hopefully as well a feeling that 00:16:11.830 --> 00:16:14.529 they've got someone on their side in a real sense. 00:16:14.769 --> 00:16:18.029 I don't put many limits on who I represent and 00:16:18.029 --> 00:16:19.950 who I don't represent, but we do have a no police 00:16:19.950 --> 00:16:22.230 rule. So we don't represent officers who are 00:16:22.230 --> 00:16:24.509 charged in the line of duty. There's no direct 00:16:24.509 --> 00:16:28.730 conflict there, but most of my clients, are there 00:16:28.730 --> 00:16:31.149 because of negative experiences they've had with 00:16:31.149 --> 00:16:33.870 the police and for them to meet someone in the 00:16:33.870 --> 00:16:37.730 waiting room or to feel like um you know i'm 00:16:37.730 --> 00:16:40.250 actually on the side of state excess in some 00:16:40.250 --> 00:16:42.549 cases uh was something i didn't particularly 00:16:42.549 --> 00:16:46.769 want so that answers it no no it does it does 00:16:46.769 --> 00:16:49.269 i just want to go a little bit further into that 00:16:49.269 --> 00:16:53.070 and talk about how you decide about which cases 00:16:53.070 --> 00:16:55.850 you take on and then i'm wondering how it squares 00:16:55.850 --> 00:17:00.350 with clients that you may not find as sympathetic 00:17:00.350 --> 00:17:03.570 or who have potentially done something that you 00:17:03.570 --> 00:17:06.190 disagree with? What is that matrix like? How 00:17:06.190 --> 00:17:09.950 do you balance and how do you decide? The simple 00:17:09.950 --> 00:17:12.569 answer is two out of three. So I have this little 00:17:12.569 --> 00:17:15.950 triangle and every case that comes into my office 00:17:15.950 --> 00:17:19.849 has to have at least two out of the three criteria. 00:17:19.910 --> 00:17:22.910 So it either has to have very interesting or 00:17:22.910 --> 00:17:25.789 novel legal issues. That sort of scratches the 00:17:25.789 --> 00:17:29.569 intellectual precedent -setting itch. Sympathetic 00:17:29.569 --> 00:17:32.869 client calls me back to the human nature of the 00:17:32.869 --> 00:17:35.829 work, and it just is always better if it's someone 00:17:35.829 --> 00:17:39.069 you enjoy spending time with, you want to help 00:17:39.069 --> 00:17:41.670 situate them as well as you can for the rest 00:17:41.670 --> 00:17:44.410 of their life going forward, or pays the bills. 00:17:44.509 --> 00:17:47.470 So any two out of the three. And so, yes, I have 00:17:47.470 --> 00:17:50.150 had clients who paid the bills, and their cases 00:17:50.150 --> 00:17:52.690 raised interesting legal issues. didn't particularly 00:17:52.690 --> 00:17:55.289 love them, wouldn't necessarily be the clients 00:17:55.289 --> 00:17:58.650 you think either. And the really tough cases 00:17:58.650 --> 00:18:00.769 are the ones where you take it on, something 00:18:00.769 --> 00:18:04.130 changes, and you find that, you know, now you're 00:18:04.130 --> 00:18:08.369 down to one or zero criteria. And then, of course, 00:18:08.390 --> 00:18:10.410 you're limited ethically in your ability to get 00:18:10.410 --> 00:18:13.630 off the record. But overall, I think it contributes 00:18:13.630 --> 00:18:17.670 to job satisfaction. And it also takes my own 00:18:17.670 --> 00:18:19.730 personal feeling out of the equation because 00:18:20.430 --> 00:18:24.829 The last thing I want to do is be unchecked in 00:18:24.829 --> 00:18:29.670 some of my biases and let that infect in too 00:18:29.670 --> 00:18:34.170 many cases the type of work I take on. Is that 00:18:34.170 --> 00:18:37.289 like a muscle? Are you struck by that, taking 00:18:37.289 --> 00:18:39.730 your personal feelings out of the equation? Is 00:18:39.730 --> 00:18:42.450 that something you developed and did it come 00:18:42.450 --> 00:18:45.069 naturally to you? Is it something you're now 00:18:45.069 --> 00:18:49.079 pretty adept at? It is definitely a muscle in 00:18:49.079 --> 00:18:52.440 the sense that the more deliberately you try 00:18:52.440 --> 00:18:55.279 to force yourself to check yourself, the more 00:18:55.279 --> 00:18:58.339 naturally it comes. And I also think there's 00:18:58.339 --> 00:19:03.380 safety in numbers. I run a firm. I think I am 00:19:03.380 --> 00:19:08.180 the only white person and the only not minority 00:19:08.180 --> 00:19:12.000 person in some way. So part of what I do when 00:19:12.000 --> 00:19:14.059 I think about taking on a new client or a new 00:19:14.059 --> 00:19:16.950 cause, is I open it up to the group, right? Because 00:19:16.950 --> 00:19:20.349 my racialized or queer associates might have 00:19:20.349 --> 00:19:22.690 a different view about a file that I'm considering. 00:19:22.950 --> 00:19:25.750 So any gray area file where I'm not sure, we 00:19:25.750 --> 00:19:28.089 do open it up to the group. And part of the rule 00:19:28.089 --> 00:19:30.369 too at my office is if anyone doesn't want to 00:19:30.369 --> 00:19:32.549 work on a particular file, they don't have to. 00:19:33.250 --> 00:19:36.410 But so far there haven't been any internal conflicts 00:19:36.410 --> 00:19:38.309 like that because we're pretty consistent in 00:19:38.309 --> 00:19:42.089 what we agree to take on. That sounds like a... 00:19:42.279 --> 00:19:44.559 fantastic model and really walking the walk of 00:19:44.559 --> 00:19:48.440 that lateral distribution of power, I guess it 00:19:48.440 --> 00:19:50.920 might be. Yeah, I mean, that's the goal, right? 00:19:51.019 --> 00:19:53.940 And sometimes I really do hate the democracy 00:19:53.940 --> 00:19:56.980 of it. As a manager, it's very easy. It's true. 00:19:57.140 --> 00:19:59.839 It's very easy to be a bad person when you're 00:19:59.839 --> 00:20:03.579 a manager. And you can feel that urge to treat 00:20:03.579 --> 00:20:06.900 your associates like... inventory just creeping 00:20:06.900 --> 00:20:09.259 up into the back of your head and you know my 00:20:09.259 --> 00:20:11.720 associates collectively bargain every december 00:20:11.720 --> 00:20:13.599 i get an email from them with their wish list 00:20:13.599 --> 00:20:15.839 and i always have to go just take the rest of 00:20:15.839 --> 00:20:19.039 the day off and have a beer so that i can come 00:20:19.039 --> 00:20:21.599 back to it with the objective mindset knowing 00:20:21.599 --> 00:20:25.039 what i want my workplace to be and not give in 00:20:25.039 --> 00:20:30.400 to some of those really more i guess super -villainy 00:20:30.400 --> 00:20:32.200 thoughts that sometimes come to you when you're 00:20:32.200 --> 00:20:35.079 the boss and you have the least potential to 00:20:35.079 --> 00:20:37.480 exploit or profit off the people working for 00:20:37.480 --> 00:20:39.319 you. I think that's so cool, though, because 00:20:39.319 --> 00:20:43.720 it's easy to hold beliefs and then actually put 00:20:43.720 --> 00:20:47.880 them in action. It's different and can conflict 00:20:47.880 --> 00:20:51.539 with your own personal wishes, desires and self 00:20:51.539 --> 00:20:53.859 -preservation, right? Yeah, I think choosing 00:20:53.859 --> 00:20:56.180 to be a good person, it turns out it feels very 00:20:56.180 --> 00:20:58.339 different than thinking you're a good person 00:20:58.339 --> 00:21:00.700 or feeling like a good person they're they're 00:21:00.700 --> 00:21:02.920 two very different things but like you said it's 00:21:02.920 --> 00:21:05.900 a muscle and and hopefully over time i'll get 00:21:05.900 --> 00:21:08.920 there i think i think you're well on your way 00:21:08.920 --> 00:21:16.200 um okay let's talk about what we uh many of us 00:21:16.200 --> 00:21:17.579 are really interested in talking about today 00:21:17.579 --> 00:21:24.579 how was that hockey canada case and trial So 00:21:24.579 --> 00:21:27.599 as I said to JP, I'm going to share what I've 00:21:27.599 --> 00:21:30.119 said publicly and what is available to be shared 00:21:30.119 --> 00:21:32.259 publicly. I won't speak about anything confidential 00:21:32.259 --> 00:21:37.019 or privileged for this case. But I would say 00:21:37.019 --> 00:21:39.740 a few things stood out to me. First is obviously 00:21:39.740 --> 00:21:42.500 the level of scrutiny. I'd had some experience 00:21:42.500 --> 00:21:45.640 with high profile cases before, but this one 00:21:45.640 --> 00:21:50.259 really, I think, ignited interest because of 00:21:50.259 --> 00:21:53.740 the... intersectionality of it. Canadian values, 00:21:53.980 --> 00:21:58.400 when it came to sex, when it came to sport, especially 00:21:58.400 --> 00:22:00.440 our national sport, when it came to the criminal 00:22:00.440 --> 00:22:03.279 justice system, all really dovetailed and everyone 00:22:03.279 --> 00:22:05.180 had thoughts about it and no one was neutral, 00:22:05.380 --> 00:22:09.339 including people in my own family. So I would 00:22:09.339 --> 00:22:11.980 say just the sheer amount of scrutiny that was 00:22:11.980 --> 00:22:15.279 placed on us, myself and my co -counsel, the 00:22:15.279 --> 00:22:18.579 council for the co -defendants as well, made 00:22:18.579 --> 00:22:22.630 it different. The other two things that made 00:22:22.630 --> 00:22:28.329 it different were the number of defendants charged 00:22:28.329 --> 00:22:31.750 and what that meant for running the defense. 00:22:32.250 --> 00:22:35.190 Part of being a criminal defense lawyer is in 00:22:35.190 --> 00:22:39.410 some way marching to the beat of your own drum 00:22:39.410 --> 00:22:42.559 and striking out. on your own course and having 00:22:42.559 --> 00:22:45.880 to live in a courtroom for so many months with 00:22:45.880 --> 00:22:49.019 four other legal teams not all of whom necessarily 00:22:49.019 --> 00:22:51.980 approach the issues or the strategy the same 00:22:51.980 --> 00:22:56.079 way was a really interesting challenge and learning 00:22:56.079 --> 00:23:00.660 how to work with and around people who maybe 00:23:00.660 --> 00:23:02.339 think about the law a little bit differently 00:23:02.339 --> 00:23:05.200 or think about their clients or the role of the 00:23:05.200 --> 00:23:07.099 media a bit differently that was really interesting 00:23:08.000 --> 00:23:10.839 And finally, I'd say this case is unique and 00:23:10.839 --> 00:23:14.099 this is something I've said publicly in the sheer 00:23:14.099 --> 00:23:17.299 weakness of the case. I think it's probably pretty 00:23:17.299 --> 00:23:19.359 well known that when it was first investigated, 00:23:19.559 --> 00:23:25.460 no charges were laid. And the facts that led 00:23:25.460 --> 00:23:29.160 to that decision back in 2018 came out in full 00:23:29.160 --> 00:23:35.940 at the trial. And so I would say my... My disappointment 00:23:35.940 --> 00:23:39.519 with the fact that this was going to trial, it 00:23:39.519 --> 00:23:42.720 was heightened in this particular case because 00:23:42.720 --> 00:23:46.500 something I say to every single one of my clients, 00:23:46.640 --> 00:23:49.660 whether they're a defendant and sometimes I represent 00:23:49.660 --> 00:23:53.039 witnesses as well, is trials are never vindicated, 00:23:53.220 --> 00:23:55.559 right? No one comes out at the end of a criminal 00:23:55.559 --> 00:23:58.380 trial thinking, man, I feel good about that. 00:23:58.480 --> 00:24:02.799 I have really, really shown everyone who I am. 00:24:04.260 --> 00:24:07.539 what I stand for and I feel amazing about how 00:24:07.539 --> 00:24:10.759 that's being portrayed and accepted by society, 00:24:11.000 --> 00:24:14.019 the judge, my family, etc. No one comes out of 00:24:14.019 --> 00:24:16.619 a trial like that, witnesses, defendants. And 00:24:16.619 --> 00:24:19.359 so having to go through that trial when it was 00:24:19.359 --> 00:24:23.519 a massive financial burden on the state, when 00:24:23.519 --> 00:24:25.720 it obviously had major economic consequences 00:24:25.720 --> 00:24:31.000 for our defending clients, felt frustrating in 00:24:31.000 --> 00:24:33.519 a way it normally isn't. So is your opinion then 00:24:33.519 --> 00:24:37.599 that the Crown probably did not have a probability 00:24:37.599 --> 00:24:40.460 of conviction and shouldn't have brought it forward? 00:24:41.279 --> 00:24:44.319 That's a tough question to answer, not just because 00:24:44.319 --> 00:24:46.779 I won't speak about confidential information, 00:24:46.920 --> 00:24:52.839 but because individual Crown attorneys are really 00:24:52.839 --> 00:24:55.440 limited in how they exercise their discretion. 00:24:56.779 --> 00:24:59.980 There is a Crown Policy Manual in Ontario that 00:24:59.980 --> 00:25:03.140 says, for example, restorative justice is not 00:25:03.140 --> 00:25:06.700 to be offered in sexual assault cases, which 00:25:06.700 --> 00:25:10.099 can be very tough, especially if you have a case 00:25:10.099 --> 00:25:13.119 like the one we're talking about where anyone 00:25:13.119 --> 00:25:15.339 who's followed in the media can see a pretty 00:25:15.339 --> 00:25:18.740 big grey area there, at least morally, if not 00:25:18.740 --> 00:25:21.259 legally. I might be able to say, legally, I think 00:25:21.259 --> 00:25:23.759 this case shouldn't have been brought. Do I think 00:25:23.759 --> 00:25:26.539 anyone comes out of that case looking good? Not 00:25:26.539 --> 00:25:30.099 particularly. And I think that pushing it through 00:25:30.099 --> 00:25:34.559 an adversarial model really just discourages 00:25:34.559 --> 00:25:37.039 any kind of nuanced thinking about it, right? 00:25:37.200 --> 00:25:40.279 You could never go to someone who is facing years 00:25:40.279 --> 00:25:44.140 of jail and say, okay, but let's explore how 00:25:44.140 --> 00:25:45.859 you might have contributed to this situation. 00:25:46.180 --> 00:25:48.740 They're going to say, why are you trying to treat 00:25:48.740 --> 00:25:51.440 my diabetes? I have a gunshot wound. Right. And 00:25:51.440 --> 00:25:54.140 so that and the same thing for a witness, a witness 00:25:54.140 --> 00:25:56.460 who's told you're going to be challenged. You 00:25:56.460 --> 00:25:58.619 might be in the stand for days. Any amount of 00:25:58.619 --> 00:26:00.680 nuance in your story is going to be exploited. 00:26:01.220 --> 00:26:03.599 You know, they'll double down on a version of 00:26:03.599 --> 00:26:09.180 events that may be at best under nuanced and 00:26:09.180 --> 00:26:11.660 at worst and frankly quite common in some of 00:26:11.660 --> 00:26:16.940 the cases I see deliberately not true. And in 00:26:16.940 --> 00:26:20.259 a way. that's not unsympathetic, right? Someone 00:26:20.259 --> 00:26:23.619 who has been told their whole life that there 00:26:23.619 --> 00:26:28.859 is no excuse for choosing certain types of sexual 00:26:28.859 --> 00:26:33.700 behavior is going to find it attractive to remove 00:26:33.700 --> 00:26:35.640 the element of choice, especially if they're 00:26:35.640 --> 00:26:37.440 talking to someone like a parent or an authority 00:26:37.440 --> 00:26:41.099 figure that may not be the person who they'd 00:26:41.099 --> 00:26:43.160 normally want to be the most honest with. And 00:26:43.160 --> 00:26:46.819 so taking the nuance out of it, I think is a 00:26:46.819 --> 00:26:50.250 real, It's really such a terrible thing. And 00:26:50.250 --> 00:26:53.369 allowing these gray area cases where people are 00:26:53.369 --> 00:26:56.990 willing to meet in the middle to proceed down 00:26:56.990 --> 00:26:59.150 that route, I think, would have been a great 00:26:59.150 --> 00:27:01.650 way to deal with a case like this one. Yeah, 00:27:01.670 --> 00:27:08.029 you mentioned nuance. I mean, that was unprecedented 00:27:08.029 --> 00:27:11.210 in terms of the societal political discourse 00:27:11.210 --> 00:27:16.630 around it. Very black and white, not too much. 00:27:17.519 --> 00:27:21.720 interesting, even exploring, acknowledging gray 00:27:21.720 --> 00:27:25.440 area. I thought it was interesting and I watched 00:27:25.440 --> 00:27:28.700 the post -verdict press conference and you talked 00:27:28.700 --> 00:27:31.900 a little bit about the differences in the style 00:27:31.900 --> 00:27:35.319 and approaches of the other defense counsel. 00:27:35.640 --> 00:27:38.759 You were the only one that mentioned restorative 00:27:38.759 --> 00:27:42.759 justice. I think I'm okay to say, because you 00:27:42.759 --> 00:27:45.480 said it outside the courthouse, that your client 00:27:45.480 --> 00:27:47.099 would have been open to that process and to be 00:27:47.099 --> 00:27:51.059 named publicly. Why did you think it was important 00:27:51.059 --> 00:27:54.200 to highlight that, and why do you think that 00:27:54.200 --> 00:27:58.980 this case, or special assault cases in general, 00:27:59.059 --> 00:28:01.819 may actually be suited for restorative justice? 00:28:02.799 --> 00:28:06.299 um i think i first of all not every case right 00:28:06.299 --> 00:28:09.279 there are obviously cases if you're talking about 00:28:09.279 --> 00:28:11.720 you know a minor and an adult or someone in a 00:28:11.720 --> 00:28:13.700 position of power that are much more clear -cut 00:28:13.700 --> 00:28:17.460 not suited to it but sexual behavior generally 00:28:17.460 --> 00:28:23.140 among adults is the very type of thing that defies 00:28:24.220 --> 00:28:27.460 black letter law and forensic reconstruction 00:28:27.460 --> 00:28:30.500 the whole idea of sexual behavior is you are 00:28:30.500 --> 00:28:32.640 kind of supposed to take your brain out of it 00:28:32.640 --> 00:28:35.539 and so to then ask people who have gotten into 00:28:35.539 --> 00:28:39.279 that state to go back recreate what happened 00:28:39.279 --> 00:28:42.140 for a judge who doesn't share anything about 00:28:42.140 --> 00:28:44.700 your history doesn't know what kind of a person 00:28:44.700 --> 00:28:47.539 you are, and have them decide what reality is 00:28:47.539 --> 00:28:50.240 or what happened in that room, it's particularly 00:28:50.240 --> 00:28:54.420 ill -suited to that sort of forensic analysis 00:28:54.420 --> 00:28:56.960 that is the bread and butter of criminal cases. 00:28:57.380 --> 00:29:02.240 And similarly, I think by the time a case gets 00:29:02.240 --> 00:29:05.319 to me, it really is a band -aid solution for 00:29:05.319 --> 00:29:09.710 a problem that had its roots. deep in the past, 00:29:09.809 --> 00:29:12.309 whether it's my clients past, the complainants 00:29:12.309 --> 00:29:15.670 past, their parents past, there's a whole world 00:29:15.670 --> 00:29:17.950 that contributed to everyone getting there. And 00:29:17.950 --> 00:29:20.609 one of the things that you can do, one of the 00:29:20.609 --> 00:29:23.150 things, for example, a young man with a large 00:29:23.150 --> 00:29:26.029 platform and a bunch of other young men willing 00:29:26.029 --> 00:29:29.490 to listen to him could do is provide a certain 00:29:29.490 --> 00:29:33.190 amount of education on how, for example, legal 00:29:33.190 --> 00:29:36.329 consent sets both too high and too low a bar 00:29:36.329 --> 00:29:40.390 for how we want to behave when we are human beings 00:29:40.390 --> 00:29:42.710 operating in society, the responsibility you 00:29:42.710 --> 00:29:45.549 have if you're the literal bigger person in the 00:29:45.549 --> 00:29:48.490 room. And those conversations just can't happen 00:29:48.490 --> 00:29:51.410 once you've put people in their respective corners. 00:29:53.289 --> 00:29:57.670 And now I acknowledge and realize that I'm not 00:29:57.670 --> 00:30:00.829 a man asking you this, which may be some unfairness 00:30:00.829 --> 00:30:03.369 in even asking the question, but I do want to 00:30:03.369 --> 00:30:06.170 pose it to you because it's... Was Bill present 00:30:06.170 --> 00:30:09.490 in the discourse? It's a wonderful, I say that 00:30:09.490 --> 00:30:13.490 sarcastically, you know, opinion piece in the 00:30:13.490 --> 00:30:17.950 Trump Star about female defense lawyers and basically 00:30:17.950 --> 00:30:19.829 how do they sleep at night, how do they look 00:30:19.829 --> 00:30:21.650 at themselves in the mirror, any other metaphor 00:30:21.650 --> 00:30:25.990 you want to insert there? How do you think about 00:30:25.990 --> 00:30:29.809 that? Is that a separate conversation? Is it 00:30:29.809 --> 00:30:32.670 one worth having? Does it interfere with your 00:30:32.670 --> 00:30:35.279 work? You mentioned some family members that 00:30:35.279 --> 00:30:38.359 you may have had conversations with. How do you, 00:30:38.420 --> 00:30:42.819 I don't even want to say reconcile, but how do 00:30:42.819 --> 00:30:45.299 you interact? What's your relationship with that 00:30:45.299 --> 00:30:51.500 argument? I think it matters that I'm a woman. 00:30:51.579 --> 00:30:54.599 I'm not one of those people who would say any 00:30:54.599 --> 00:30:58.000 lawyer can do the exact same job and there's 00:30:58.000 --> 00:31:00.480 no difference. I think it matters in these cases, 00:31:00.500 --> 00:31:02.900 actually. But I think it matters in a good way. 00:31:04.120 --> 00:31:09.319 And I would reject what I'd call the carceral 00:31:09.319 --> 00:31:12.000 feminist argument against me doing this work, 00:31:12.059 --> 00:31:14.259 because if you accept that criminal defense work 00:31:14.259 --> 00:31:17.480 is a necessary job, and you accept the premise 00:31:17.480 --> 00:31:20.359 that people should only go to jail if the crime 00:31:20.359 --> 00:31:24.480 is proven beyond a reasonable doubt, then what 00:31:24.480 --> 00:31:28.980 you have in a lot of these cases... is a really 00:31:28.980 --> 00:31:31.819 tough situation where the Crown attorney has, 00:31:32.099 --> 00:31:35.099 in some cases, abdicated its discretion, put 00:31:35.099 --> 00:31:37.960 its entire case on the back of one civilian witness 00:31:37.960 --> 00:31:39.740 who's probably never been in a courtroom before. 00:31:40.859 --> 00:31:45.220 It's very hard on any evidentiary record to get 00:31:45.220 --> 00:31:47.059 to proof beyond a reasonable doubt, as it should 00:31:47.059 --> 00:31:48.660 be, because you're looking at putting a human 00:31:48.660 --> 00:31:52.299 being in a cage at the end of it. But it's still 00:31:52.299 --> 00:31:57.460 really hard on that one witness. a woman doing 00:31:57.460 --> 00:32:00.920 this job, is you can do this necessary work and 00:32:00.920 --> 00:32:04.500 bring to it, nonetheless, a level of empathy. 00:32:04.779 --> 00:32:10.380 And I wouldn't say that an almost common feeling 00:32:10.380 --> 00:32:14.119 with that witness in a way that some co -counsel 00:32:14.119 --> 00:32:16.980 cannot. And I will say, I worked with some very 00:32:16.980 --> 00:32:19.720 ethical male co -counsel in this case. We would 00:32:19.720 --> 00:32:24.000 moot ideas. And one of them might say, oh, I 00:32:24.000 --> 00:32:27.359 think this, or I think this is implausible. And 00:32:27.359 --> 00:32:28.980 then if I turn to them and said, actually, that's 00:32:28.980 --> 00:32:32.839 not implausible, I could see as a woman how XYZ 00:32:32.839 --> 00:32:34.720 might actually happen. That would be something 00:32:34.720 --> 00:32:36.579 that does make sense to me. And they would listen 00:32:36.579 --> 00:32:38.799 and they would learn a little bit from it. So 00:32:38.799 --> 00:32:42.279 taking women out of the room, I think, risks 00:32:42.279 --> 00:32:45.380 removing the little bit of nuance that you can 00:32:45.380 --> 00:32:47.460 infuse into this proceeding and a little bit 00:32:47.460 --> 00:32:50.440 of empathy that you can bring to a cross -examination. 00:32:52.069 --> 00:32:55.890 And taking us back to a world where the only 00:32:55.890 --> 00:32:58.869 strategy was to quote -unquote whack the complainant. 00:32:58.990 --> 00:33:03.869 There's something about having been in similar 00:33:03.869 --> 00:33:05.869 social situations that allows you to make eye 00:33:05.869 --> 00:33:08.809 contact and say, look, I get it. You don't want 00:33:08.809 --> 00:33:11.170 to talk to your mom about things that you think 00:33:11.170 --> 00:33:14.750 she won't approve of. And getting someone nodding 00:33:14.750 --> 00:33:16.410 along with you a little bit. Not every party 00:33:16.410 --> 00:33:20.359 you're across. That kind of moment where you 00:33:20.359 --> 00:33:22.420 actually are able to show you're not just a stranger 00:33:22.420 --> 00:33:26.259 intruding, but someone who's just had more of 00:33:26.259 --> 00:33:29.339 a set of common experiences. That's so interesting. 00:33:29.519 --> 00:33:31.079 I want to talk to you a little bit about your 00:33:31.079 --> 00:33:34.039 strategies around cross -examination. Not specific 00:33:34.039 --> 00:33:38.099 to this case, but how do you think about your 00:33:38.099 --> 00:33:42.059 approach? Like, I mean, do you, do you, your 00:33:42.059 --> 00:33:47.279 tone, dynamic? relating to the complainant does 00:33:47.279 --> 00:33:51.039 it change based on who is in front of you or 00:33:51.039 --> 00:33:53.039 do you kind of have a baseline from what you 00:33:53.039 --> 00:33:56.319 operate like how do you think about the I don't 00:33:56.319 --> 00:33:58.539 want to call it I think I'll call it the performance 00:33:58.539 --> 00:34:01.460 aspect of it like how do you think about that 00:34:01.460 --> 00:34:04.180 like how do you think about what type of energy 00:34:04.180 --> 00:34:08.039 you're entering the courtroom with well as you've 00:34:08.039 --> 00:34:12.219 alluded to I have a full range of energies that 00:34:12.219 --> 00:34:16.619 I can bring and I would say that it really depends 00:34:16.619 --> 00:34:21.760 on the witness. I often have my cross -examination 00:34:21.760 --> 00:34:23.840 mapped out in the sense of the broad points I 00:34:23.840 --> 00:34:26.760 want to make, but how I make those points really 00:34:26.760 --> 00:34:30.139 varies. If you have a very emotional witness, 00:34:30.420 --> 00:34:32.820 a witness who's very honest about the limits 00:34:32.820 --> 00:34:35.420 of their memory, a witness who seems to be trying 00:34:35.420 --> 00:34:37.679 their best to actually comply with their oath, 00:34:37.860 --> 00:34:41.429 then it's a very different energy than... if 00:34:41.429 --> 00:34:43.710 you see someone who you think is trying to game 00:34:43.710 --> 00:34:46.510 the system a little bit. And one thing I have 00:34:46.510 --> 00:34:51.269 no patience for is people who don't take their 00:34:51.269 --> 00:34:55.730 oath seriously and people who try to avoid answering 00:34:55.730 --> 00:34:59.730 questions because they don't like the way that 00:34:59.730 --> 00:35:03.190 the answer will sound. And so it can be that 00:35:03.190 --> 00:35:07.210 it switches as different topics come up. If I 00:35:07.210 --> 00:35:10.639 get the sense that someone is trying to be evasive 00:35:10.639 --> 00:35:15.340 or if i've heard them say under oath something 00:35:15.340 --> 00:35:18.800 that i know they said the opposite thing if i 00:35:18.800 --> 00:35:20.940 know they said the opposite thing three years 00:35:20.940 --> 00:35:27.000 ago then it's almost it's almost like my my mom 00:35:27.000 --> 00:35:30.619 voice comes out a little bit like well come on 00:35:30.619 --> 00:35:33.780 let's let's be clear here you're saying this 00:35:33.780 --> 00:35:36.059 now but you said the opposite three years ago 00:35:36.059 --> 00:35:38.820 and it really is the same voice i use with my 00:35:38.820 --> 00:35:41.949 kid when they're trying to get out of trouble 00:35:41.949 --> 00:35:45.590 because children tend to lie a lot, especially 00:35:45.590 --> 00:35:47.269 when they're very young. It just comes to them 00:35:47.269 --> 00:35:49.630 very naturally. And so I think my mom voice does 00:35:49.630 --> 00:35:51.550 come out a lot, especially if I get the sense 00:35:51.550 --> 00:35:55.369 that people are respecting their oath. I'm glad 00:35:55.369 --> 00:35:57.469 I haven't personally raised out any of this, 00:35:57.489 --> 00:36:00.170 but I know that we still have some time left, 00:36:00.269 --> 00:36:04.110 so I'm so close to there. I'm just wondering 00:36:04.110 --> 00:36:07.670 if you think about... little bit of distance 00:36:07.670 --> 00:36:11.849 now right it's been a few weeks i know you said 00:36:11.849 --> 00:36:14.269 that people don't leave a criminal trial feeling 00:36:14.269 --> 00:36:18.329 vindicated do you have hope for its impact more 00:36:18.329 --> 00:36:21.570 broadly maybe in terms of i'm thinking about 00:36:21.570 --> 00:36:24.769 two worlds the sport and then the justice system 00:36:24.769 --> 00:36:29.829 or legal system I have hope for society and sport 00:36:29.829 --> 00:36:35.070 because of the young people I know. And I'm sure 00:36:35.070 --> 00:36:38.869 many of you in this room would say the same thing. 00:36:38.969 --> 00:36:45.150 The level of openness and nuance that young people 00:36:45.150 --> 00:36:47.789 are capable of, especially when it comes to talking 00:36:47.789 --> 00:36:51.929 about sexual subjects, is unparalleled. It really 00:36:51.929 --> 00:36:55.110 is a breath of fresh air to talk to my child 00:36:55.110 --> 00:37:00.079 or my niece. and hear just how open they are 00:37:00.079 --> 00:37:02.260 and how supportive of their friends they are 00:37:02.260 --> 00:37:05.480 and how willing they are to depart from some 00:37:05.480 --> 00:37:10.340 of the very restrictive sexual norms that I think 00:37:10.340 --> 00:37:13.719 guided me and a lot of people of my vintage when 00:37:13.719 --> 00:37:15.340 we were growing up. So I have hope for that. 00:37:16.099 --> 00:37:19.119 My best friend actually works out at a gym that 00:37:19.119 --> 00:37:22.199 is populated largely by Hockey Canada feeder. 00:37:23.789 --> 00:37:27.030 uh athletes and so she heard during the trial 00:37:27.030 --> 00:37:29.929 just these incredibly nuanced conversations among 00:37:29.929 --> 00:37:34.409 14 and 15 year old boys athletes and so that 00:37:34.409 --> 00:37:39.230 those little vignettes that i get into that generation 00:37:39.230 --> 00:37:43.010 do make me feel very hopeful and learning what 00:37:43.010 --> 00:37:46.309 i did about hockey and the way we treat these 00:37:46.309 --> 00:37:48.230 young athletes as they're growing up the way 00:37:48.230 --> 00:37:50.150 we sort of just pull them away from their families 00:37:50.150 --> 00:37:53.159 stick them with a billet family and then train 00:37:53.159 --> 00:37:55.380 them like they're gladiators to entertain us. 00:37:55.500 --> 00:37:57.980 We really are the true villain of the piece on 00:37:57.980 --> 00:38:00.460 some level. And I think that culture is changing. 00:38:02.119 --> 00:38:06.099 But the legal system, I don't know, my jury is 00:38:06.099 --> 00:38:08.500 out. The last couple of times there was a very, 00:38:08.559 --> 00:38:11.820 no pun intended. The last couple of times there 00:38:11.820 --> 00:38:14.659 was a very high profile case that led to an unpopular 00:38:14.659 --> 00:38:18.960 verdict. There was some very performative reactionary 00:38:18.960 --> 00:38:24.139 and ultimately ineffective. uh steps taken by 00:38:24.139 --> 00:38:28.059 uh what was then the Trudeau government um and 00:38:28.059 --> 00:38:32.940 the large largely the outcome of that has been 00:38:32.940 --> 00:38:35.440 it takes these cases longer to get to trial it's 00:38:35.440 --> 00:38:37.679 more expensive for the people charged it eats 00:38:37.679 --> 00:38:40.219 up a lot of court time and now more cases are 00:38:40.219 --> 00:38:43.800 getting thrown out for delay so I worry that 00:38:43.800 --> 00:38:47.579 I you know I hope that there will be positive 00:38:49.420 --> 00:38:51.500 consequences. I hope that maybe we can reopen 00:38:51.500 --> 00:38:55.639 the restorative justice conversation. What I 00:38:55.639 --> 00:38:59.199 fear is that there will be some kind of similar 00:38:59.199 --> 00:39:03.860 reactionary, poorly thought out effort to make 00:39:03.860 --> 00:39:08.079 it easier to convict. and treat that as solving 00:39:08.079 --> 00:39:10.039 the problem once we do. Because the problem is 00:39:10.039 --> 00:39:11.960 not just laws that make it easier to convict. 00:39:12.039 --> 00:39:14.199 It's dusting off your hands at the end of that 00:39:14.199 --> 00:39:15.780 and saying, well, now we've made these laws, 00:39:15.900 --> 00:39:18.599 we don't need to worry anymore about the problem 00:39:18.599 --> 00:39:21.320 of sexual violence and sexual violence against 00:39:21.320 --> 00:39:24.719 women in particular, which, as we all know, is 00:39:24.719 --> 00:39:27.920 not the case. We do not change sexual behavior 00:39:27.920 --> 00:39:31.260 and attitudes just by making it easier for the 00:39:31.260 --> 00:39:33.719 few people who get prosecuted to completion to 00:39:33.719 --> 00:39:40.309 get convicted. I would like to open it to some 00:39:40.309 --> 00:39:42.250 questions from the floor. Okay, right back here. 00:39:43.449 --> 00:39:48.449 Great. So I work at a sports school, and there's 00:39:48.449 --> 00:39:54.989 a large chunk of students who play OHL and AAA 00:39:54.989 --> 00:39:59.869 and NHL players. And so I've done a lot of classes 00:39:59.869 --> 00:40:03.710 featuring you in the Toronto Life article, so 00:40:03.710 --> 00:40:07.150 I have two questions. One... We're going to talk 00:40:07.150 --> 00:40:14.110 about consent and ethical behavior versus criminal 00:40:14.110 --> 00:40:16.530 behavior, if you have any advice for that. And 00:40:16.530 --> 00:40:18.809 the second one is we're going to talk about your 00:40:18.809 --> 00:40:23.230 prison abolitionist. If you could talk a little 00:40:23.230 --> 00:40:24.550 bit more about that, what would it be for you? 00:40:25.150 --> 00:40:29.150 I love when, first of all, just to... I didn't 00:40:29.150 --> 00:40:31.010 want to be asking more questions, but I really 00:40:31.010 --> 00:40:32.570 wanted to talk about abolition because I was 00:40:32.570 --> 00:40:35.239 such a... thankfully heavily featured part of 00:40:35.239 --> 00:40:37.440 your profile, so I'm so glad that you raised 00:40:37.440 --> 00:40:40.679 both of those things. Yeah, I was surprised that 00:40:40.679 --> 00:40:43.320 Toronto Life even agreed to talk about prison 00:40:43.320 --> 00:40:45.500 abolition. I thought that was just a little throwaway 00:40:45.500 --> 00:40:49.820 I was giving her. So taking it in reverse order, 00:40:50.219 --> 00:40:53.860 I am a prison abolitionist in the sense that 00:40:53.860 --> 00:40:57.280 I believe that the resources we currently use 00:40:57.280 --> 00:41:00.320 for prison, almost to the dollar, could be better 00:41:00.320 --> 00:41:04.949 used invested in preventative measures that remove 00:41:04.949 --> 00:41:08.610 the need for prison altogether that is nice not 00:41:08.610 --> 00:41:14.530 everyone reacts that way and it is what keeps 00:41:14.530 --> 00:41:18.110 me going in cases where we talked about that 00:41:18.110 --> 00:41:21.369 triangle of the perfect comment where some of 00:41:21.369 --> 00:41:24.710 those criteria do disappear or a case where where 00:41:24.710 --> 00:41:27.849 you worry about whether or not the justice system 00:41:27.849 --> 00:41:30.510 is even capable of completing the search for 00:41:30.510 --> 00:41:33.300 truth If you start to realize the justice system 00:41:33.300 --> 00:41:37.099 is a poor construct and we almost never really 00:41:37.099 --> 00:41:40.119 get to the full truth, and you focus instead 00:41:40.119 --> 00:41:43.360 on what the outcomes are for people who proceed 00:41:43.360 --> 00:41:47.000 through the trial process, the vast majority 00:41:47.000 --> 00:41:50.699 of the harm that gets caused is to not just the 00:41:50.699 --> 00:41:53.119 person who goes to jail, but their families and 00:41:53.119 --> 00:41:57.000 the generational trauma that results. The number 00:41:57.000 --> 00:42:00.550 of clients I have who are... my clients because 00:42:00.550 --> 00:42:02.469 they didn't have, for example, a father figure 00:42:02.469 --> 00:42:04.489 because their father was serving time in jail 00:42:04.489 --> 00:42:07.670 is quite high. And so that tends to keep me going, 00:42:07.730 --> 00:42:12.130 even if I'm not quite sure otherwise where I 00:42:12.130 --> 00:42:15.929 fall on the facts of the case or my role in the 00:42:15.929 --> 00:42:22.550 justice system. In terms of consent, I can echo, 00:42:22.630 --> 00:42:25.590 I think, what I said earlier, or maybe emphasize 00:42:25.590 --> 00:42:31.809 it, which is that The legal bar for consent is 00:42:31.809 --> 00:42:36.010 both too low and too high for what we want to 00:42:36.010 --> 00:42:38.030 be doing and what we should expect of ourselves 00:42:38.030 --> 00:42:45.710 as human beings. It allows for the criminalization 00:42:45.710 --> 00:42:50.769 and the labeling as sex offenders of people who 00:42:50.769 --> 00:42:53.530 have done nothing more than what society has 00:42:53.530 --> 00:42:57.929 told them. is either permissible or something 00:42:57.929 --> 00:43:00.570 you can get away with. And the level of punishment 00:43:00.570 --> 00:43:03.849 and the level of condemnation that that attracts 00:43:03.849 --> 00:43:07.550 is disproportionate to what I think the level 00:43:07.550 --> 00:43:10.929 of fault is. So in that sense, the bar is too 00:43:10.929 --> 00:43:13.190 high. But it's also too low in the sense that 00:43:13.190 --> 00:43:15.230 the legal definition of consent has nothing to 00:43:15.230 --> 00:43:19.150 do with enthusiasm, satisfaction. I can consent 00:43:19.150 --> 00:43:22.429 to go visiting my great uncle at the hospital. 00:43:23.039 --> 00:43:25.659 And I choose to do it, but it doesn't mean I'm 00:43:25.659 --> 00:43:28.219 going to have a good time there, right? And surely, 00:43:28.480 --> 00:43:30.659 and this tends to work, especially if I speak 00:43:30.659 --> 00:43:32.800 to young boys, surely you want to be able to 00:43:32.800 --> 00:43:35.000 walk away from an interaction feeling like a 00:43:35.000 --> 00:43:37.460 pretty good person, right? Like you've given 00:43:37.460 --> 00:43:40.460 someone something good to talk or think about 00:43:40.460 --> 00:43:43.860 or whatever it is that helps make you feel like 00:43:43.860 --> 00:43:48.380 a man, right? And I feel like that legal definition 00:43:48.380 --> 00:43:51.320 of consent and this whole idea of you know getting 00:43:51.320 --> 00:43:53.900 consent videos yes it's useful circumstantial 00:43:53.900 --> 00:43:57.440 evidence in a criminal case but it's no substitute 00:43:57.440 --> 00:44:02.019 for actually making sure you've got engaged enthusiastic 00:44:02.019 --> 00:44:05.079 participation because then you don't even get 00:44:05.079 --> 00:44:07.519 a complaint right the fact that you're acquitted 00:44:07.519 --> 00:44:10.280 is a bit of a hollow victory if you know you've 00:44:10.280 --> 00:44:12.519 left someone unhappy enough to bring a complaint 00:44:12.519 --> 00:44:16.079 in the first place okay right over here okay 00:44:16.079 --> 00:44:19.599 let's write this one down um In sexual assault 00:44:19.599 --> 00:44:24.559 defense cases, what would you say is the extent 00:44:24.559 --> 00:44:27.159 does appointing a lawyer from a diverse background 00:44:27.159 --> 00:44:30.280 reflect a genuine commitment to equity and representation 00:44:30.280 --> 00:44:34.559 versus a strategic deployment of diversity to 00:44:34.559 --> 00:44:36.760 construct credibility to shape the public perception? 00:44:37.860 --> 00:44:41.159 Is this the Heather Mallett question? No, I don't 00:44:41.159 --> 00:44:46.039 know. It's a really good question because Especially 00:44:46.039 --> 00:44:48.260 when you're thinking about jury cases, there 00:44:48.260 --> 00:44:50.360 is a little bit of performance to it, right? 00:44:50.420 --> 00:44:55.239 You think, how is it going to look to the jury 00:44:55.239 --> 00:45:00.320 that I'm there defending this person? And so 00:45:00.320 --> 00:45:05.019 do I think that some defendants take that into 00:45:05.019 --> 00:45:07.440 account when they select their lawyers? A hundred 00:45:07.440 --> 00:45:09.340 percent. Can't stop people for picking lawyers 00:45:09.340 --> 00:45:11.900 for the wrong reasons. Certainly there are enough 00:45:11.900 --> 00:45:13.639 defendants who pick male lawyers because they 00:45:13.639 --> 00:45:15.300 think they'll be aggressive and effective in 00:45:15.300 --> 00:45:17.300 court, and they aren't always right about that. 00:45:17.440 --> 00:45:19.579 So we can't control why our clients pick us. 00:45:20.360 --> 00:45:25.820 What we can control is our awareness of our own 00:45:25.820 --> 00:45:29.739 particular brand of diversity and how we can 00:45:29.739 --> 00:45:34.280 use that to both effectively advocate for the 00:45:34.280 --> 00:45:36.179 outcome that we're routine to try to achieve, 00:45:36.300 --> 00:45:41.079 but also to minimize harm in the process. And 00:45:41.079 --> 00:45:44.719 I learn a lot about that from my associates. 00:45:45.619 --> 00:45:51.340 I have a couple of associates who are visibly 00:45:51.340 --> 00:45:55.039 Muslim. And the last case I had before the Hockey 00:45:55.039 --> 00:45:59.380 Canada trial involved a very similar grey area 00:45:59.380 --> 00:46:02.300 case where the complainant was Muslim and came 00:46:02.300 --> 00:46:05.579 from a very traditional family. And the benefit 00:46:05.579 --> 00:46:08.719 to my cross -examination of having those associates 00:46:08.719 --> 00:46:12.989 weigh in on, What would be a fair question? What 00:46:12.989 --> 00:46:15.750 would be an unfair question? What would be genuinely 00:46:15.750 --> 00:46:18.409 implausible versus what is just a cultural blind 00:46:18.409 --> 00:46:20.829 spot for me as a white woman? That was very, 00:46:20.929 --> 00:46:22.570 very helpful. And I do think it advanced the 00:46:22.570 --> 00:46:27.550 search for truth as well as made my defense more 00:46:27.550 --> 00:46:30.110 effective because nothing gets a witness's backup 00:46:30.110 --> 00:46:33.349 and gets them in the mood to start saying no 00:46:33.349 --> 00:46:36.329 to your questions like being misunderstood, right? 00:46:36.409 --> 00:46:38.789 You want to be able to correctly put the first 00:46:38.789 --> 00:46:40.940 nine questions to them. so that they're used 00:46:40.940 --> 00:46:42.719 to saying yes, so that they think, okay, this 00:46:42.719 --> 00:46:45.159 lawyer actually does get me a little bit. And 00:46:45.159 --> 00:46:48.179 that actually is a very effective strategic tool. 00:46:48.280 --> 00:46:50.860 It's also something that doesn't trade on myths 00:46:50.860 --> 00:46:54.019 and stereotypes. So I think, I hope that's an 00:46:54.019 --> 00:46:58.380 answer. Okay, we got it. I thought there was, 00:46:58.380 --> 00:47:01.579 yeah, but yeah. So you and your client or team 00:47:01.579 --> 00:47:05.119 made a very strong decision to have your client 00:47:05.119 --> 00:47:07.360 take a stand when the other clients in that case 00:47:07.360 --> 00:47:09.920 didn't. I don't know how specific you can get 00:47:09.920 --> 00:47:12.500 about it, but can you speak to how that decision 00:47:12.500 --> 00:47:14.940 was made or how those decisions are made in general 00:47:14.940 --> 00:47:18.860 for a sexual assault case? That was a pretty 00:47:18.860 --> 00:47:23.000 big, glaring difference in the trial and a big 00:47:23.000 --> 00:47:26.400 conversation piece. Yeah, so I won't answer it 00:47:26.400 --> 00:47:28.960 in terms of this specific case, but I can speak 00:47:28.960 --> 00:47:32.880 a bit about the decision -making that goes into... 00:47:33.599 --> 00:47:35.719 the choice to testify. First of all, the most 00:47:35.719 --> 00:47:38.719 important thing to know is that's never my choice, 00:47:38.820 --> 00:47:41.519 right? This is one of the few choices in how 00:47:41.519 --> 00:47:44.500 to run a case that belongs entirely to the client. 00:47:44.619 --> 00:47:46.840 So I've had clients where I said to them, look, 00:47:46.880 --> 00:47:50.059 do not testify. It is a terrible idea. You will 00:47:50.059 --> 00:47:51.820 get yourself convicted and they take the stand 00:47:51.820 --> 00:47:54.400 anyway. And then I run with their choice. As 00:47:54.400 --> 00:47:56.760 long as they feel empowered, that's all I can 00:47:56.760 --> 00:47:59.230 do. So it's always the client's decision. Are 00:47:59.230 --> 00:48:01.889 you right generally? I like to think I'm always 00:48:01.889 --> 00:48:04.829 right, but have there been cases where I thought 00:48:04.829 --> 00:48:06.190 the client should have made a different decision 00:48:06.190 --> 00:48:08.489 and the outcome was nonetheless what I hoped? 00:48:08.590 --> 00:48:14.010 Yes. But it is one of those cases where I would 00:48:14.010 --> 00:48:17.769 love to, secretly, this is the bad manager part 00:48:17.769 --> 00:48:19.630 of my brain, I would love to be able to control 00:48:19.630 --> 00:48:21.829 it. You just can't. You just got to be there 00:48:21.829 --> 00:48:24.250 to help them feel like they've had the process 00:48:24.250 --> 00:48:28.489 they're entitled to. The other thing that makes 00:48:28.489 --> 00:48:33.010 a difference is who you are trying the case before. 00:48:33.230 --> 00:48:36.250 So juries and judges are different. Judges are 00:48:36.250 --> 00:48:39.730 much more used to the idea that the prosecution 00:48:39.730 --> 00:48:43.570 has this burden, right? So they're kind of used 00:48:43.570 --> 00:48:45.750 to the idea of turning to the Crown saying, okay, 00:48:45.809 --> 00:48:48.349 have you put forward enough believable evidence 00:48:48.349 --> 00:48:50.449 for me to convict beyond a reasonable doubt? 00:48:50.550 --> 00:48:52.969 If not, I throw the case out regardless of whether 00:48:52.969 --> 00:48:55.599 I hear from the defendant. And because judges 00:48:55.599 --> 00:48:58.739 are used to thinking that way, you often don't 00:48:58.739 --> 00:49:01.599 feel quite as much tactical pressure to put your 00:49:01.599 --> 00:49:03.760 client on the stand and have them tell their 00:49:03.760 --> 00:49:08.119 story. Whereas with a jury, there is that residual 00:49:08.119 --> 00:49:11.880 feeling like, well, surely if there was something 00:49:11.880 --> 00:49:14.920 good to say, it would have been said. The final 00:49:14.920 --> 00:49:17.239 thing, and again, not speaking about this case, 00:49:17.300 --> 00:49:20.880 but you may see some parallels, is has that story 00:49:20.880 --> 00:49:24.250 come out in another way? Right. Do you want to 00:49:24.250 --> 00:49:26.409 put your client on the stand and expose them 00:49:26.409 --> 00:49:29.849 to the risks, obviously, of testifying? If, for 00:49:29.849 --> 00:49:32.690 example, the Crown has already played a police 00:49:32.690 --> 00:49:34.750 statement as part of their case where they say 00:49:34.750 --> 00:49:39.210 this was innocent conduct. And so it is extremely 00:49:39.210 --> 00:49:41.989 rare for the Crown to do that. This was a very 00:49:41.989 --> 00:49:43.909 unusual case in the sense that the Crown did 00:49:43.909 --> 00:49:46.010 that with three different player statements. 00:49:46.590 --> 00:49:49.530 But certainly the fact that the Crown is putting 00:49:49.530 --> 00:49:52.760 forward my clients. quote -unquote innocent story 00:49:52.760 --> 00:49:55.820 as part of its own case would be a factor I take 00:49:55.820 --> 00:50:04.199 into account in giving that advice. Is your spouse 00:50:04.199 --> 00:50:09.039 or partner also a lawyer? My child's father is 00:50:09.039 --> 00:50:13.800 a lawyer and my spouse is not, which is a fantastic 00:50:13.800 --> 00:50:18.260 thing for family harmony and also sometimes to 00:50:18.260 --> 00:50:22.099 get his take on whether or not I've drunk too 00:50:22.099 --> 00:50:23.960 much of my own Kool -Aid. When you spend all 00:50:23.960 --> 00:50:25.820 your time with people who think the same way 00:50:25.820 --> 00:50:28.519 as you and you have the same esoteric set of 00:50:28.519 --> 00:50:32.159 beliefs, values, and assumptions about how people 00:50:32.159 --> 00:50:34.639 think, it's great to be able to come home to 00:50:34.639 --> 00:50:39.460 my very much not legally trained spouse and hear 00:50:39.460 --> 00:50:41.019 him say, well, actually, what you're saying doesn't 00:50:41.019 --> 00:50:43.699 make any sense to me. Every man in the back of 00:50:43.699 --> 00:50:45.739 the courtroom is a role that he's very good at 00:50:45.739 --> 00:50:50.829 playing. Okay, let's go over here. My question 00:50:50.829 --> 00:50:53.130 is about something you said previously, Megan, 00:50:53.289 --> 00:50:56.670 where you said that the Crown's whole case relies 00:50:56.670 --> 00:50:59.369 on that one civilian witness. Since I've never 00:50:59.369 --> 00:51:02.590 been to courtroom, it's difficult to prove beyond 00:51:02.590 --> 00:51:07.769 reason without. How, then, can we move forward 00:51:07.769 --> 00:51:13.769 in getting convictions where not? Like, if you're 00:51:13.769 --> 00:51:16.010 only relying on that one witness, how are we 00:51:16.010 --> 00:51:18.929 going to move forward getting convictions when? 00:51:24.539 --> 00:51:28.300 So I think my first answer to that is to question 00:51:28.300 --> 00:51:31.340 the premise, which is, is it a desirable thing 00:51:31.340 --> 00:51:36.840 to get convictions? Because oftentimes, not every 00:51:36.840 --> 00:51:41.579 time, but oftentimes what you have is this very 00:51:41.579 --> 00:51:44.300 gray area scenario. The reason why it's difficult 00:51:44.300 --> 00:51:47.199 to get a conviction is because forensic reconstruction 00:51:47.199 --> 00:51:52.369 is impossible. And so if the idea is how do we 00:51:52.369 --> 00:51:56.230 make it easier to get convictions when forensic 00:51:56.230 --> 00:51:59.309 construction is impossible, my answer would be 00:51:59.309 --> 00:52:01.190 we shouldn't, right? No one should be going to 00:52:01.190 --> 00:52:06.150 jail on a shaky record, full stop. If the broader 00:52:06.150 --> 00:52:09.949 question is how do we ensure we achieve justice, 00:52:10.329 --> 00:52:13.210 then I think that's a really interesting conversation. 00:52:14.349 --> 00:52:17.980 I am all for... pulling at all the stops to protect 00:52:17.980 --> 00:52:21.260 people's liberty. I don't necessarily take the 00:52:21.260 --> 00:52:24.039 same view when it comes to protecting their privileges, 00:52:24.260 --> 00:52:26.440 their right to practice a certain profession, 00:52:26.699 --> 00:52:30.079 their right to drive a car. With a certain amount 00:52:30.079 --> 00:52:33.380 of nuance infused into that view, I don't think 00:52:33.380 --> 00:52:36.139 that there's anything particularly harmful about 00:52:36.139 --> 00:52:40.219 suffering reputational consequences. So I think 00:52:40.219 --> 00:52:44.460 there are, first of all, there's the option of 00:52:44.460 --> 00:52:46.980 civil redress. There are lots of lawyers out 00:52:46.980 --> 00:52:52.619 there who do feminist civil justice -related 00:52:52.619 --> 00:52:55.659 work where they sue people for, you know, like 00:52:55.659 --> 00:52:57.900 Taylor Swift, I think, sued her assailant for 00:52:57.900 --> 00:53:00.719 adultery just so that she could prove on a balance 00:53:00.719 --> 00:53:03.119 of probabilities that it happened. And that has 00:53:03.119 --> 00:53:05.860 some value, right? And there is some worth to 00:53:05.860 --> 00:53:09.760 it that isn't measured in carceral terms. So 00:53:09.760 --> 00:53:12.980 I'd say restorative justice is one of those things 00:53:12.980 --> 00:53:15.780 if you make it meaningful. And the key, I think, 00:53:15.780 --> 00:53:18.619 and the challenge is how do you ensure it's meaningful? 00:53:18.780 --> 00:53:21.199 How do you make sure that it isn't something 00:53:21.199 --> 00:53:24.019 that defendants are pressured into by the threat 00:53:24.019 --> 00:53:26.780 of jail or that complainants are pressured into? 00:53:27.809 --> 00:53:30.789 and operates as a bit of a checkmark for a defendant 00:53:30.789 --> 00:53:33.369 who then feels like he's gotten away with it, 00:53:33.409 --> 00:53:36.210 quote unquote. So I think meaningful restorative 00:53:36.210 --> 00:53:39.909 justice is the best answer to that. But yeah, 00:53:39.989 --> 00:53:42.989 I question whether more convictions is ever going 00:53:42.989 --> 00:53:45.909 to do anything to solve the underlying problem 00:53:45.909 --> 00:53:50.389 of why we see that disconnect, not always between 00:53:50.389 --> 00:53:53.849 boys and girls or men and women, but disproportionately. 00:53:55.380 --> 00:53:57.300 between boys and girls and men and women that 00:53:57.300 --> 00:54:00.139 leave people unhappy enough to the point that 00:54:00.139 --> 00:54:02.500 they feel they need to go to the police, right? 00:54:02.559 --> 00:54:04.980 Whether or not you can prove the case criminally, 00:54:05.059 --> 00:54:08.300 socially, that's a problem. And convictions don't 00:54:08.300 --> 00:54:14.179 solve that problem. Okay, right here, yeah. Your 00:54:14.179 --> 00:54:17.559 comment about the burden of proven consent being 00:54:17.559 --> 00:54:21.300 too high and too low, if I can, if I can tease 00:54:21.300 --> 00:54:22.719 out more of that, because that's interesting 00:54:22.719 --> 00:54:28.010 to me. If a person's in a relationship with someone 00:54:28.010 --> 00:54:29.570 and in the middle of the night they roll over 00:54:29.570 --> 00:54:34.110 and put their arm around them, you know, this 00:54:34.110 --> 00:54:36.909 is a common experience, but at the same time 00:54:36.909 --> 00:54:40.570 the law part of my mind is going, but this person's 00:54:40.570 --> 00:54:44.289 not consenting to this moment. Now they have 00:54:44.289 --> 00:54:46.630 in the past and there's a history, but obviously 00:54:46.630 --> 00:54:50.889 that's really not what I'm relying on, at least. 00:54:51.449 --> 00:54:54.690 I don't think I should be legally. But is this 00:54:54.690 --> 00:54:57.570 part of what you're, is that part of what you're 00:54:57.570 --> 00:54:59.389 saying when you're saying too high and too low? 00:55:00.329 --> 00:55:05.329 Yes. I think in general, Canadian law recognizes 00:55:05.329 --> 00:55:08.449 that we have a sexual violence problem, as we 00:55:08.449 --> 00:55:11.429 do. And unfortunately, the response has been 00:55:11.429 --> 00:55:15.489 to try to carve out more and more and more and 00:55:15.489 --> 00:55:19.800 more specific, case -specific rules. around consent 00:55:19.800 --> 00:55:22.380 that make it very easy in the scenario you've 00:55:22.380 --> 00:55:25.260 described, for example, for legal consent to 00:55:25.260 --> 00:55:28.059 technically be absent, at which point you've 00:55:28.059 --> 00:55:32.059 got to rely on the social dynamics of the situation 00:55:32.059 --> 00:55:36.179 to not get in trouble, right? This idea, and 00:55:36.179 --> 00:55:38.800 I think to your question earlier, that the message 00:55:38.800 --> 00:55:41.900 to be sending, particularly to young boys or 00:55:41.900 --> 00:55:44.800 to those who are, again, the physically dominant 00:55:44.800 --> 00:55:47.739 or bigger partner in an interaction is, There's 00:55:47.739 --> 00:55:50.420 almost no scenario where the law itself is going 00:55:50.420 --> 00:55:52.400 to immunize you from consequence. You've got 00:55:52.400 --> 00:55:54.940 to just also be a good person, right? Because 00:55:54.940 --> 00:55:58.239 otherwise there are these little loopholes or 00:55:58.239 --> 00:56:00.159 reverse loopholes, so to speak, where you could 00:56:00.159 --> 00:56:04.739 get caught up in the justice system and find 00:56:04.739 --> 00:56:07.420 yourself with no consent defense. And the solution 00:56:07.420 --> 00:56:11.860 is to be with a partner that you are confident 00:56:11.860 --> 00:56:15.679 is not going to take that gesture. as an opportunity 00:56:15.679 --> 00:56:18.340 to report you to the police, right? And take 00:56:18.340 --> 00:56:24.579 those steps. Exactly. Yeah, exactly. And to make 00:56:24.579 --> 00:56:26.500 sure that when you're seeking that affirmative 00:56:26.500 --> 00:56:29.320 yes that you need, that you've created all the 00:56:29.320 --> 00:56:31.719 conditions to make it truly affirmative, right? 00:56:32.380 --> 00:56:40.260 Yeah, there's a really interesting legal question 00:56:40.260 --> 00:56:44.860 about... We've got two separate doctrines. One 00:56:44.860 --> 00:56:47.639 is called reasonable steps to ensure consent. 00:56:47.960 --> 00:56:50.699 The other is called testing the waters. Reasonable 00:56:50.699 --> 00:56:53.780 steps are legal. Testing the waters is not. And 00:56:53.780 --> 00:56:57.679 the question of where you draw that line is to 00:56:57.679 --> 00:56:59.820 date unanswered, in part because a lot of the 00:56:59.820 --> 00:57:03.039 cases that are that minor don't find their way 00:57:03.039 --> 00:57:04.679 to trial, right, and don't generate judicial 00:57:04.679 --> 00:57:07.739 decision -making. And so we are left in a vacuum. 00:57:11.960 --> 00:57:16.480 My question is, how often do you deal with and 00:57:16.480 --> 00:57:19.440 how do you deal with interactions with people, 00:57:19.619 --> 00:57:22.239 either in your professional or private life, 00:57:22.420 --> 00:57:25.360 who may not fully appreciate those concepts? 00:57:28.039 --> 00:57:32.460 It's for better or for worse standard fare at 00:57:32.460 --> 00:57:35.079 Thanksgiving dinner, I think, for criminal defense 00:57:35.079 --> 00:57:37.670 lawyers. How do you defend? the guilty, right? 00:57:37.750 --> 00:57:39.929 How do you do what you do? How do you defend 00:57:39.929 --> 00:57:41.969 a murderer? This is really just iterating on 00:57:41.969 --> 00:57:43.989 that theme. So I think I've had a lot of practice. 00:57:45.429 --> 00:57:49.050 And I have, I mean, I'm not speaking up here 00:57:49.050 --> 00:57:51.369 with notes, right? Part of it is I am willing 00:57:51.369 --> 00:57:53.829 to engage with those questions if someone's asking 00:57:53.829 --> 00:57:56.130 them in good faith. And so most of what I said 00:57:56.130 --> 00:58:00.980 here, I've said a lot. to people at cocktail 00:58:00.980 --> 00:58:03.599 parties, at Thanksgiving dinner, if they're willing 00:58:03.599 --> 00:58:10.699 to engage. And it often leads to a more fruitful 00:58:10.699 --> 00:58:13.559 discussion than you might imagine. I mean, there 00:58:13.559 --> 00:58:19.440 are also the ironic messages I get from survivors' 00:58:19.559 --> 00:58:21.840 advocates that hope I get raped, and those people 00:58:21.840 --> 00:58:25.239 I never will engage with, but I think I usually 00:58:25.239 --> 00:58:29.869 do. try my best to screen those out. When I have 00:58:29.869 --> 00:58:32.710 a big case, for example, one of my law partners 00:58:32.710 --> 00:58:35.849 or my assistant has access to my inbox and they 00:58:35.849 --> 00:58:39.389 just kind of filter out the bad emails as much 00:58:39.389 --> 00:58:42.030 as they can so that I can keep my head free for 00:58:42.030 --> 00:58:44.769 the ones that really do seem to be genuinely 00:58:44.769 --> 00:58:52.119 inquiring. That's so upsetting. Yeah, it is. 00:58:52.559 --> 00:58:55.900 And I mean, it just shows that there are going 00:58:55.900 --> 00:58:58.760 to be people on the fringes that will have an 00:58:58.760 --> 00:59:01.420 absolutely horrible take, no matter what. And 00:59:01.420 --> 00:59:03.920 there were some of them on my side, too. A couple 00:59:03.920 --> 00:59:05.840 of the support messages I got were also awful. 00:59:06.900 --> 00:59:10.320 But you've just got to take those fringes and 00:59:10.320 --> 00:59:12.239 trust that they don't represent the majority. 00:59:13.039 --> 00:59:17.260 Right, yeah. Okay, so I think we have a couple 00:59:17.260 --> 00:59:18.699 more questions. There was one over here that 00:59:18.699 --> 00:59:20.159 I want to make sure that it was asked. Yes, okay. 00:59:20.940 --> 00:59:24.480 Hi Megan, so with the Canadian Civil Liberties 00:59:24.480 --> 00:59:27.960 Association, so I'm very familiar with questions 00:59:27.960 --> 00:59:29.780 about whether there should be consequences for 00:59:29.780 --> 00:59:31.519 things versus whether the government should be 00:59:31.519 --> 00:59:34.000 the one to meet those consequences out. I've 00:59:34.000 --> 00:59:36.820 appreciated your talk a lot. There's some things 00:59:36.820 --> 00:59:40.139 that I want to ask about. When you get these 00:59:40.139 --> 00:59:44.880 horrible takes or these positions that emerge 00:59:44.880 --> 00:59:48.309 from kind of a moral panic, What is your sense 00:59:48.309 --> 00:59:51.989 right now of the way these things live on in 00:59:51.989 --> 00:59:54.789 policy, for example? So when new laws are made 00:59:54.789 --> 00:59:56.590 or when new regulations are made, I'm thinking 00:59:56.590 --> 00:59:59.090 about things like government suggesting that 00:59:59.090 --> 01:00:01.489 there should be no bail for people who are charged 01:00:01.489 --> 01:00:04.050 with a particular kind of offense. Say, I think 01:00:04.050 --> 01:00:16.150 things around domestic violence have been . I 01:00:16.150 --> 01:00:26.730 think the popular urge to have a knee -jerk reaction 01:00:26.730 --> 01:00:31.110 to significant cases has done so much harm and 01:00:31.110 --> 01:00:34.889 resulted in so much state overreach that I don't 01:00:34.889 --> 01:00:39.639 know what to say about it. to abolish bail for 01:00:39.639 --> 01:00:44.380 a long time. The Zamir case was the poster child 01:00:44.380 --> 01:00:47.139 for why we need to make it harder for murderers 01:00:47.139 --> 01:00:49.900 to get bail. And it turns out he was innocent 01:00:49.900 --> 01:00:52.480 the whole time, right? To oversimplify a very 01:00:52.480 --> 01:00:56.880 complicated trial. What I worry about always 01:00:56.880 --> 01:01:02.400 when I see a large case inspire the bad takes 01:01:02.400 --> 01:01:05.179 is that the government will abdicate its role 01:01:05.179 --> 01:01:11.369 to work for us. and instead adopt the practice 01:01:11.369 --> 01:01:17.250 of catering to us in the short term in a way 01:01:17.250 --> 01:01:19.949 that doesn't actually serve us long term. Is 01:01:19.949 --> 01:01:23.289 this a problem with the criminal justice system? 01:01:23.409 --> 01:01:26.670 Is it a problem with democracy and the short 01:01:26.670 --> 01:01:30.190 -term nature of the four -year term that our 01:01:30.190 --> 01:01:32.630 career politicians always have in mind when they 01:01:32.630 --> 01:01:34.849 think about re -election? I don't know, but I 01:01:34.849 --> 01:01:38.940 do always fear that... cases that inspire really 01:01:38.940 --> 01:01:41.460 strong takes we'll see those takes translated 01:01:41.460 --> 01:01:43.940 into government then it's a matter of people 01:01:43.940 --> 01:01:46.820 like your organization and those who work for 01:01:46.820 --> 01:01:49.559 it to try and infuse some nuance into that and 01:01:49.559 --> 01:01:52.900 you know there's room for advocacy within government 01:01:52.900 --> 01:01:56.380 it's just not always effective depending on who's 01:01:56.380 --> 01:02:00.860 uh who's uh presiding over those house and senate 01:02:00.860 --> 01:02:08.820 sessions And we had a general plan in the session. 01:02:09.039 --> 01:02:12.420 I was really hopeful for a talk that would be 01:02:12.420 --> 01:02:18.099 candid and explore issues in a way that was grounded 01:02:18.099 --> 01:02:21.420 and that we all in the room could relate to and 01:02:21.420 --> 01:02:23.599 engage with and each of you could see those expectations. 01:02:24.059 --> 01:02:26.420 So thank you. Thank you for having me. Thank 01:02:26.420 --> 01:02:34.940 you. Thank you for tapping into this episode 01:02:34.940 --> 01:02:38.300 of Law Syrup. Law Syrup is produced by me, Herman 01:02:38.300 --> 01:02:40.880 Wong, and the Ontario Justice Education Network. 01:02:41.139 --> 01:02:43.920 For more information and for accompanying resources, 01:02:44.420 --> 01:02:47.820 check out ojen .ca and our show notes. See you 01:02:47.820 --> 01:02:48.280 next time.