Please know that this episode contains references
to sensitive subject matter. Welcome to Law Syrup,
the show where we talk with special guests about
hot topics in Canadian law. This podcast is a
co -production with the Ontario Justice Education
Network, also known as OGEN. I'm your host, Herman
Wong. Let's tap it. Before we begin, please know
that this show is not intended to be legal advice
or a replacement for a legal representative.
Welcome back, everyone. On this week's episode,
we will be sharing a recording from this year's
Summer Law Institute. For those of you who don't
know, the Summer Law Institute is a two -day
event hosted by OGEN at Osgoode Hall in downtown
Toronto for secondary school law teachers. One
of the programs this year was a conversation
with Megan Savard. Megan is a criminal defense
lawyer, and she has been counsel on many high
-profile cases, including the recent Hockey Canada
trial. In this conversation, we have OGEN's very
own Jean -Paul Bivilacqua speak with Megan about
her career, her perspectives on criminal law,
prison abolition, and the role of defense in
the administration of justice. Thank you, JP,
for having me. It's great to be back at OGEN.
The last time I worked with OGEN was, I think,
2008, when I was a law student. So it's good
to be back. Before we get to that trial and Megan's
experience, just wondering if you could take
us a little bit back and talk to us about your
first memories about the law. Well, as a white
woman, my first interaction with the law was
positive, like many people who have my profile.
And it wasn't until I got much more involved
in the criminal defense side of things that I
got to see a little bit how this particular vehicle
and industry can operate to the detriment of
the people the state is supposed to be protecting.
So for me, it was really, I almost stumbled into
it. I didn't have any educators like the ones
in this room to instill in me a love of civics
or the law when I was in high school. So I took
an English degree, realized that I had no marketable
skills, flipped a coin, took the LSAT, decided
I would go to law school, picked the law school
based on a list I saw, I think in McLean. So
really very thoughtless all the way through.
And then it wasn't until I got to law school
and realized that 99 % of the law I wasn't particularly
interested in. The theory of the law was interesting,
but really just wanting to ply my trade and help
human beings, I started gravitating towards criminal
defense in particular. Does McLean rank in such
a throwback? Do they still do that? I don't know.
I thought McLean was in the lower, but I assume
so. Yeah, yeah, yeah. Interesting. University
of Toronto, thank you, McLean's. Not a bad one.
And so you talked or alluded a little bit to
this, but did you head into law school with an
interest in criminal law? Was there something
that you did that kind of engendered a reaction
in yourself? How did you end up choosing that
specialty? No, I headed into law school with
no interest whatsoever and hopeful to find my
path. And I did not find it in the classroom
in first year law school. And the reason for
that is it is very theoretical. But thankfully,
I was able to work at Downtown Legal Services,
which is the University of Toronto affiliated
poverty law clinic in my first law school summer.
That was really what drew me to it. I practiced
to the extent I can as a student. Admin law and
criminal defense law had my first real clients
and got to experience, again, like I said, a
little bit of the way the deck is stacked. And
I would say that really piqued both my... contrarian
streak the desire to be on the side that isn't
necessarily well represented that may be misunderstood
and then my clients are just lovely people and
having a terrible time and to be there for someone
and what might be the worst moment of their life
or one of them uh became a huge draw for me so
what i mean is like the human connection piece
was huge for you which having been to law school
myself is yeah not always maybe it's changed
and i hope it has totally or wholly emphasized,
especially in those first -year courses. I'm
wondering if there's a specific interaction or
person or case that you dealt with at Downtown
Legal Services that stays with you to this day
in terms of igniting that path with you? Yes,
actually. I was thinking about that. On my way
here, I had one client. I won't name him. He
had no criminal record, and he was charged. He
was an elderly Rastafarian man, which becomes
relevant to the story, in his early 60s, and
he was charged with a very minor domestic assault.
Now, normally, because of where he was located
in the city, he would have gone to Osgoode Hall,
York University's poverty law clinic. At the
time, they had a blanket policy not to accept
domestic assault cases where the perpetrator
or the suspected perpetrator was male. And so
all of these domestic assault cases came flooding
into downtown legal services and I went into
that job with a set of preconceived notions about
the kind of person who gets charged with domestic
assault. My client was lovely and gentle, and
as I studied the evidence in the case, it became
clear that it was not nearly so clear -cut. In
fact, he was the one who had called the police.
His domestic partner, a woman, was bigger, younger,
stronger than he was, and there was a policy
at the time that you have to pick one. Toronto
Police Service has to leave having charged or
cautioned one person, and so they charged him.
And he wasn't facing jail time. That's why I
was allowed to even put my hands on this case
as a student. But I was looking for something
to back up his story that, in fact, he was not
the aggressor in this situation. And I went through
some of the photos and I saw a photo that I,
the content of which I didn't recognize. And
I asked him, you know, what is this photo? He
said, those are my dreadlocks. And they were
lying on the floor where his partner had pulled
them out of his head. And so that was, there's
rarely a smoking gun in cases like that, but
it was the kind of thing where combined with
the minor nature of the charges, I was able to
get the charge withdrawn with no consequence
to him, legal or otherwise. And that was really
a profound moment for me because I could feel
my own assumptions being challenged and I was
able to make a real difference in someone's life.
I was able to do it when he'd been categorically
rejected by a sexist policy from another institution,
which I understand has now been changed long
ago. So it just really made me think about my
own assumptions and those that we all come into
contact with the criminal justice thinking about.
And it did stick with me for that reason. And
so it seems like acting as Crown was never on
the table for you. No, I didn't try to interview
at the Crown. I think I may hold the most records
for interviews conducted versus jobs not offered.
It was just immediately apparent, I think, to
everyone in those interviews that I was in the
wrong place. And so that, you know, interviews
are a great place to find out who you are as
well as to get the jobs that you want. Yeah,
especially if you're not pretending in an interview,
which it doesn't sound like you were doing. So
moving out of law school then. thinking about,
you know, you're a young lawyer, early stages
of your career. Did you think about, like, I
need to make my mark, or were you just one choice
after another? Like, how did you choose what
to do after law school? I think... I did think
about that. Yeah, early on, much more so than
now in some ways, I was intentional about my
career. I think when you aren't established,
and I don't come from Toronto, I don't have lawyers
in my family, I was trying to think how I could
get my foot in the door in the way that it would
stay. Because in criminal defense in particular,
there's just a massive attrition of mid -level
female lawyers. They tend to go to the Crown,
they go to other areas of law. It's a pretty
hostile. industry for people who want to build
a family and so I really wanted to establish
myself as much as I could early on thinking I
do want to have a family and I want to be able
to do so when I'm in a place where people will
accommodate that and understand that even though
I now have to take time for my family I'll be
back and I'll be so we're talking in terms of
the family consideration the work life balance
piece? Is that what we're talking about? Or is
it the dynamics of the job? Is it the types of
matters that you're dealing with? What is the
hostility there? It's a little bit of both. And,
you know, I appreciate work -life balance in
quotation marks, because it really is just a
matter of, you know, sometimes if my kid is sick,
I'm free to take the afternoon off, but then
I wake up at four in the morning to finish the
work, right? Like, there's that piece. But what
you find when you're in criminal defense is It's
a lot of external deadlines. You just really
don't have the ability to control your own practice
and your own workload the way you would like.
And you're in court, which is like being in an
operating theater. You can't check your phone.
You can't call someone if the judge says we're
going to sit late. You can't say no without risking
being held in contempt. And the daycare starts
charging by the minute after 6 p .m. I see a
lot of people nodding at that one. So it is,
there's a lot of people, especially given the
attrition of women, who don't necessarily appreciate
what it looks like to run a full practice and
also have a family life. And so I wanted to at
least have a bit of a reputation and a sense
that people trusted me by the time I got to the
stage of having to stand up in court and saying,
I have obligations. I need to leave. And now,
did you find people at that stage that were supportive
of this desire on your front to stay in the profession
in a specific field? Did you start to get mentors
at that time in your career? Did you find the
people? Were they going to nurture you? Yes.
actually. So mentors and peers. There were women
who were a little ahead of me who had children
slightly older who would give me the cheat codes.
And then my then boss, later law partner, Frank
Adario, was also really instrumental. And that's
a good example of someone who already has all
the privilege using it for good. I think I was
the first female. criminal defense associate
in the city who got any kind of top up for parental
leave. And then, of course, I immediately told
all my friends and it became much more of a standard
market thing. But that was a big deal. Frank
didn't have to do that. He could have said no.
And what would I have done? And so the fact that
he was willing to create a new precedent in that
way made me feel a lot more welcome. And I think
a certain amount of loyalty. to him when I came
back, and that it was really good for our professional
relationship as well. So how long were you together
in that firm, and then when did you decide to
branch out on your own? It was eight years. Eight
years. And then in January 2021, which is the
absolute best time to do anything new right in
the middle of COVID, was when I started my own
firm. And what spurred that on? I think it's,
so it's a combination of things. I love Frank,
as I said, we still have a good relationship,
but he was very much already at the apex of his
career when I joined his firm. The dynamic was
always going to be he's the dad of the firm and
I'm the teenage babysitter, so to speak. It wasn't
a place where I could control the direction of
it, set its values, and really shape the business
in the way I wanted to. And I have a pretty healthy
anti -capitalist streak in my nature. I really
liked the idea of running a firm that was a lot
more... laterally organized, horizontal, involving
everyone in decision -making, opening up the
books so that everyone can see where the money
comes in and where it goes. And that was the
kind of thing where I had to start it myself
if I wanted to do it. And so it was a friendly
breakup. I told Frank, I think, four months before
I left what I was thinking of doing. He supported
me. We worked it all out. But it was sad. right
because you're giving up a known good thing for
the hope of something better and that always
feels like you're doing something a bit crazy
yeah and truly like what a time to be doing that
but from the perspective of someone in the profession
you've really continued to carve out not even
a niche but real reputation and what you're known
for, what do you think that is about? I know
it's kind of like, let me compliment myself,
but really, what do you think that you presented
or offered that was maybe missing in criminal
defense or just the profession generally? What
do you think Savard LLP represents to those of
the team representation? I think it's, I would
like it to be more than just a reputation that's
built on the cases that make the papers because
that's a very specific type of case I know we'll
speak about that and it's actually quite a small
part of my practice the thing that got me into
criminal defense law was trying to level the
playing field and what I hope it offers is or
what I'd like it to offer if I'm thinking aspirationally
is just a five -star experience at a price that
is on a sliding scale, right? It's a bit of a
Robin Hood model. I obviously have private clients
and, you know, sometimes I worry about the fact
that I couldn't afford myself if I got in trouble,
but I keep, you know, minimum of 30 % of my practice
is either legal aid or pro bono and usually large
cases, murders, or something that's very much
I would say of the same type as the cases that
got me interested in the first place, right?
Cases where maybe some colleagues aren't touching
them, they're maybe politically unpopular. I've
done a ton of protest cases in the last couple
of years, for example, because that's been an
area where freedom of expression and the criminal
law have intersected in a really interesting
way. And I think being able to offer clients
That level of service, informed by the type of
interesting work that normally you only get on
a legal aid certificate, is what makes our firm
unique. And hopefully as well a feeling that
they've got someone on their side in a real sense.
I don't put many limits on who I represent and
who I don't represent, but we do have a no police
rule. So we don't represent officers who are
charged in the line of duty. There's no direct
conflict there, but most of my clients, are there
because of negative experiences they've had with
the police and for them to meet someone in the
waiting room or to feel like um you know i'm
actually on the side of state excess in some
cases uh was something i didn't particularly
want so that answers it no no it does it does
i just want to go a little bit further into that
and talk about how you decide about which cases
you take on and then i'm wondering how it squares
with clients that you may not find as sympathetic
or who have potentially done something that you
disagree with? What is that matrix like? How
do you balance and how do you decide? The simple
answer is two out of three. So I have this little
triangle and every case that comes into my office
has to have at least two out of the three criteria.
So it either has to have very interesting or
novel legal issues. That sort of scratches the
intellectual precedent -setting itch. Sympathetic
client calls me back to the human nature of the
work, and it just is always better if it's someone
you enjoy spending time with, you want to help
situate them as well as you can for the rest
of their life going forward, or pays the bills.
So any two out of the three. And so, yes, I have
had clients who paid the bills, and their cases
raised interesting legal issues. didn't particularly
love them, wouldn't necessarily be the clients
you think either. And the really tough cases
are the ones where you take it on, something
changes, and you find that, you know, now you're
down to one or zero criteria. And then, of course,
you're limited ethically in your ability to get
off the record. But overall, I think it contributes
to job satisfaction. And it also takes my own
personal feeling out of the equation because
The last thing I want to do is be unchecked in
some of my biases and let that infect in too
many cases the type of work I take on. Is that
like a muscle? Are you struck by that, taking
your personal feelings out of the equation? Is
that something you developed and did it come
naturally to you? Is it something you're now
pretty adept at? It is definitely a muscle in
the sense that the more deliberately you try
to force yourself to check yourself, the more
naturally it comes. And I also think there's
safety in numbers. I run a firm. I think I am
the only white person and the only not minority
person in some way. So part of what I do when
I think about taking on a new client or a new
cause, is I open it up to the group, right? Because
my racialized or queer associates might have
a different view about a file that I'm considering.
So any gray area file where I'm not sure, we
do open it up to the group. And part of the rule
too at my office is if anyone doesn't want to
work on a particular file, they don't have to.
But so far there haven't been any internal conflicts
like that because we're pretty consistent in
what we agree to take on. That sounds like a...
fantastic model and really walking the walk of
that lateral distribution of power, I guess it
might be. Yeah, I mean, that's the goal, right?
And sometimes I really do hate the democracy
of it. As a manager, it's very easy. It's true.
It's very easy to be a bad person when you're
a manager. And you can feel that urge to treat
your associates like... inventory just creeping
up into the back of your head and you know my
associates collectively bargain every december
i get an email from them with their wish list
and i always have to go just take the rest of
the day off and have a beer so that i can come
back to it with the objective mindset knowing
what i want my workplace to be and not give in
to some of those really more i guess super -villainy
thoughts that sometimes come to you when you're
the boss and you have the least potential to
exploit or profit off the people working for
you. I think that's so cool, though, because
it's easy to hold beliefs and then actually put
them in action. It's different and can conflict
with your own personal wishes, desires and self
-preservation, right? Yeah, I think choosing
to be a good person, it turns out it feels very
different than thinking you're a good person
or feeling like a good person they're they're
two very different things but like you said it's
a muscle and and hopefully over time i'll get
there i think i think you're well on your way
um okay let's talk about what we uh many of us
are really interested in talking about today
how was that hockey canada case and trial So
as I said to JP, I'm going to share what I've
said publicly and what is available to be shared
publicly. I won't speak about anything confidential
or privileged for this case. But I would say
a few things stood out to me. First is obviously
the level of scrutiny. I'd had some experience
with high profile cases before, but this one
really, I think, ignited interest because of
the... intersectionality of it. Canadian values,
when it came to sex, when it came to sport, especially
our national sport, when it came to the criminal
justice system, all really dovetailed and everyone
had thoughts about it and no one was neutral,
including people in my own family. So I would
say just the sheer amount of scrutiny that was
placed on us, myself and my co -counsel, the
council for the co -defendants as well, made
it different. The other two things that made
it different were the number of defendants charged
and what that meant for running the defense.
Part of being a criminal defense lawyer is in
some way marching to the beat of your own drum
and striking out. on your own course and having
to live in a courtroom for so many months with
four other legal teams not all of whom necessarily
approach the issues or the strategy the same
way was a really interesting challenge and learning
how to work with and around people who maybe
think about the law a little bit differently
or think about their clients or the role of the
media a bit differently that was really interesting
And finally, I'd say this case is unique and
this is something I've said publicly in the sheer
weakness of the case. I think it's probably pretty
well known that when it was first investigated,
no charges were laid. And the facts that led
to that decision back in 2018 came out in full
at the trial. And so I would say my... My disappointment
with the fact that this was going to trial, it
was heightened in this particular case because
something I say to every single one of my clients,
whether they're a defendant and sometimes I represent
witnesses as well, is trials are never vindicated,
right? No one comes out at the end of a criminal
trial thinking, man, I feel good about that.
I have really, really shown everyone who I am.
what I stand for and I feel amazing about how
that's being portrayed and accepted by society,
the judge, my family, etc. No one comes out of
a trial like that, witnesses, defendants. And
so having to go through that trial when it was
a massive financial burden on the state, when
it obviously had major economic consequences
for our defending clients, felt frustrating in
a way it normally isn't. So is your opinion then
that the Crown probably did not have a probability
of conviction and shouldn't have brought it forward?
That's a tough question to answer, not just because
I won't speak about confidential information,
but because individual Crown attorneys are really
limited in how they exercise their discretion.
There is a Crown Policy Manual in Ontario that
says, for example, restorative justice is not
to be offered in sexual assault cases, which
can be very tough, especially if you have a case
like the one we're talking about where anyone
who's followed in the media can see a pretty
big grey area there, at least morally, if not
legally. I might be able to say, legally, I think
this case shouldn't have been brought. Do I think
anyone comes out of that case looking good? Not
particularly. And I think that pushing it through
an adversarial model really just discourages
any kind of nuanced thinking about it, right?
You could never go to someone who is facing years
of jail and say, okay, but let's explore how
you might have contributed to this situation.
They're going to say, why are you trying to treat
my diabetes? I have a gunshot wound. Right. And
so that and the same thing for a witness, a witness
who's told you're going to be challenged. You
might be in the stand for days. Any amount of
nuance in your story is going to be exploited.
You know, they'll double down on a version of
events that may be at best under nuanced and
at worst and frankly quite common in some of
the cases I see deliberately not true. And in
a way. that's not unsympathetic, right? Someone
who has been told their whole life that there
is no excuse for choosing certain types of sexual
behavior is going to find it attractive to remove
the element of choice, especially if they're
talking to someone like a parent or an authority
figure that may not be the person who they'd
normally want to be the most honest with. And
so taking the nuance out of it, I think is a
real, It's really such a terrible thing. And
allowing these gray area cases where people are
willing to meet in the middle to proceed down
that route, I think, would have been a great
way to deal with a case like this one. Yeah,
you mentioned nuance. I mean, that was unprecedented
in terms of the societal political discourse
around it. Very black and white, not too much.
interesting, even exploring, acknowledging gray
area. I thought it was interesting and I watched
the post -verdict press conference and you talked
a little bit about the differences in the style
and approaches of the other defense counsel.
You were the only one that mentioned restorative
justice. I think I'm okay to say, because you
said it outside the courthouse, that your client
would have been open to that process and to be
named publicly. Why did you think it was important
to highlight that, and why do you think that
this case, or special assault cases in general,
may actually be suited for restorative justice?
um i think i first of all not every case right
there are obviously cases if you're talking about
you know a minor and an adult or someone in a
position of power that are much more clear -cut
not suited to it but sexual behavior generally
among adults is the very type of thing that defies
black letter law and forensic reconstruction
the whole idea of sexual behavior is you are
kind of supposed to take your brain out of it
and so to then ask people who have gotten into
that state to go back recreate what happened
for a judge who doesn't share anything about
your history doesn't know what kind of a person
you are, and have them decide what reality is
or what happened in that room, it's particularly
ill -suited to that sort of forensic analysis
that is the bread and butter of criminal cases.
And similarly, I think by the time a case gets
to me, it really is a band -aid solution for
a problem that had its roots. deep in the past,
whether it's my clients past, the complainants
past, their parents past, there's a whole world
that contributed to everyone getting there. And
one of the things that you can do, one of the
things, for example, a young man with a large
platform and a bunch of other young men willing
to listen to him could do is provide a certain
amount of education on how, for example, legal
consent sets both too high and too low a bar
for how we want to behave when we are human beings
operating in society, the responsibility you
have if you're the literal bigger person in the
room. And those conversations just can't happen
once you've put people in their respective corners.
And now I acknowledge and realize that I'm not
a man asking you this, which may be some unfairness
in even asking the question, but I do want to
pose it to you because it's... Was Bill present
in the discourse? It's a wonderful, I say that
sarcastically, you know, opinion piece in the
Trump Star about female defense lawyers and basically
how do they sleep at night, how do they look
at themselves in the mirror, any other metaphor
you want to insert there? How do you think about
that? Is that a separate conversation? Is it
one worth having? Does it interfere with your
work? You mentioned some family members that
you may have had conversations with. How do you,
I don't even want to say reconcile, but how do
you interact? What's your relationship with that
argument? I think it matters that I'm a woman.
I'm not one of those people who would say any
lawyer can do the exact same job and there's
no difference. I think it matters in these cases,
actually. But I think it matters in a good way.
And I would reject what I'd call the carceral
feminist argument against me doing this work,
because if you accept that criminal defense work
is a necessary job, and you accept the premise
that people should only go to jail if the crime
is proven beyond a reasonable doubt, then what
you have in a lot of these cases... is a really
tough situation where the Crown attorney has,
in some cases, abdicated its discretion, put
its entire case on the back of one civilian witness
who's probably never been in a courtroom before.
It's very hard on any evidentiary record to get
to proof beyond a reasonable doubt, as it should
be, because you're looking at putting a human
being in a cage at the end of it. But it's still
really hard on that one witness. a woman doing
this job, is you can do this necessary work and
bring to it, nonetheless, a level of empathy.
And I wouldn't say that an almost common feeling
with that witness in a way that some co -counsel
cannot. And I will say, I worked with some very
ethical male co -counsel in this case. We would
moot ideas. And one of them might say, oh, I
think this, or I think this is implausible. And
then if I turn to them and said, actually, that's
not implausible, I could see as a woman how XYZ
might actually happen. That would be something
that does make sense to me. And they would listen
and they would learn a little bit from it. So
taking women out of the room, I think, risks
removing the little bit of nuance that you can
infuse into this proceeding and a little bit
of empathy that you can bring to a cross -examination.
And taking us back to a world where the only
strategy was to quote -unquote whack the complainant.
There's something about having been in similar
social situations that allows you to make eye
contact and say, look, I get it. You don't want
to talk to your mom about things that you think
she won't approve of. And getting someone nodding
along with you a little bit. Not every party
you're across. That kind of moment where you
actually are able to show you're not just a stranger
intruding, but someone who's just had more of
a set of common experiences. That's so interesting.
I want to talk to you a little bit about your
strategies around cross -examination. Not specific
to this case, but how do you think about your
approach? Like, I mean, do you, do you, your
tone, dynamic? relating to the complainant does
it change based on who is in front of you or
do you kind of have a baseline from what you
operate like how do you think about the I don't
want to call it I think I'll call it the performance
aspect of it like how do you think about that
like how do you think about what type of energy
you're entering the courtroom with well as you've
alluded to I have a full range of energies that
I can bring and I would say that it really depends
on the witness. I often have my cross -examination
mapped out in the sense of the broad points I
want to make, but how I make those points really
varies. If you have a very emotional witness,
a witness who's very honest about the limits
of their memory, a witness who seems to be trying
their best to actually comply with their oath,
then it's a very different energy than... if
you see someone who you think is trying to game
the system a little bit. And one thing I have
no patience for is people who don't take their
oath seriously and people who try to avoid answering
questions because they don't like the way that
the answer will sound. And so it can be that
it switches as different topics come up. If I
get the sense that someone is trying to be evasive
or if i've heard them say under oath something
that i know they said the opposite thing if i
know they said the opposite thing three years
ago then it's almost it's almost like my my mom
voice comes out a little bit like well come on
let's let's be clear here you're saying this
now but you said the opposite three years ago
and it really is the same voice i use with my
kid when they're trying to get out of trouble
because children tend to lie a lot, especially
when they're very young. It just comes to them
very naturally. And so I think my mom voice does
come out a lot, especially if I get the sense
that people are respecting their oath. I'm glad
I haven't personally raised out any of this,
but I know that we still have some time left,
so I'm so close to there. I'm just wondering
if you think about... little bit of distance
now right it's been a few weeks i know you said
that people don't leave a criminal trial feeling
vindicated do you have hope for its impact more
broadly maybe in terms of i'm thinking about
two worlds the sport and then the justice system
or legal system I have hope for society and sport
because of the young people I know. And I'm sure
many of you in this room would say the same thing.
The level of openness and nuance that young people
are capable of, especially when it comes to talking
about sexual subjects, is unparalleled. It really
is a breath of fresh air to talk to my child
or my niece. and hear just how open they are
and how supportive of their friends they are
and how willing they are to depart from some
of the very restrictive sexual norms that I think
guided me and a lot of people of my vintage when
we were growing up. So I have hope for that.
My best friend actually works out at a gym that
is populated largely by Hockey Canada feeder.
uh athletes and so she heard during the trial
just these incredibly nuanced conversations among
14 and 15 year old boys athletes and so that
those little vignettes that i get into that generation
do make me feel very hopeful and learning what
i did about hockey and the way we treat these
young athletes as they're growing up the way
we sort of just pull them away from their families
stick them with a billet family and then train
them like they're gladiators to entertain us.
We really are the true villain of the piece on
some level. And I think that culture is changing.
But the legal system, I don't know, my jury is
out. The last couple of times there was a very,
no pun intended. The last couple of times there
was a very high profile case that led to an unpopular
verdict. There was some very performative reactionary
and ultimately ineffective. uh steps taken by
uh what was then the Trudeau government um and
the large largely the outcome of that has been
it takes these cases longer to get to trial it's
more expensive for the people charged it eats
up a lot of court time and now more cases are
getting thrown out for delay so I worry that
I you know I hope that there will be positive
consequences. I hope that maybe we can reopen
the restorative justice conversation. What I
fear is that there will be some kind of similar
reactionary, poorly thought out effort to make
it easier to convict. and treat that as solving
the problem once we do. Because the problem is
not just laws that make it easier to convict.
It's dusting off your hands at the end of that
and saying, well, now we've made these laws,
we don't need to worry anymore about the problem
of sexual violence and sexual violence against
women in particular, which, as we all know, is
not the case. We do not change sexual behavior
and attitudes just by making it easier for the
few people who get prosecuted to completion to
get convicted. I would like to open it to some
questions from the floor. Okay, right back here.
Great. So I work at a sports school, and there's
a large chunk of students who play OHL and AAA
and NHL players. And so I've done a lot of classes
featuring you in the Toronto Life article, so
I have two questions. One... We're going to talk
about consent and ethical behavior versus criminal
behavior, if you have any advice for that. And
the second one is we're going to talk about your
prison abolitionist. If you could talk a little
bit more about that, what would it be for you?
I love when, first of all, just to... I didn't
want to be asking more questions, but I really
wanted to talk about abolition because I was
such a... thankfully heavily featured part of
your profile, so I'm so glad that you raised
both of those things. Yeah, I was surprised that
Toronto Life even agreed to talk about prison
abolition. I thought that was just a little throwaway
I was giving her. So taking it in reverse order,
I am a prison abolitionist in the sense that
I believe that the resources we currently use
for prison, almost to the dollar, could be better
used invested in preventative measures that remove
the need for prison altogether that is nice not
everyone reacts that way and it is what keeps
me going in cases where we talked about that
triangle of the perfect comment where some of
those criteria do disappear or a case where where
you worry about whether or not the justice system
is even capable of completing the search for
truth If you start to realize the justice system
is a poor construct and we almost never really
get to the full truth, and you focus instead
on what the outcomes are for people who proceed
through the trial process, the vast majority
of the harm that gets caused is to not just the
person who goes to jail, but their families and
the generational trauma that results. The number
of clients I have who are... my clients because
they didn't have, for example, a father figure
because their father was serving time in jail
is quite high. And so that tends to keep me going,
even if I'm not quite sure otherwise where I
fall on the facts of the case or my role in the
justice system. In terms of consent, I can echo,
I think, what I said earlier, or maybe emphasize
it, which is that The legal bar for consent is
both too low and too high for what we want to
be doing and what we should expect of ourselves
as human beings. It allows for the criminalization
and the labeling as sex offenders of people who
have done nothing more than what society has
told them. is either permissible or something
you can get away with. And the level of punishment
and the level of condemnation that that attracts
is disproportionate to what I think the level
of fault is. So in that sense, the bar is too
high. But it's also too low in the sense that
the legal definition of consent has nothing to
do with enthusiasm, satisfaction. I can consent
to go visiting my great uncle at the hospital.
And I choose to do it, but it doesn't mean I'm
going to have a good time there, right? And surely,
and this tends to work, especially if I speak
to young boys, surely you want to be able to
walk away from an interaction feeling like a
pretty good person, right? Like you've given
someone something good to talk or think about
or whatever it is that helps make you feel like
a man, right? And I feel like that legal definition
of consent and this whole idea of you know getting
consent videos yes it's useful circumstantial
evidence in a criminal case but it's no substitute
for actually making sure you've got engaged enthusiastic
participation because then you don't even get
a complaint right the fact that you're acquitted
is a bit of a hollow victory if you know you've
left someone unhappy enough to bring a complaint
in the first place okay right over here okay
let's write this one down um In sexual assault
defense cases, what would you say is the extent
does appointing a lawyer from a diverse background
reflect a genuine commitment to equity and representation
versus a strategic deployment of diversity to
construct credibility to shape the public perception?
Is this the Heather Mallett question? No, I don't
know. It's a really good question because Especially
when you're thinking about jury cases, there
is a little bit of performance to it, right?
You think, how is it going to look to the jury
that I'm there defending this person? And so
do I think that some defendants take that into
account when they select their lawyers? A hundred
percent. Can't stop people for picking lawyers
for the wrong reasons. Certainly there are enough
defendants who pick male lawyers because they
think they'll be aggressive and effective in
court, and they aren't always right about that.
So we can't control why our clients pick us.
What we can control is our awareness of our own
particular brand of diversity and how we can
use that to both effectively advocate for the
outcome that we're routine to try to achieve,
but also to minimize harm in the process. And
I learn a lot about that from my associates.
I have a couple of associates who are visibly
Muslim. And the last case I had before the Hockey
Canada trial involved a very similar grey area
case where the complainant was Muslim and came
from a very traditional family. And the benefit
to my cross -examination of having those associates
weigh in on, What would be a fair question? What
would be an unfair question? What would be genuinely
implausible versus what is just a cultural blind
spot for me as a white woman? That was very,
very helpful. And I do think it advanced the
search for truth as well as made my defense more
effective because nothing gets a witness's backup
and gets them in the mood to start saying no
to your questions like being misunderstood, right?
You want to be able to correctly put the first
nine questions to them. so that they're used
to saying yes, so that they think, okay, this
lawyer actually does get me a little bit. And
that actually is a very effective strategic tool.
It's also something that doesn't trade on myths
and stereotypes. So I think, I hope that's an
answer. Okay, we got it. I thought there was,
yeah, but yeah. So you and your client or team
made a very strong decision to have your client
take a stand when the other clients in that case
didn't. I don't know how specific you can get
about it, but can you speak to how that decision
was made or how those decisions are made in general
for a sexual assault case? That was a pretty
big, glaring difference in the trial and a big
conversation piece. Yeah, so I won't answer it
in terms of this specific case, but I can speak
a bit about the decision -making that goes into...
the choice to testify. First of all, the most
important thing to know is that's never my choice,
right? This is one of the few choices in how
to run a case that belongs entirely to the client.
So I've had clients where I said to them, look,
do not testify. It is a terrible idea. You will
get yourself convicted and they take the stand
anyway. And then I run with their choice. As
long as they feel empowered, that's all I can
do. So it's always the client's decision. Are
you right generally? I like to think I'm always
right, but have there been cases where I thought
the client should have made a different decision
and the outcome was nonetheless what I hoped?
Yes. But it is one of those cases where I would
love to, secretly, this is the bad manager part
of my brain, I would love to be able to control
it. You just can't. You just got to be there
to help them feel like they've had the process
they're entitled to. The other thing that makes
a difference is who you are trying the case before.
So juries and judges are different. Judges are
much more used to the idea that the prosecution
has this burden, right? So they're kind of used
to the idea of turning to the Crown saying, okay,
have you put forward enough believable evidence
for me to convict beyond a reasonable doubt?
If not, I throw the case out regardless of whether
I hear from the defendant. And because judges
are used to thinking that way, you often don't
feel quite as much tactical pressure to put your
client on the stand and have them tell their
story. Whereas with a jury, there is that residual
feeling like, well, surely if there was something
good to say, it would have been said. The final
thing, and again, not speaking about this case,
but you may see some parallels, is has that story
come out in another way? Right. Do you want to
put your client on the stand and expose them
to the risks, obviously, of testifying? If, for
example, the Crown has already played a police
statement as part of their case where they say
this was innocent conduct. And so it is extremely
rare for the Crown to do that. This was a very
unusual case in the sense that the Crown did
that with three different player statements.
But certainly the fact that the Crown is putting
forward my clients. quote -unquote innocent story
as part of its own case would be a factor I take
into account in giving that advice. Is your spouse
or partner also a lawyer? My child's father is
a lawyer and my spouse is not, which is a fantastic
thing for family harmony and also sometimes to
get his take on whether or not I've drunk too
much of my own Kool -Aid. When you spend all
your time with people who think the same way
as you and you have the same esoteric set of
beliefs, values, and assumptions about how people
think, it's great to be able to come home to
my very much not legally trained spouse and hear
him say, well, actually, what you're saying doesn't
make any sense to me. Every man in the back of
the courtroom is a role that he's very good at
playing. Okay, let's go over here. My question
is about something you said previously, Megan,
where you said that the Crown's whole case relies
on that one civilian witness. Since I've never
been to courtroom, it's difficult to prove beyond
reason without. How, then, can we move forward
in getting convictions where not? Like, if you're
only relying on that one witness, how are we
going to move forward getting convictions when?
So I think my first answer to that is to question
the premise, which is, is it a desirable thing
to get convictions? Because oftentimes, not every
time, but oftentimes what you have is this very
gray area scenario. The reason why it's difficult
to get a conviction is because forensic reconstruction
is impossible. And so if the idea is how do we
make it easier to get convictions when forensic
construction is impossible, my answer would be
we shouldn't, right? No one should be going to
jail on a shaky record, full stop. If the broader
question is how do we ensure we achieve justice,
then I think that's a really interesting conversation.
I am all for... pulling at all the stops to protect
people's liberty. I don't necessarily take the
same view when it comes to protecting their privileges,
their right to practice a certain profession,
their right to drive a car. With a certain amount
of nuance infused into that view, I don't think
that there's anything particularly harmful about
suffering reputational consequences. So I think
there are, first of all, there's the option of
civil redress. There are lots of lawyers out
there who do feminist civil justice -related
work where they sue people for, you know, like
Taylor Swift, I think, sued her assailant for
adultery just so that she could prove on a balance
of probabilities that it happened. And that has
some value, right? And there is some worth to
it that isn't measured in carceral terms. So
I'd say restorative justice is one of those things
if you make it meaningful. And the key, I think,
and the challenge is how do you ensure it's meaningful?
How do you make sure that it isn't something
that defendants are pressured into by the threat
of jail or that complainants are pressured into?
and operates as a bit of a checkmark for a defendant
who then feels like he's gotten away with it,
quote unquote. So I think meaningful restorative
justice is the best answer to that. But yeah,
I question whether more convictions is ever going
to do anything to solve the underlying problem
of why we see that disconnect, not always between
boys and girls or men and women, but disproportionately.
between boys and girls and men and women that
leave people unhappy enough to the point that
they feel they need to go to the police, right?
Whether or not you can prove the case criminally,
socially, that's a problem. And convictions don't
solve that problem. Okay, right here, yeah. Your
comment about the burden of proven consent being
too high and too low, if I can, if I can tease
out more of that, because that's interesting
to me. If a person's in a relationship with someone
and in the middle of the night they roll over
and put their arm around them, you know, this
is a common experience, but at the same time
the law part of my mind is going, but this person's
not consenting to this moment. Now they have
in the past and there's a history, but obviously
that's really not what I'm relying on, at least.
I don't think I should be legally. But is this
part of what you're, is that part of what you're
saying when you're saying too high and too low?
Yes. I think in general, Canadian law recognizes
that we have a sexual violence problem, as we
do. And unfortunately, the response has been
to try to carve out more and more and more and
more specific, case -specific rules. around consent
that make it very easy in the scenario you've
described, for example, for legal consent to
technically be absent, at which point you've
got to rely on the social dynamics of the situation
to not get in trouble, right? This idea, and
I think to your question earlier, that the message
to be sending, particularly to young boys or
to those who are, again, the physically dominant
or bigger partner in an interaction is, There's
almost no scenario where the law itself is going
to immunize you from consequence. You've got
to just also be a good person, right? Because
otherwise there are these little loopholes or
reverse loopholes, so to speak, where you could
get caught up in the justice system and find
yourself with no consent defense. And the solution
is to be with a partner that you are confident
is not going to take that gesture. as an opportunity
to report you to the police, right? And take
those steps. Exactly. Yeah, exactly. And to make
sure that when you're seeking that affirmative
yes that you need, that you've created all the
conditions to make it truly affirmative, right?
Yeah, there's a really interesting legal question
about... We've got two separate doctrines. One
is called reasonable steps to ensure consent.
The other is called testing the waters. Reasonable
steps are legal. Testing the waters is not. And
the question of where you draw that line is to
date unanswered, in part because a lot of the
cases that are that minor don't find their way
to trial, right, and don't generate judicial
decision -making. And so we are left in a vacuum.
My question is, how often do you deal with and
how do you deal with interactions with people,
either in your professional or private life,
who may not fully appreciate those concepts?
It's for better or for worse standard fare at
Thanksgiving dinner, I think, for criminal defense
lawyers. How do you defend? the guilty, right?
How do you do what you do? How do you defend
a murderer? This is really just iterating on
that theme. So I think I've had a lot of practice.
And I have, I mean, I'm not speaking up here
with notes, right? Part of it is I am willing
to engage with those questions if someone's asking
them in good faith. And so most of what I said
here, I've said a lot. to people at cocktail
parties, at Thanksgiving dinner, if they're willing
to engage. And it often leads to a more fruitful
discussion than you might imagine. I mean, there
are also the ironic messages I get from survivors'
advocates that hope I get raped, and those people
I never will engage with, but I think I usually
do. try my best to screen those out. When I have
a big case, for example, one of my law partners
or my assistant has access to my inbox and they
just kind of filter out the bad emails as much
as they can so that I can keep my head free for
the ones that really do seem to be genuinely
inquiring. That's so upsetting. Yeah, it is.
And I mean, it just shows that there are going
to be people on the fringes that will have an
absolutely horrible take, no matter what. And
there were some of them on my side, too. A couple
of the support messages I got were also awful.
But you've just got to take those fringes and
trust that they don't represent the majority.
Right, yeah. Okay, so I think we have a couple
more questions. There was one over here that
I want to make sure that it was asked. Yes, okay.
Hi Megan, so with the Canadian Civil Liberties
Association, so I'm very familiar with questions
about whether there should be consequences for
things versus whether the government should be
the one to meet those consequences out. I've
appreciated your talk a lot. There's some things
that I want to ask about. When you get these
horrible takes or these positions that emerge
from kind of a moral panic, What is your sense
right now of the way these things live on in
policy, for example? So when new laws are made
or when new regulations are made, I'm thinking
about things like government suggesting that
there should be no bail for people who are charged
with a particular kind of offense. Say, I think
things around domestic violence have been . I
think the popular urge to have a knee -jerk reaction
to significant cases has done so much harm and
resulted in so much state overreach that I don't
know what to say about it. to abolish bail for
a long time. The Zamir case was the poster child
for why we need to make it harder for murderers
to get bail. And it turns out he was innocent
the whole time, right? To oversimplify a very
complicated trial. What I worry about always
when I see a large case inspire the bad takes
is that the government will abdicate its role
to work for us. and instead adopt the practice
of catering to us in the short term in a way
that doesn't actually serve us long term. Is
this a problem with the criminal justice system?
Is it a problem with democracy and the short
-term nature of the four -year term that our
career politicians always have in mind when they
think about re -election? I don't know, but I
do always fear that... cases that inspire really
strong takes we'll see those takes translated
into government then it's a matter of people
like your organization and those who work for
it to try and infuse some nuance into that and
you know there's room for advocacy within government
it's just not always effective depending on who's
uh who's uh presiding over those house and senate
sessions And we had a general plan in the session.
I was really hopeful for a talk that would be
candid and explore issues in a way that was grounded
and that we all in the room could relate to and
engage with and each of you could see those expectations.
So thank you. Thank you for having me. Thank
you. Thank you for tapping into this episode
of Law Syrup. Law Syrup is produced by me, Herman
Wong, and the Ontario Justice Education Network.
For more information and for accompanying resources,
check out ojen .ca and our show notes. See you
next time.