In the news: Marie Henein needs to be heard

by Aileen Furey

Marie Henein is one of Canada’s top criminal defence lawyers, and now a household name after she successfully defended Jian Ghomeshi in his criminal trial earlier this year.

You don’t have to aspire to work in the criminal justice system to appreciate the perspective of Ms. Henein. Criminal law is just one of many male dominated fields. Whatever your career aspirations may be, Ms. Henein should be lauded as an example to the rest of us, no matter what our gender identity, that yes – in any type of work we choose – we can be supported, we can be successful, and in fact, we can become the best.

Because Ms. Henein is one of the best. She is not immune to criticism, nor should she be. However, when that criticism becomes extremely vocal, and is grossly misdirected and misinformed, it is problematic for all professionals, particularly women. This was the case last week, when some of her critics vehemently decried the announcement of Ms. Henein as a speaker at Atlantic Canadian universities next winter.

I am also a female criminal defence lawyer. I do not consider my gender, my job or my feminist ideologies to be separate or conflicting parts of who I am. All three facets coexist within me at all times. As a newer lawyer, I look to Ms. Henein as an inspiring example of what can be achieved with meticulous preparation, dedication and a strong sense of belief in your work, despite the polls of public opinion and despite expectations placed on us by others on the basis of our gender.

I was very supported by my friends and family when I decided to practice criminal law, rather than focus on other areas. But you wouldn’t defend someone charged with a sex assault? Yes, actually, I would. And I do.

The defence of persons charged with sexual assault, or any other crime, is discharged by Ms. Henein fiercely and professionally, with an exceptionally high level of skill. She is a tireless advocate for every single one of her clients. Before you blindly add your voice to the criticisms of her success, it is imperative to be informed about exactly what it is that our job requires Ms. Henein to do.

Ms. Henein, and every other criminal defence lawyer, is tasked with challenging the Crown to meet its obligations in every single case. It is the Crown who has to prove that an accused person has committed a crime. They don’t have to simply prove that a person has probably committed a crime. Rather, the Crown has to displace the presumption of innocence and prove beyond a reasonable doubt, that an accused person should be found guilty. This may sound basic to most of you, and it should, because it truly is the basis of our criminal justice system.

It is the job of a defence lawyer to sniff out and highlight for a judge or jury all of the cracks and weaknesses of the Crown’s case. Ms. Henein does exactly as the Law Society of Upper Canada dictates she must do in its Rules of Professional Conduct. Rule 5.1-1[1], in particular, outlines that:

“In adversarial proceedings, the lawyer has a duty to the client to raise fearlessly every issue, advance every argument and ask every question, however distasteful, that the lawyer thinks will help the client’s case and to endeavour to obtain for the client the benefit of every remedy and defence authorized by law.”

There’s a reason the Law Society invokes that word – fearless. It is in acknowledgement of the fact that our task is daunting. This work is exhausting, thankless and all too often, misunderstood. Yet, we carry on. We are required to consistently discharge our duty at a same standard of excellence despite the nature of the crime, the gender of the complainant, or the (un)popularity of our case.

Ms. Henein, and all criminal defence lawyers in this country, have the unenviable task to consistently challenge the Crown who wants to convict our client. We do not challenge the Crown any less because the complainant is of a particular gender, or if it’s a particularly heinous crime. We use every tool available to us for a defence, as we stand in opposition to a powerful system with the odds stacked against us more often than not.

Ms. Henein frequently defends unpopular and unsympathetic cases, as do the rest of us. Yet, the challenge we put forth remains the same. Prove it.

Our work may be unpopular, but it is meaningful. The willingness to take on unpopular work does not make us a traitor to complainants, their families, or society in general. We simply play a vital role in a system that you would undoubtedly value much, muchmore if you ever have the unfortunate luck of finding yourself caught up in it.

A brilliant, hardworking and fearless advocate – Ms. Henein brings an invaluable perspective for university students as they forge their own path. Not only does she reign in an otherwise male dominated field, she forges on despite the polls of public opinion, for work she believes in.

Let her voice be heard. Let her answer the tough questions, allow her to spark thoughtful and respectful debate, and be open to the free flow of ideas and perspectives that you may not yet fully understand. It is only by listening to each other that we can learn, grow and affect change.