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Criticism of female defence counsel points to confusion over role

A recent demand for a university to cancel a scheduled talk by Toronto lawyer Marie Henein not only amounts to a personal attack on a respected female lawyer, but also reflects a profound misunderstanding of the role of defence counsel, Toronto criminal lawyer Breese Davies writes in The Walrus.

As Davies, principal with Breese Davies Law and vice-president of the Criminal Lawyers’ Association, explains, Henein successfully defended Jian Ghomeshi earlier this year. Ghomeshi was acquitted of sexually assaulting three complainants and charges in relation to a fourth complainant were withdrawn after he entered into a peace bond and issued an apology to her.

“Those who have publicly called for Henein’s talk to be cancelled complain about comments she made about victims of sexual violence during Ghomeshi’s trial and the disregard she showed to the complainants. They also suggest that giving Henein an opportunity to speak to students will perpetuate rape culture in Canada,” writes Davies.

However, she says, Henein did not make any public comments about the complainants in the Ghomeshi trial, and only conducted one interview after the verdict in the first trial, in which she spoke of the trial process and the controversy surrounding the verdict.

“She did not speak about the complainants or victims of violence generally. And there was absolutely no suggestion from the judge or the Crown attorney that Henein did anything but act with professionalism and integrity throughout the trial,” writes Davies.

As a result, says Davies, when protesters say Henein’s comments about victims will threaten the safety of their campuses, “they must be referring to the questions she asked of the complainants in the courtroom during cross-examination. They must be suggesting that the very act of questioning and testing the credibility and reliability of what a complainant said happened to them is in and of itself problematic,” she writes.

That, she explains, is a very dangerous position to advance.

"It threatens to undermine the presumption of innocence and the rule of law in Canada. One of the hallmarks of our justice system is that individuals charged with a criminal offence are presumed to be innocent. The Crown bears the burden of proving their guilt beyond a reasonable doubt. We cannot prevent people from making false accusations of crime (including sexual assault), but the presumption of innocence and the high burden on the Crown protect all of us from being wrongly convicted of an offence we did not commit,” explains Davies.

While sexual violence is a very real problem in Canada and deserves focused attention, Davies says the answer is not to make it easier to convict people or to reverse the burden of proof.

“It is the role of defence counsel to protect the rights of an accused person. It is our job to ensure that every person accused of a crime (and facing the possibility of jail if convicted) receives a fair trial. It is our job to test the evidence put forward by the Crown to see if it can meet the high standard of proof for a conviction. If the Crown’s case depends on evidence from a complainant, it is the job of defence counsel to test that evidence through cross-examination,” she writes.

“By doing my job, I am not disrespecting women or perpetuating rape myths. It is not my job to comfort complainants (there are others in the criminal justice system who do that) or simply believe everything a complainant says. I am required to treat everyone in the court, including complainants, with courtesy and respect. But if I were to simply accept what a complainant says without question, as the protesters seem to suggest I should, I would be failing in my professional obligations to my client,” Davies adds.

As Davies writes, there is a gendered undertone to the criticisms of Henein, with a suggestion that women defence counsel are “betraying their gender” by representing men charged with sexual violence.

“Ironically, this argument itself perpetuates old-fashioned stereotypes and myths about women and our true value in society. Attacking female defence counsel for doing their job, and doing it well, sends a troubling message to women entering our profession that true equality is still a long way off,” she writes.

“As a woman, I care deeply about putting an end to violence against women, including sexual violence. The focus of those efforts, in my view, should be on prevention. But as long as we resort to the criminal justice system (and I expect for good reason we will continued to do so), I will vigorously defend my clients’ right to a fair trial and will hold the Crown to its obligation to prove criminal charges beyond a reasonable doubt. I am no less a feminist because of my chosen profession—and neither is Marie Henein,” says Davies.

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