Michael Ford (post until Oct. 31/19)

Lindsay Daviau drawn to criminal law by its human element

Toronto criminal lawyer Lindsay Daviau knows how high the stakes can be for her clients. 

“It’s incredibly daunting when someone’s life is at stake,” she tells AdvocateDaily.com.

Unlike some other areas of law, a defendant’s liberty often hangs in the balance with criminal cases and that’s something Daviau, an associate with Rosen & Company Barristers, says is an important consideration when defending someone.

“I certainly struggled with that early on in my career," she says. "You don’t want to mess up because someone could spend the rest of their life in prison. Just having a criminal record is a significant hurdle, especially for someone never convicted before. It could mean restrictions on your travel and might impact custody of your children and future job prospects.

"The effect of a criminal record can be overwhelming and I take that very seriously." 

It was that human element that first attracted Daviau to criminal law. 

“It was always criminal law. I never really had an interest in any other area," she says. "I had no passion for dealing with paper, patents or money. I’ve always been attracted to the human aspect of criminal matters. These are people and these are their lives.”  

Daviau, who grew up in Timmins, wanted to be a lawyer as far back as she can remember. 

“As a small child, I’d always tell my grandmother that I wanted to be a lawyer," she explains.

Daviau earned her LL.B. from Osgoode Hall Law School in 2005 and was called to the Ontario bar in 2006. She has practised criminal and quasi-criminal law exclusively ever since. 

“I’m always shocked when someone says they want to be a lawyer but they’re not interested in criminal law," she says. "I have difficulty understanding that. But it’s either something you want to do or you don’t. People who aren’t completely committed to it, don’t stay working in criminal law. You do it because you love it or you don’t do it. That’s just how the profession is divided.”

Daviau jokes that during dinner parties with colleagues, there is always more interest in her cases than those of her “bankruptcy friends,” for example. 

She also enjoys the variety of cases that criminal law provides. 

“Every trial, every issue is unique," Daviau says. "In what other fields of law do you have the opportunity to delve into arson or blood spatter? The opportunities to learn new things are endless. The human factor also fascinates me. Why do people do what they do?"

She knows that the details heard in a criminal case can make people squeamish and that some crimes are impossible to condone, but she believes in a system that gives everyone equal access to justice.

"I am obligated to ensure that my client is treated fairly and in so doing, I am required to raise every issue and advance every argument, no matter how distasteful," she says. "We all benefit as a society if we try people fairly and see that justice is done when all participants in the system are treated equally."

Daviau says she believes that success isn’t an all-or-nothing endeavour. She cites the case of one client, a truck driver charged with criminal negligence causing death after his transport truck rolled off a highway overpass and crushed vehicles below, killing one person. 

“He was looking at doing some serious time, but after the preliminary inquiry, the Crown attorney offered him a plea deal of careless driving, which is a Highway Traffic Act offence, rather than a Criminal Code offence. In a case like this, that is a huge success and a really good resolution for everybody involved.” 

Daviau has both prosecuted and defended in disciplinary proceedings before the College of Nurses of Ontario and has defended clients in disciplinary proceedings at the Law Society of Upper Canada. She has acted as an intervener for the Canadian Civil Liberties Association and for the Criminal Lawyers’ Association in various appeals before the Supreme Court of Canada (SCC), including R. v. Spencer, 2014 SCC 43 (CanLII), where she represented the Canadian Civil Liberties Association. 

“That case looked at the extent to which your personal information through your Internet provider is protected," she explains. "The SCC agreed with us that it contains core personal information. You can learn a great deal about a person by knowing what websites they visit.

"Ultimately," Daviau says, "out of Spencer, the Supreme Court tells us that police need a warrant to seize that information because it’s protected under s. 8 of the Charter, which states that everyone has the right to be secure against unreasonable search or seizure.

“The Spencer case reaffirms that Canadians have an expectation of privacy in their Internet use. You can expect privacy in the things that you look at online and the core data that gets collected from that. If the police want that information, they have to get a warrant for it. In this new era of technology, that’s very important to protect people’s privacy.”

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