feminism: in defence of criminal defence

The other day a friend sent me the Toronto Life article on Marie Henein. And yes, I totally loved it! I mean, aside from the fact that the article kept talking about what she wore despite Henein’s persistence in refusing to answer such questions because men do not get asked the same questions (preach!). Then, I saw this Metro article talking about Henein and asking “what (or so what) about her feminism?”

If you haven’t been living under a rock for the past year, you would know that Jian Ghomeshi is charged with some pretty harsh offences, including sexual assault and choking. Ghomeshi is also Henein’s client. There are a lot of women who spoke out against Ghomeshi’s charges and rightfully so. It must have been a nightmare for them, just as much as it was a nightmare for Ghomeshi following the charges. But, let me be clear, I am not defending Ghomeshi or his actions. I condemn any form of gender violence. Nevertheless, I want to write about what it means, for me, to a woman interested in criminal law/defence. I want to talk about some of the questions I have to ask myself on a daily basis, as someone who is interested in criminal law/defence and as someone who is also an Indigenous woman with sex working experience.

So, it’s not news that I love criminal law (or the study of it). I am also doing an internship at a criminal defence law firm. I don’t really know what it is like to work in criminal defence and this is providing me with some experience. Although I did have some hesitations about this internship and my own anxieties (like hi, hello, I’ve been there, done that and what if something triggers me?!?!), I am enjoying the internship. I am learning how fast things can change on the lawyer side, all under a few hours (but the change is arguably slower to happen for the client side of things–just think about how many clients who are waiting in remand for months). And this criminal defence internship is (meaning, the reflection is ongoing, not definite) providing me with some insight into if I really want to go into criminal defence. Can I answer if criminal defence is what I want to do today while writing this post? I am not entirely sure. All I can say is that I love learning about criminal law (and also constitutional law), and how the law influences its systems, its processes, its institutions…

Since starting law school, this is also the number one question I have been asked: what type of law do you want to practice? I don’t know. Criminal defence seems like a shoe in. Since I don’t even know where I will be in a year or two, I can’t really say “Yes!” and be firm in that answer today. I have also been faced with some hard questions by my own mother and by other criminal lawyers who I reached out to asking for help.

Earlier this year, the court delivered the verdict for Bradley Barton. He was charged with murdering Cindy Gladue. The verdict really got to me. I kept asking myself, “What does it mean for me, an Indigenous woman, to want to go into that same system and potentially defend someone like Barton?” I reached out to a criminal lawyer and I met with him. He asked me if I could defend someone who killed a sex worker? It was a tough question. I replied, while sitting in his office and at that moment he asked me that question, I could never defend someone who is charged with killing an Indigenous woman. He also told me, “don’t let one case change your mind.” My mother also asked me a similar question, “How would you defend people who do horrible things?” I gave her the answer that people have the right to a defence. It’s true. Also, generally speaking, in my own readings of criminal law cases, what the main issues tend to be is not whether someone committed an offence but the issue turns on a constitutional issue, like a Charter violation.

We all have Charter rights and one of those Charter rights is the right to full answer and defence. We also have several other legal rights (and I encourage all to go and read them right now because there is nothing like knowing your rights). These rights include the right to retain and instruct counsel without delay, the right not to be arbitrarily detained, or the right to be tried within a reasonable time. These rights are pretty cool, right? Wouldn’t it be shitty if we lived in a country where we didn’t have these rights AND could be arrested, not knowing what we were arrested for (and yeah, this totally still happens), not have a right to counsel or not have a right to defend yourself? Just imagine. Even though the rights sound nice, warm and fuzzy, and the rights make some of us feel good at night, these rights only exist today because if the police could get away with shit like unreasonable search and seizure, they totally would (and well, they still do that stuff). But do we say that someone should not have a right to defend themselves just because they have done something presumably “bad”? No.

The Metro article goes on to place blame on “lawyers like Henein” by writing,

“A criminally low sexual-assault conviction rate in this country won’t go away if lawyers like Henein keep doing their best in a system stacked against victims.”

The above quote suggests that we need to have a high conviction rate in order to help the victims. I disagree.

First, lawyers like Henein are representing people who have the same rights as anyone who isn’t charged with an offence, like sexual assault and choking: we all have a right to full answer and defence. Second, I don’t think the end goal of any feminism should be to obtain more convictions. If you are from an overly criminalized/marginalized group like Indigenous women working in the sex trade, we all know that these groups will be the ones most likely to be impacted (not in a good way) by such a feminism, one that seeks to obtain convictions. As an Indigenous woman who is interested in criminal defence, I even struggle with coming to terms of upholding the same system that impacts the same groups. What do I think of a feminism seeking to obtain convictions for victims? I think that we have to be weary of any action that seeks to criminalize anyone, because it will mostly be women (especially Indigenous women) impacted by such actions. In other words, we will see an increase in criminalization of Indigenous women especially the most visible, like those who live and work on the streets. We can look to the issue of MMIWG2S to see the issue with only examining low conviction rates. Conviction rates do not tell us anything about criminal law or criminal defence. There are two sides to criminal defence. Maybe we should ask what low conviction rates just tell us about the police and Crown, who lay the charges, determine which evidence to admit into court, etc.? Also, if any feminism wants to help victims, they should be advocating for more safety and supports within the community. Because who is more likely to be sexual assaulted, murdered, or experience any form of violence? It’s the “IWG2S” in “MMIWG2S.” In that same breath, we should also ask ourselves how do we hold communities and each other to account, instead of relying on an unjust system, to help the victims? I don’t believe in relying on a system that imprisons people for anything. Yes, I said it. But can we at least envision what our society would look like if we didn’t have to rely on a system that perpetuates harm and violence or rely on a system that targets marginalized folks in myriad of ways?

So what do I think of Henein’s feminism? In the Toronto Life article, it states that “Henein never turns down a client.” Yes, this even means clients like Ghomeshi. I commend her, especially as a woman in criminal defence. I could never say the same thing and this post is proof of that. Then again, if I go into criminal defence, I don’t necessarily think my business will be affected by refusing to represent people charged with killing indigenous women… because, um, it’s not like those cases are being actively investigated by policing agencies.

And to expand on my answer as to whether I could represent someone who is charged with killing a sex worker: what about my feminism as someone who advocates for the rights of sex workers? The majority of those cases involve Indigenous women who work in the sex trade (and yes, some non-Indigenous women who work in the sex trade are obviously murdered). Again, it’s not like these cases are also actively being investigated by policing agencies. Who remembers Pickton and the inquiry that came out that gong show? Well, the inquiry also stated that it was the indifference from the police that played a role. So, I don’t think I will ever be bound to make such hard decisions which is an even harsher truth to swallow.

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One comment

  1. Thank you. I face similar questions as a mental health clinician. I’ve been doing this for forty years, and still don’t know where my boundaries lie exactly. There are folks I simply cannot work with effectively. Fortunately, there are other people for them to see. I imagine my public face as Indigenous, keeps some folks from even asking for aid. Be generous with yourself.

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