"My view is that I’m not here to act as your judge and your jury. The role of the defence lawyer is a critical pillar of the system and the protection of the public," Marie Henein says.Melissa Tait/The Globe and Mail
Marie Henein has been a respected criminal defence lawyer for years, but she became a household name while defending former CBC radio host Jian Ghomeshi during his sexual assault trial – a case that she won. In the aftermath of that victory, Henein was called a traitor to her gender. The backlash also launched a discussion, especially in legal circles, about whether the public understands the role of the justice system and, in particular, criminal defence lawyers. The Globe’s Robyn Doolittle spoke with Henein about her new book, Nothing But the Truth: A Memoir. You can listen to more of this conversation on Wednesday’s episode of The Decibel.
What do you think some members of the public get wrong about the justice system?
Well, you can’t blame members of the public because unless you come to the courtroom and unless you see what’s happening, unless you see how questions are asked and being answered – it’s really hard to filter information from misinformation, particularly in the way that we communicate nowadays. I think often the public gets their perception of what the justice system is about or what lawyers are about or what our obligations are from American TV shows.
In your book, you’re talking about an interaction you have with your former mentor, Eddie Greenspan, and you write about listening to a witness and you found her very sympathetic and you said it was kind of heartbreaking to watch. And you mentioned this to him. [You write]: ‘That witness,’ Eddie roared, ‘is here to make sure our client is convicted. That is the only thing you need to spend your time thinking about.’ This seems pretty harsh, but is that the reality? Can you speak to the role of a criminal defense lawyer?
You have a very specific obligation, which is your loyalty to your client. You can’t be thrown off from that. Your professional obligation is you can’t be distracted, that does not mean you can’t be empathetic. I think what he was trying to say to me at that time – and I was very young – is that I got so overwhelmed by what I saw. He was trying – in a tough way, and he was a tough man – to refocus my attention. I don’t want people to think that you are not alive to the reality of what is happening in any particular case. And the way that I may see it may be different than another lawyer may see it. And I certainly write about this. You know, the humanity of our legal system is one of its greatest values, but it’s one of its greatest flaws as well, because you bring to it a great deal of your personal and subjective experience.
You talk a lot about how ‘it’s not your job as the lawyer to be making moral judgments on [your client’s] character.’
I have clients who come to me and say, do you believe me? And I always say to them, that’s the wrong question you’re asking. You would never go to a doctor and say to your doctor or your surgeon, do you really like me? My view is that I’m not here to act as your judge and your jury. The role of the defence lawyer is a critical pillar of the system and the protection of the public. I obviously have [my personal views]. If I’m unable to check my personal views and do my professional job, then I will not act for that client because I can’t give them the best.
An entire chapter focuses on the anguish around turning 50 and how society treats women who cross that threshold. Can you speak to why that was important to underscore?
I have these absolutely brilliant women [in my life] who were profoundly accomplished in their professional lives, their personal lives – and we’re all turning 50. And we are all struggling with it. You were becoming invisible. And I looked at my male colleagues and they are in the prime of their lives. I mean, they’re at the pinnacle of everything, attractiveness, professional accomplishment. And it got me thinking as to why we were in such a different category and why these women who really had everything were feeling pretty crummy about themselves.
What are we to do about it?
I wish I knew the answer. I mean, I certainly think visibility is very much a part of it. I think that you have an obligation to be present and be visible.
So much of the backlash from when you entered the public eye is, I think, around the fact that you were a woman representing a man in one of the most high-profile sexual assault cases that Canada’s seen in decades. What do you think of #MeToo?
Well, I think it was and is essential. I think this is an example of where the democratization of communication and information was critical because you had voices who’d previously had a tough time getting anyone to pay attention, getting attention. I think what I worry about is that in all of this, we lose the fact that marginalized, racialized women who have suffered through this for so long are sort of put over to the side because they’re not Gwyneth Paltrow.
Critics of #MeToo would say that #MeToo is about the court of public opinion and that anyone can make an accusation and there’s no way to defend yourself. What do you think of that perspective?
Well, there are two different things. A court has rules and an objective and a very focused job. In terms of the court of public opinion, well, that’s since time immemorial. It may proceed now with lightning speed, but [it’s not new]. The concern is that we don’t bring the court of public opinion, which has no rules, into the legal court, which has to operate by rules. As tough as it is.
This interview has been edited for length and clarity.
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Robyn Doolittle