Defending the Defence

Although I'm no stranger to the visceral "how can you represent guilty people?" that often follows my answer to the cocktail-party pleasantry querie "and what do you do for a living?" it still struck me as odd to read famous Canadian lawyer Edward Greenspan's statement in a recent Sun column:

"I have spent a good part of my career defending my career."

http://www.calgarysun.com/comment/columnists/edward_greenspan/2009/09/28/11159951-sun.html

The statement is odd really for two reasons - that an individual as successful and accomplished as Mr. Greenspan would still find it necessary to publicly justify what he does, and that the justification is necessary because as a defence lawyer, Mr. Greenspan helps people in times of great need.

Think about it. When is a citizen more vulnerable than when they have been physically nabbed by an armed government agent and taken to a place to be held against their will? Now consider that the hypothetical citizen is likely in this predicament because he or she is impecunious, mentally ill, or addicted to drugs or alcohol (or both).

So why the pervasive public scorn of criminal defence lawyers? How dare we help such people? Particularly, how dare we do so and expect to make a higher hourly wage than what a fast-food restaurant manager makes?

Who is Mr. Greenspan to complain that Legal Aid rates in Ontario have risen 15% in 20 years while inflation has risen nearly 75% in the same time period? How is it unfair that since 1997 Crown prosecutors' wages in Ontario have increased over 100%? Why should we care that legal aid programs across the country are in crisis like Mr. Greenspan says?

Does a doctor treating a patient for lung cancer have to justify to the public why they would be willing to help such a person with their self-inflicted ailment? Do we question the fair remuneration of the doctor for such services? What about a bankruptcy trustee helping out a debtor who has clearly just chosen to default on their financial obligations?

As defence lawyers, we should not have to defend what we do. Our society benefits greatly from our efforts whether it appreciates that fact or not. That said, as defence lawyers we should not hesitate to defend what we do. More of us need to make public statements educating the public on our role in the system, and more importantly, on the significant personal sacrifices that we often make in service of our clients and by extension in service of public order and the principles of a free and democratic society.

As citizens, we should not have to roused from apathetic comas by sensational legal aid boycotts to be reminded that Canadian justice is built on principles of fairness and due process...including the notion of allowing persons accused of crimes to meaningfully defend against the allegations of the State.

As I have commented on previously, we cannot just say that we acknowledge the importance of an effective legal aid system for the proper administration of justice, we must actually be willing to devote sufficient public funds to such a system:

http://calgarycriminallawyer.blogspot.com/2006/11/legal-aid-top-priority-for-albertans.html

To Mr. Greenspan, I am still young and idealistic. I choose to believe that a day will come when society in general will not only resile from it's aggressive disdain for criminal defence lawyers (as we continue to observe wrongful convictions and police misconduct become regular elements in Canadian criminal justice) but will also recognize the utility of a fair allocation of resources to a strong legal aid program.

While I am bothered by your time spent in defending the defence, I am truly grateful for your efforts and I pledge to follow your example.


Michael Bates
Calgary Criminal Defence Lawyer