Episode 01: Julianna Greenspan, Partner, Greenspan Partners LLP

Dr. Murphy:

From the corner of Bay and Dundas in Downtown Toronto, this is Like Nobody's Business, a podcast of thought leadership and business innovation. I'm Dr. Stephen Murphy, Dean of the Ted Rogers School of Management at Toronto Metropolitan University.

Julianna Greenspan is one of Canada's leading criminal lawyers. A partner at Greenspan Partners in Downtown Toronto, Julianna has extensive experience in criminal and extradition matters. She joined TRSM's Distinguished Counsel-in-Residence, Ralph Lean, to talk directly to TRSM students about law and business as part of the lecture series, Law, Business, and Politics - The Real World.

Ralph Lean:

We've got a superstar criminal lawyer, you've seen her bio, it's spectacular. Everything she's done. Questions very good. We discovered before class there's a couple issues we disagree on-

Julianna G.:

Yeah.

Ralph Lean:

Which we'll talk about. What we decided to do is we're going to go right into the questions.

Question 1:

So I read an article entitled Women Leaving Criminal Law Practices in Alarming Numbers. It explained that a lot of female criminal defense lawyers leave because of low pay, long hours, and challenges dealing with the legal aid system. In general, it explained that the criminal defense is an avenue of law that is much easier for males to experience success. After reading your bio and researching, I have gathered you are a very successful criminal defense lawyer. What advice and/or thoughts do you have for the females in this room who want to pursue a career as a criminal defense lawyer?

Julianna G.:

So actually this was not the first question because I didn't want to start of the class with the woman issue question, but it was on the list because I don't look at the practice of criminal law from a woman perspective even remotely. I look at the practice of law as a criminal law perspective only. But there are a couple things. There was an article in the paper that did come out about women criminal lawyers leaving the practice, and it's the same in every profession, essentially, about women issues potentially and trying to make the playing field fair. But if you become a lawyer, you become a professional, if you become someone in a hard level, especially criminal law where it's all trial practice.

You're in a courtroom, you're doing trial work all the time, there are gives and takes, and sometimes people don't want to give, they want to take. So I have a very different viewpoint than maybe another set of criminal female lawyers out there or other females in other professions. I do a lot of giving, and I take less taking, but that's because I love my practice and I love what I do and I just don't want to stop doing it. In the practice of criminal law, there is no balance whatsoever. When you have a client and you have a call and its 2 o'clock in the morning because he's been arrested or she's been arrested, at the police station, and you have to go, you have to go. And if a child is sick in bed and it's a problem even if you're mommy, you have to go if you want to practice in this business.

So you've got to do a lot of giving and very little taking. If you love what you do, whether you're a man or a woman or whatever, you just go and you do it, and you have to figure out the balance.

Question 2:

While I'm sure you operate under the presumption of innocence while working with your clients, have you ever encountered a situation in which your own moral compass has tried to steer you away from or succeeded in steering you away from defending certain actions? Is there a line that you draw in terms of what and who you're willing to act on behalf of, or do you simply put your own morals and personal views aside when dealing with potential clients?

Julianna G.:

A defense lawyer, my role is to never question my client because the crown is questioning my client, the police have questioned my client, the judge is likely questioning my client, the public is questioning my client. The one person that's left in the universe to help protect that individual, who may be wrongly charged and could potentially be wrongly convicted is me. So if I engage in a process of questioning, then he has lost or she has lost forever. And so I have to put faith in the fact that my client, whatever my client tells me, I must accept it because sometimes the truth is insane. How do I know when my client comes in to talk to me that he's not lying and that when he gets up in that stand and puts his hand on the Bible and swears to tell the truth, then that's the truth? Why should I be questioning that?

Question 3:

My question is, how can legislation change to allow for a fairer assessment of facts for both parties, allowing for less sexual offenders to get off on bases such as the complainant's sexual history or outfit of choice?

Julianna G.:

And one of the things that I want to point out in your question that I think is very important is that you talk about the notion of the complainants' getting a fair trial. It's not appropriate. The one person who needs a fair trial is the accused person whose been charged with criminal offenses, and the issue we should always only be grappling with is, did the accused have a fair trial? Nobody else is entitled to a fair trial, just the accused.

We have to understand as well, trials are not necessarily to get at the truth, okay? And we look at that and we want that to be, we hope that that can be sometimes, but not always, and the truth is not always had, and especially those people who are wrongly accused and sometimes wrongly convicted, and then after another trial, finally fairly, appropriately acquitted, it definitely didn't get us the truth, right? So it's not necessarily to get us the truth, but it's to have as fair a process as possible.

So the system is potentially broken in a lot of ways. Our big focus is sexual assault, but there's a whole lot of other things as well there too. Imagine being in a prison for a minute and a half and you did not do what you were convicted of doing. It is the most ... I mean, I can't even imagine what kind of horrifying experience it is. We have our system to protect them, and still our system fails.

Question 4:

So many criminal defense lawyers, including your late father, have linked their desire of protecting and defending the rights of individuals to the reason why they entered their profession. It is widely known that there is inadequate access to justice in our society. 80% of Ontarians represent themselves in court due to financial restraints. Having interned at the Office of the Cook County Public Defender in Chicago, I'm sure you were exposed to the complex problems in the system, including insufficient funding, overload of cases, and strong incentive for fast plea bargains, thus not acting in the client's best interest, so I'm wondering what changes do you believe need to be made to ensure that the rights of all individuals are protected and defended fairly?

Julianna G.:

In Ontario and in most provinces in Canada, we have a legal aid system, and the way it works is that anyone can take on what we call a certificate, a legal aid certificate. So the government issues a legal aid certificate to an individual who can't otherwise afford counsel because you're entitled to counsel if you want counsel. And then a private lawyer can take on a certificate, and we are shockingly, woefully underfunded when it comes to legal aid because, guess what? It's not political to pay bad guys to be able to get money to get lawyers, right? So when it comes to the legal aid system, it's very hard to get funding because nobody wants to fund this. Until you find yourself in a situation where, God forbid, you're charged with a criminal defense and you need yourself a lawyer.

So as a result, you need to have an annual income of about less than $10,000 a year in order to be eligible for legal aid.

Ralph Lean:

Who has less than $10,000 a year? You can't live on that.

Julianna G.:

No, you can't. So people who are very low bracket income, like very low bracket, and then are charged with criminal offenses are not entitled to legal aid in our province because we're so underfunded, and then they don't have money to ultimately be able to afford an attorney, a lawyer. So a lot of people go to court and represent themselves, and it becomes a very scary process because it can be complicated and can be difficult to do, and it's disastrous, unfortunately, and what happens is when you get [inaudible] government, you get the conservatives, they're like, "Increase penalties. Increase mandatory minimum sentences. Create further charges. Create this, create that." And we get this wealth of more people who are getting charged with criminal offenses, none of whom can afford lawyers. Appropriately have lawyers. So the system is constantly in crisis because of that.

The United States, in many states, there's a public defender system in place where lawyers are just essentially legal aid lawyers and nothing else. They're not private lawyers. They literally work for the government, like there's the prosecutors that work for the government and defense lawyers who work for the government. Neither system works very well because then if they're public defenders, they walk into court that morning, there are 50 people on their docket, and they're trying to plea bargain everybody they can to get through because it's literally like an assembly line type of system, and it's very sad, especially when you care about the justice process and you see all of this happening. But you can't keep up. You can't keep up with all the people charged to try to be able to give everybody justice.

So what's the answer? I think I prefer the legal aid system better because then private lawyers can take on a legal aid certificate if they want to for other reasons or because they can afford to take on legal aid matters, and I think the legal aid lawyer, the hourly rate is ... I mean, it's so low, I'm not even sure what it is right now, but it's very bad, so a lot of lawyers only take on murder cases because they can get more funding. But it allows more lawyers to be engaged in the legal aid process and what it needs is more funding. What needs to happen is the government needs to not be afraid to say, "Let's fund better the legal aid system so that people can get themselves lawyers." Increase the annual income for individuals so people who make $12,000 a year and are charged can actually get some aid in hiring a criminal defense lawyer to help them.

It's a very unfortunate process and a lot of people as a result do not get justice and a lot of people are wrongly convicted because they can't defend themselves, and it's under the rug because nobody cares except defense lawyers who are in the system, and it happens on a regular basis.

Question 5:

Do you believe that the Canadian justice system and enforcement of criminal laws are too lenient or too strict? What changes would you suggest to introduce and enhance the efficiency and effectiveness of Canadian criminal law?

Julianna G.:

There definitely is and continues to be a big different between the Canadian criminal justice system and the US criminal justice system, and one of the things are the notions of the tough on crime idea. If you were to get a sentence in Canada for whatever crime for three years, you exponentially increase that sentence by about five, and that's the sentence you would get in the United States. Literally throw people away and lock the key. I mean, life literally means life. Some people get 300 years or 720 years. I mean, it doesn't even make sense. It's a system that has gone completely bananas and it's because this continued frenzy of the public perception is there's still crime on the street, what do we need to do? We need to make it be tougher on crime. That's the constant and persistent answer, and so ... and then they say, then the people get out, they're 17 years old, they go to prison for 20 years, and then they're out on the street and they have to be rehabilitated. All right. They've just spent 20 years in prison.

How is someone supposed to be rehabilitated, and especially if it's a case of, let's say, drugs, and they're a young teenager on the streets who lived in a very bad neighbourhood and ended up helping someone carry a bag from here to here, and then ends up getting picked up and there's a mandatory minimum of 20 years, and they've served 20 years. So their entire young adult life is gone down the toilet, and then they come out, and yeah, they're a hardened criminal at that point. What's supposed to happen at that point? So it becomes a juxtaposition between not tougher sentences and the notion of rehabilitating, but more lenient sentences, the notion of education, and the notion of starting at the root of things and creating a better social system environment, that helps be less tough on crime, and then it helps to have less crime.

The US is off the mark. When I left the US and I came back here, it was incredible. I actually had prosecutors who were withdrawing charges against clients of mine who were looking at the case and they said, "You know what? I see this guy. I see that he's got a future. I see all these things. I can understand the situation." And they talked to me, and they actually helped make the system a better system. In the US, it's all about prosecution, it is all about winning, it is all about numbers, and it is all about showing how tough on crime they are, and people have no chance once they get into the United States and they're dealing with ... People take convictions 100% because in the US, if you go to trial and you're convicted, your sentence is enhanced because you defended yourself and your right to go to trial.

You're actually dinged for saying, "Okay, prove your case against me." And your sentence is elevated. So everyone pleads guilty. Canada is very different and it is a much kinder, gentler country when it comes to the criminal justice system, but we, with Harper, had a number of mandatory minimums that ultimately were deemed unconstitutional, a number of them happening, and they may now change with the new government, but it was this sort of safe streets act. Let's be tough on crime. Let's be tough on crime. In the face of crime going down. But people in government don't like crime going down because then they can't fund the police, they can't take moneys to divert certain places, so they say, "No, no, no. Crime's not going down. You see, there was just a shooting the other day." Meanwhile, it was like the first shooting in the first four months, whereas in the city of Chicago, in the first week, there were 30 shootings.

It's this elevated frenzy of things that make you want to increase sentences. What needs to happen is something that needed to happen in the '60s, and the '50s when there were all these investigations about the system of education on the early end. People are in bad neighborhoods, not properly educated. That's where the funding needs to go, not to creating more prisons and elevating prison sentences, doing all the kinds of ... it's never helped. Doesn't help anybody ever and it definitely doesn't help us in the public when these people are then released back out in the community and they've got nothing, and they've had no skills, they've learned nothing. There's programming in prison, but it's woefully inadequate, so it's a matter of getting in on the front end and creating an empathetic approach to certain people charged with certain offenses so that we can get more people out of the prison system and in a rehabilitative type of program.

Question 6:

Being a board member of the Canadian Civil Liberties Association, do you believe that constitutional protections, both here in Canada as well as the United States, are strong enough to withstand new populous messages or the tyranny of the majority?

Julianna G.:

Yeah, so I'm a member of the CCLA and I obviously have, when it comes to a moral compass about constitutional protection and constitutional rights. What's going on in the United States, all we can do is just sit there and watch it implode in on itself and it's unfortunate. There's nothing. And we can't ... as Canadians who have certain Canadian values, watching what's happening, at least in the initial stages, it's just hard to know what's going to ultimately unfold. We are very different, and right now with what's going on in the United States, I think it just shows the incredible differences that exist here, and all of this is encapsulated even in the criminal justice system, the criminal justice process. I mean, we have ... I don't want to say ... Canadians are looked upon as naïve, we're sort of the naïve country, and I like that because I like being thought of as that's the kind of world that we live in because we are. We have certain values and we believe in constitutional fairness for every individual. We truly are sort of like that melting pot that the US has tried to suggest and is not. And we have terrible tragedies that occur in Canada, I mean, what just happened in Quebec is horrifying, and it happens, it happens all over the world.

Unfortunately we're not escaping either as well, but I don't think we're going to be affected by that notion. What's been going on in the Trump world I think is sort of separate and distinct in our country, and even though ... and our criminal justice system has unfortunately followed suit, so as they've gotten tougher on crime, we started to get tougher on crime too. And maybe now with some of the extremes that are happening there, we will sit back and say, "Okay, they can go ahead and do what they're doing and we're just going to continue to do what we're going to do her and maybe we'll become more of an international ... get a perspective internationally, in the international community of us being truly fair on everyone's constitutional rights, constitutional freedoms and protections for every single individual regardless of race, ethnicity, religion, all that kind of thing." And that may end up happening.

As you look at the nice northern people as compared to what's happening in the US, that we actually truly respect those values, unlike what is unfortunately happening in the United States.

Question 7:

The president of the Canadian Bar Association, Michelle Holland, has publicly stated that the stigma around mental illness and addiction in the legal profession is still prominent today. To combat this issue, the CBA has created a wellness professional development program that gives legal professionals knowledge to recognize the signs, manage the issues, and deal with a full range of mental health and addiction issues. Bearing in mind the conflicting home and work priorities that legal professionals constantly balance, what ramifications in your personal experience as a criminal lawyer do the crimes of your clients have on your own mental health and wellness, and how difficult is it for you to separate your work from your personal life, knowing the details and secrets of the crimes your clients have committed?

Julianna G.:

I don't get affected in that way because I think about my role as a defense lawyer. I don't get burdened by the facts, I don't get burdened by the circumstances, I look at it and say, "How can I help this person, and how can I help that person within my ethical and professional obligations as a lawyer and as an officer of the court?" So it does not affect me. Some people do, though, get affected by it. And those who do do leave this profession, and they should because they're no longer going to be that effective lawyer for their client anymore, and it's okay.

I look at a case, regardless of what the facts and circumstances are, I meet with that client, I get to meet my client and I say, "How can I represent this person?"

Ralph Lean:

On behalf of Ryerson, I want to thank you.

Dr. Murphy:

Like Nobody's Business is a presentation of Toronto Metropolitan University Ted Rogers School of Management. For more information about TRSM, visit Ryerson.ca/tedrogersschool. I'm Dr. Stephen Murphy. Thank you for listening.