Harpreet Saini

2I'm well, thank you. Happy— thank you for having me.

4Well, it's really just dumb luck more than anything. I, I set up the Twitter account, and at first the intention was to tweet interesting things about the law and new cases that come out and whatnot. And that was a niche that's been filled already by people who are very good at it and better than me. And then more and more I just started tweeting nonsense, which is sometimes law related, sometimes not. And people like that, I guess. I guess people like the idea that lawyers can also be parents and have real lives and interested in pop culture. And I, I still sometimes tweet law stuff, but not a lot. And I guess it's just what people connect to.

5So there you have it.

7Well, it's a big chunk of my day, right? So I have two kids. They're now 10 and 8. They're in school right now. My wife, she works a lot. And because of the nature of the work I do, I'm home a lot more. So I get to be the primary caregiver in a lot of ways. And so because that's a big chunk of my day, that's going to be a big chunk of the things that I tweet about. It so happens then that people relate to that. And also, I guess it's still unusual for people to see the father being the primary caregiver, which is our situation. And that's a good thing for people to see that, hey, it doesn't always have to be mom, it can be dad as well.

8And in fact, dads should be doing more. Dads should be doing more of the pickups and the drop-offs and making lunches, et cetera, et cetera. I do it and I want other people to see it as well. So I, I tweet about my kids because that's a big chunk of my day, and that's what also what people relate to.

10I do have a recollection of when I was a kid, yes.

12Heartlake Secondary School, so it is in Brampton. You go all the way up to 410 if you're familiar.

14So you know that. See, Brampton, North Brampton, there's a high school called Heartlake Secondary School, and that's where I did my high school many, many, many moons ago. Still there.

16Yeah, I actually was not born in Canada, but I came to Canada when I was very little. I was an infant when I came to Canada. But pretty much you could say I was born in Canada. All my upbringing is in, is in Brampton, essentially. And my parents came here from Punjab, which is in India. And yeah, that, that's our story. We, we showed up here in August of 1977, my mom and I.

18Yep, it's not even technically, it just is. I, I, okay. And one of the funny things about discourse is in, in Canada is you can change a lot of things about who you are, your politics, your how you feel, your job, whatever, whatever, whatever. But once you are an immigrant, you are always an immigrant, and that is something that does not change about you. You could be in Canada for 70 years, 60 years, it doesn't make a difference. But once you have the label of immigrant That's what you are and it never changes. So we're both immigrants.

20As you should.

22I do.

24No, I mean, no one knew where we— where I would end up. I didn't know where I would end up. My parents, they worked long hours, as is frequently the case with, with your typical immigrant story. A lot of my upbringing was with my grandparents who were living in the house with us, and with many uncles and aunts and whatnot. And really, it was a matter of go to school, study hard, work hard, and, you know, get a job. So there's all that type of pressure. With many South Asian families, the goal is either doctor, engineer, or accountant. Those are the 3 things that they push you towards, and I ended up being none of those.

25A lawyer in India is, at the time, was not considered a high-profile profession compared to the sciences, compared to doctors, engineers, and accountants. So in a way, at first, it was a step down to be a lawyer. Because he wanted me to be a doctor. That did not work out. I mean, I still could go, but that, that bridge has probably been passed by now. So no, no one did.

27Yes.

29Sure. So my religion is not something that I— my relationship with my religion is not something I really talk about a lot. It is a part of me, and it is important to me. But when you say how you end up where you end up, it's going to be a combination of many different things. And religion is one of them for me. I know that in Sikhism, one of the things that we focus on is fighting and fighting for the underprivileged, for the people who cannot fight for themselves. That's something that runs through, a common theme that runs through our religion generally. So for me to be a criminal defence lawyer is actually very much in line with that religious upbringing.

30And it's not something that was that was explicit in how I made my decisions. But that, in combination with everything else, brings me to where I am now.

32No, it's not.

34It is difficult, and you're right it's a tough area to get into and it's a tough area to live in. But first things first, criminal defense lawyers or criminal lawyers in general, we want to be in court. We are in court most days. We are in court more than your other litigators. If you're a civil litigator and you could, if you're a civil lawyer and you call yourself a litigator, that's great. But as criminal lawyers, we laugh at you a little bit because we are the real litigators. We are in court all the time. So then the question then becomes, is you want to be in court? Fine. You're going to go into criminal law.

35Do you want to be a Crown or do you want to be a defence lawyer. I think that if you are more likely to question those who are in position of power, if you are more likely to question the status quo, if you are more interested in fighting for the underprivileged, the marginalized, those who live at the periphery of society, you will gravitate towards the criminal defence bar. Because that's what we do every day. We fight for the marginalized, and in doing so, we fight for all of us as well because the role we play is so important to society at large.

37Oh, 100%. There is a strong rebellious streak in the criminal defense lawyer. We are, in our heart of hearts, oftentimes rebellious, and that makes us again gravitate towards the criminal defense bar. Because when we fight in any case, we're not necessarily fighting against a single person. We're fighting against His Majesty itself. That is our opponent. His Majesty the King, who sends his representatives to persecute and prosecute our marginalized clients. And there's an appeal to that for many people. Right? It's understandable. I get that.

40So it depends, your typical lawyer answer. But you'll go through stretches where you have longer cases. And for example, if you have a jury trial that lasts 3 months, then in that month you've done one trial. It was one trial, it was a jury trial that took the entire month. On the other hand, if you have a string of months where you're doing a bunch of Ontario Court of Justice, OCJ, trials, you can do a couple trials a week. And they could be some smaller domestic trials or over-80 impaired or assault cases. And you can do 1, 2 a week and you can get up, you know, I think more than 2 a week is unhealthy.

41I think around 1 or 2 is about as much as you should do. So if you're doing a bunch of smaller trials, around 4 or 5 a month is about your limit, I think, in order to maintain a balanced practice. But if you're doing a jury trial, that's, that's your month. So it really depends on the type of work you're doing at any given time.

43It's everything, right? And like a basic domestic trial with, with the allegation of domestic assault, you're going to have your complainant who takes a stand, you're gonna have 1 or 2 officers, and that's a trial that can be done in a day, 2 days. It's going to be relatively quick. What we commonly refer to as an impaired over 80, drunk driving. Again, that's a 1 or 2 day trial because there's a limited number of witnesses and it just doesn't take as long. But a jury trial involving, I have a homicide scheduled for next year. We've got 3 weeks of pretrial motion starting next week, and then we got 3 months trial next year because there's like 100 witnesses and it's going to take a long time.

44So it really depends on, on the case you're doing, right? Every case is different.

47sorry, I know they're not going to be stupid, but go

50Okay,

52No, it is not 100 murders, it's only one murder. However, actually, this is one thing that courts have talked about in lamenting the state of criminal law is how complex cases have become. And when we talked about Jordan and delay, there's a distinction between complex and particularly complex. Given that one of the pre-trial motions that I'm doing is to get the charges stayed because of the delay involved, I'll be stressing to say that this case is not particularly complex. This is a typical murder case. But what makes these cases lengthier is that the stakes are so high, everything has to be done more carefully, and every case stands on its own. But in these cases, you're more likely to have a bunch of expert evidence with regards to CFS Center for Forensic Sciences.

53You're going to have experts talk about drugs in the system, cause of death, postmortem. There's a whole bunch of expert evidence with regards to that. Oftentimes these cases will have lengthy investigations and these investigations will involve— could involve wiretaps, it could involve cell phone evidence, they could involve all different types of areas lengthy investigation which takes time to litigate and takes time to present. You're going to have a series of police investigating. They do searches. All that has to be presented. And then you're going to have your actual civilian witnesses, the ones who say, "I saw this, I saw that," and that can be time-consuming as well. If you have multiple co-accused, that doubles, triples the amount of time necessary because now you have 2 or 3 lawyers, all of which have to protect their independent clients.

54So especially when you get to the more serious cases everything becomes far more painstaking because the stakes are so much higher. You're not going to get wiretaps on a typical domestic assault where one spouse hits the other spouse. It's going to be far more basic. The investigations are more basic. The allegations are more basic, you get it done in a couple days. But a murder investigation is going to be a far bigger thing, far larger, extensive thing, which means there's just more to present.

56Yeah, no, that oftentimes in many cases that will be a legitimate question. I'm not going to talk about the facts of my specific case, but in general, you know, that could be a live issue. Did this person die because they were shot, or was it because of the drugs in the system? For example, that's a common example. Was it the drugs in the system, or was it something else? Was there previous condition that ended up killing that person? When did they die? What was the time of death? That can be an important thing as well. And all of this will be based on the forensics that comes out and the expert reports that come out.

57And that these become oftentimes become issues of litigation and live issues for ultimately juries to consider.

59And subsequent appeals, right?

61Sure.

631 or 2 is healthy. There are lawyers who do more, and that's, I say that that's too much. Once you're doing more than 2 a week, you've got a problem, I think.

65Oh, it can be anything. So the Ontario Court of Justice, the low courts, which is where these shorter trials happen, it really is the trenches. They really are the trenches of the criminal justice system where you're really flying by the seat of your pants. Right? You, you have your disclosure and you prep as best as you can, but you show up, you don't know which witnesses are going to show up, you really don't know what they're going to say, and you're really just kind of going based on what, what, what's happening in front of you. Crowns are going to come up with with legal arguments, and you don't have necessarily have the luxury of saying, Your Honor, let me go research this.

66You kind of just have to get up and talk. So it's, it's really It's the trenches, it's the wild, wild west, whatever you want to call it. But there's, you really never know what's going to happen. And that's why that's part of the charm of Ontario Court of Justice trials, that you really don't know what's going to happen when you show up for trial.

68Well, I mean, oftentimes there'll be charter issues still, you know, you still have to have charter issues. You still have your voluntariness voir dires, for statements. These are legal issues. Sometimes you have to be careful with how Crown attorneys will cross-examine complainants, what type of evidence they bring in. And don't get me wrong, if it's a sexual assault trial or whatnot, they can still get very complex even in the Ontario Court of Justice. With 276 motions, 278 motions, which for criminal practitioners that we know exactly what those numbers mean and what comes from those numbers. But there, don't get me wrong, there is a degree of complexity, but it's also a degree of unpredictability, which is greater in the Ontario Court of Justice.

70you gotta

72Yeah, so that's why that's part of preparation, is you have to be— you have to have an understanding of what your client's version of events is so that you put those things to the witness. Now, the rule of Brown and Dunn, it's actually oftentimes misunderstood. You don't have to put every single minute detail to the witness. That is a false thing. That does not have to happen. But it's important to put to the witness the keystrokes, the, the important things that, that you know will come up when and if your client takes a stand. And also, if you know you're going to make hay out of something in your submissions, you have to put those things to the witness as well.

73Actually, it's oftentimes the Crown attorneys who mess up on Brown and Dunn because they're not as used to cross-examining because our witness— our clients take the stand less often, and they're the ones who frequently will forget to put certain things to to, to witnesses in cross-examination. And then that's when in submissions we'll bring that up. But Brown and Dunn is is, is frequently misunderstood.

75Sure. So without having the research in front of me, I can say with a very high level of confidence that simple assault is the most basic and most commonly litigated case across Canada. Be it domestic, be it barroom brawl, be it two buddies getting into a fight after having a few too many alcoholic beverages. Assault, assault, assault is your most common charge across Canada, probably by far. And again, I don't have the research in front of me, but I can say that with some confidence. In the Greater Toronto Area, and probably other jurisdictions as well, drunk driving is also very, very common. So those are your two most common areas: drunk driving, especially in suburban jurisdictions, and just basic assaults.

76The law on assault is actually very simple. There isn't really much to litigate. Oftentimes it'll be consent-related issues— who started it, who ended it, etc., etc. And oftentimes it can also be a whodunit. Identity is frequently an issue in assault cases as well. Over 80 impaired drunk driving cases are very much a niche area. A lot of lawyers do it, of course, but the lawyers who, who defend drunk driving cases the best are the ones who focus on them the most, because drunk driving cases are ridiculously complex and they're very difficult to win as well. As the law, the pendulum swings further and further away from the potential defenses in those cases. We're not going to get into drunk driving today, I promise you, because it's okay.

77It's complex. There's a lot, like a lot.

79I've done many jury trials.

81Sure.

83Jury trials, more than any other type of law, I'm going to say in general, really brings in the dramatic aspect of our, of our practice, of our profession. Jury trials more than anything else is theater. Where it no longer— it, it's no longer just a matter of being right, because you can be right, but you also have to appear to be right. And everything becomes a matter of theater. Every movement, every gesture, everything you do is— you have to be concerned that you and your client are being scrutinized. So everything as simple as where's your client sitting Is your client sitting next to you, or is your client sitting in the prisoner's dock?

84It makes a difference, because if your jury sees your client sitting next to you, that creates a perception, a subconscious one or conscious, but it creates a perception. So a jury trial is very much about theater, how you present yourself. Are you fumbling? Are you speaking clearly? We hope, we hope that judges are able to look past presentation. So if a lawyer is speaking and they're maybe, they're slow, they're kind of fumbling for their notes a little bit, judges are like, yeah, whatever, I'm listening to the content of what you're saying. Juries aren't having that. They want to see you present in a way that exudes confidence and competence. And you can be competent and be fumbling with your notes, but a jury doesn't think that.

85If a jury sees you fumbling about, they're going to think this guy doesn't know what he's doing. So the theatrical aspect of the law is really personified when you're in front of 12 people.

87Well, the word manipulate, it has a connotation. So I'm not going to say that I've seen lawyers manipulate juries. What I will say is that lawyers will use the strength of their advocacy to convince jurors. And sometimes you can have a difficult case, but if you're an incredible advocate, That's what you're there for. That's not manipulation. That's advocacy is what I say. And yes, 100%. I've seen lawyers and I've known excellent lawyers who have taken very difficult cases, but they've managed to convince juries of reasonable doubt. And I would say it's oftentimes a creature of their skills as an advocate. That's what we're there for.

90Yes,

92So I think what differentiates a regular criminal trial from a jury trial is that in a jury trial, what you are trying to create is a story. It's a narrative, right? And it's a narrative that you, you establish based on what your client tells you. So you have the Crown version, they're trying to do the exact same thing. They're trying to create a narrative, a story with themes, and that's what they're trying to give to the jury. Well, what you have to do as a criminal defense lawyer is you talk to your client, you review the disclosure, you do all that, and then you create, based on all that information, the, the story, the themes, the narrative that you want to present to the jury.

93All right? And the— your most successful criminal defense lawyers will be the ones who will be able to establish a narrative that is— that a jury that can then take to their room and say, this is what happened. This is, this is what happened on this dark, stormy night 3 years ago when it was just the person who's dead and the accused person in a room by themselves. Maybe it was this, maybe it was that. And every witness you cross-examine should further that narrative, right? And when you're successful in a jury trial, it's because you were able to establish that this is a narrative, this is what happened. You're able to sell a story to them.

94And sell makes it, I think, kind of belittles it a little bit. I just can't think of a better word right now than that. But that's really what it is. And the Crown's doing the exact same thing. Right? We're all doing the same thing with the jury. With the judge, you can focus more on the technicalities or the minutiae of the law, etc., etc. And you do that with juries too, don't get me wrong. But with the jury also, you're looking at a broad picture. You want them to be able to go back into the jury room and say, these are the themes that are important to me and to the defense. And that's what you want them to focus on.

95So sometimes that theme will be based on the science of it, or it'll be based on none of these witnesses are trustworthy, or look how, or, or how small and meek and more likely it is that they were defending themselves the accused is, so on and so forth. But you, you want to have a theme, you want to have a narrative. And you want to have a plan when you go in. I don't know if that's helpful or not.

97Sure.

99Less so now than before, but yeah.

101Oh, 100%.

103Yes, and yet having said that, juries are oftentimes still predominantly white. They are still predominantly middle or upper echelons of socioeconomic society. They are frequently not from the marginalized groups and marginalized peoples that we represent. So even though you're right, everything that you said there, oftentimes the difficulties that we face, the juries that we get are not representative of the people that they are presiding over. So I'll give you a very basic example. In a case where a young person of colour encounters the police and they run away, a jury hears that. They're predominantly white, they're middle class, they personally haven't had problems with the police. They hear that and say, "Oh, guy ran away from the police.

104Guilty. Because why would you run away from the police?" So then, What we have to do from our end in this circumstance is try and help the jury understand that no, no, no, listen, if you're a poor person of color in a marginalized neighborhood where the police are not always your friend, you could be an innocent person. And when you're approached by the police, you run away because you're afraid that they're going to arrest you for something you didn't do, or they're going to beat the crap out of you, or whatever the case may be. So again, that is a narrative. So you're right, GTA is a melting pot. GTA has different cultures, et cetera.

105But the, because juries don't always represent that and they don't always understand the worlds that our clients come from, you have to help them understand that their experiences may differ and probably do differ from those of our clients.

107That's generally correct, yep.

109No, no, you shouldn't use cultural generalizations at all. And an example, a different type of generalization that you absolutely cannot use and should not be able to use in favor of an accused are examples with regards to sexual offenses. In fact, we have an entire regime that prevents us from doing just that. And there's a lot of litigation, a lot of feelings about how that regime works or doesn't work. But no, you can't use improper generalizations for or against an accused. The case you're referring to was the idea where the Crown was— and now I'm simplifying— but the Crown was implying that witnesses who were South Asian were more likely to lie because of cultural-related reasons to protect their relative who was the accused.

110Right? And that you absolutely cannot do. And that's a situation where it favours the accused. But I'll give you another example, which is equally important. And you can't say in favour of the defence, you can't generalize the way a victim of sexual assault will behave after their— if they— sorry, I'm stumbling. You can't generalize based on how you think a victim of sexual assault should behave if they are in fact a victim. So it works both ways. You can't use generalizations, cultural generalizations in favor or against an accused in general. That's a broad sweeping generalization, and I'm sure a lot of criminal defense lawyers are going to hear that and think of a million exceptions, and they'll, they'll make fun of me.

111But

113Yeah,

116No, so it's a reality. Right? So if you live in a certain neighborhood that's affluent, which is without a lot of the problems of other more marginalized communities, you may not understand how things work in that community. Right? So if you have a representative jury, you don't have to necessarily go through the rigmarole of explaining to that jury how things work in these communities because they already know. So in the situation I gave you, I now have to explain to the jury that no, no, no, sometimes people run away from the police because police are dangerous and they can beat the crap out of you. And the jury has a, oh really? Oh, I didn't know that.

117Okay. But a representative jury is more likely to understand and accept that. Right? They're going to get that more. So go ahead.

119I was going to say it's not a matter of a cultural generalization. It's a matter of explaining to a jury a reality about a segment of society that they're just not familiar with.

121The expectation is that, well, you hope your client gets a fair trial. And if that, what that means is that hopefully the lived experiences of some of the jurors on a representative jury will be able to explain to others that, "No, no, no, this is a thing that happens in these communities. And I know that you don't understand that 'cause you live in an affluent neighborhood of Toronto, but no, this is how things work." And then that other member of the jury will be like, "Oh really? Okay, now I know this." Right? And that's why representation in juries is important, so that you have a broader, a broader foundation of lived experiences, because that's what a jury is supposed to be, right?

122A representative of the community. But if only a part of the community is represented, then it's not a proper jury.

124Yeah.

126For undergrad, yeah.

128Yeah, for my first 9 years as a lawyer, I was with Hicks Adams. I was getting— but Hicks Adams, it was a cross-GTA firm. So even when I was with Hicks Adams, I was still predominantly in Brampton and, you know, for reasons that were convenient for my commute, I preferred to be in Brampton because it's a quicker drive as opposed to commuting into Old City Hall every day. So it worked out.

130Brampton is near and dear to my heart and it's, I'm known to be an advocate for my suburban city, which takes a lot of flak, but Brampton's a great place for to grow up. I, I wouldn't want to— it's not perfect, not by any means is it perfect. There's a lot to work on, but it's a good place and I like it here and I like having my kids here. And I don't know what else to say about that.

132Yeah, something like that.

134Let me check my lotto ticket. There's an expression which I don't like the stereotype, but there are a lot of lawyers do say that in criminal defense, you don't retire, you die. I don't like that. I don't like that idea of us working ourselves to death. I hope that, you know, someday I get to that point where I can slow down and take less cases. But I doubt that I would quit entirely because you got to do something. You got to keep busy. But yeah, we do need to change the culture of grinding till you die. And I hope that younger lawyers are able to not, not do that to themselves. We'll see what happens.

135I got a long ways to go still. Knock wood.

137Hope not. No, they're gonna be a doctor or an accountant or an engineer. That's the plan. They're gonna do what I could not.

139You're placing me in excellent company, and probably undeserved, but thank you for that.

141No problem.