Marie Henein

2Hi, how are you?

5That is very funny.

7Yeah, I think he does. He does that frequently, although it's a little tougher now that he's part of our firm.

9Yeah.

11No. So what happened is the book had been written and ready for release before the pandemic. Obviously, I didn't know the pandemic was coming. But just before it was about to be released, I contacted my publisher and told them that I was not ready to release it. I just felt that because it was such a personal story, and that it, I think, exposed a lot of my personal life, and having been through the public eye before and understanding what's involved with that, I just was not ready to go through it again. And I just needed some time away from the book to see whether I was saying what I wanted to say. And they were alarmed but agreed and said, "Well, can we publish it at some point?"

12I said, "Yes, I just need a bit of time." And then the pandemic happened. So, you know, it looked like the most brilliant strategic move on my part, but it wasn't. It was just— it was well before it. And so I didn't pick it up during the pandemic probably for the first 10 months because I didn't want to read it. I wanted to stay away from it. And then did pick it up and read through it from front to back to see how I felt with some time having passed. And I felt good about releasing it. It, you know, allowed me to tweak a bit of the language. I mean, it had already gone to printing.

13And I did add the epilogue and the post— sorry, the postscript to it about the pandemic. That was new. But other than that, no, I didn't change the content, and off it went. So I didn't write it during the pandemic.

15No, I like the highest profile lawyer in Canada. That works for me. Yeah, I do. I, I like it because, you know, having read about where I came from and what I expected, this is unexpected. So I'm not I, I like it for a number of reasons. Obviously on a personal level, it feels good that you've achieved what you set out to achieve in terms of being respected in the profession, but Also, for me, it is really gratifying that for the public, when they think of a criminal lawyer or a lawyer, they identify a woman in that position, that that's not unusual for them, that you are known as a person who takes on difficult cases and is able to work through them, and that when they think of a lawyer, they think of a female criminal lawyer.

16That makes me feel very good, of course. I think changing people's expectations and the public's perception. And so being visible in this profession, I think, is important.

1811 years.

20I would. I mean, I, I joined his firm because for me. He was the epitome of what I thought a criminal lawyer should be. He was what I wanted to be as as in, in terms of skills as a lawyer. So, you know, I got to see his cross-examinations. I got to see how he prepared a case. I learned all of that by being there and working with him and, and watching him and bugging him relentlessly with my questions and also working with Mark Rosenberg on the appeals side. It was what I wanted, but, you know, I wasn't forced into it. This— that was the place I was so desperate to learn from.

21And now being in this profession for 3 decades, it was the right place for me. For me, it worked, you know, it worked. It did exactly what I hoped it would do in terms of learning and improving my skills.

23He was. And when you say predecessor, you assume that I thought anyone would ever be as high profile as him. I never did. I, I remember in his office he would have all of these framed articles about him, and I would, you know, when he wasn't there, I'd go back and read them. I was you know, so dazzled by him and what he had accomplished. And I would say to him, you know, do you realize how incredible you are? Because there will be nobody in our lifetime that will have this profile, that the idea that a criminal lawyer would be a household name it's just unheard of. It's such an incredible thing.

24And so he had resonated with the public in a way that no lawyer had. And I never in my wildest dreams thought another lawyer would. So I was very aware of his contribution to the public's perception of what lawyers are. And, you know, he spent months talking on a circuit about anti-death penalty. I mean, he's very committed to our justice system. And I just never thought we'd see that again. I never anticipated it. And it wasn't what I was directing my career to. I just wanted to be very good at law. I wanted to be a good lawyer, more than a good lawyer. I wanted to be the best lawyer that I could conceivably be.

25That was my focus. That was where I thought I could control my career. You know, you can never control the rest of it.

27The best lawyer.

29Okay.

32Yeah.

34Uh,

36No, it's not a deliberate strategy. You didn't see what I look like when I'm not sitting in my robes. I think I look like a star before then. So maybe I need to send you some other pictures.

38Yeah, because I, I've loved fashion my, my whole life. You know, some are good choices, some are not. But, you know, I was wearing— oh, I used to go to a girls' high school which was a uniform Catholic school, but we'd have like one day a month where you could wear whatever you want. You know, and my uncle was living in New York and would bring back clothes for me. I was going to school in high school in leather pants. So no, I've always loved fashion. You know, my hair was different colors throughout the years. It just happens on the moment you photograph me. Some are good shots, some are not. But I have to confess, I've been a fashion victim my whole life.

39So some have been hitting, you know, some hits, some miss. So

41There is none.

43Well, I mean, I could do the job— I always tell people, I, you know, I could do the job wearing Birkenstocks and pajamas. So you shouldn't confuse a person's— and for women in particular, because men change over the years as well, as you know. Very little attention is paid to what they wear or, or what they look like, or whether their hair is straight or long or It's really wrong and it's a tendency to confuse women's appearance with their ability. I'm not in a profession where I make money off my appearance. If I did, it would be irrelevant consideration. I make it based on what my skill is as a lawyer and, you know, how I choose to present myself, obviously, is professional because I represent my clients.

44But beyond that, It's really not for anybody to to draw anything from other than, you know, I like to wear what I like to wear and I'll continue to do that. But it would be a big mistake to confuse the two.

46I tend to agree with you. They do.

48No, I don't think so. First of all, it has nothing to do with it. You know, when you have a high-profile case, what it means is all eyes are on everybody— on the judge, on the prosecution, on the defense. And so you are under a microscope in a way that often, as you know, when we practice, we are not. And people are slightly more relaxed. So the scrutiny is more intense when you have a high-profile case. So, you know, fame doesn't get you anything other than more scrutiny, which is not necessarily the best way to have to litigate or the best circumstances to litigate in. I think for young lawyers listening, what experience gets you and what credibility gets you, and credibility is something that you earn and you develop in having confidence with judges and with Crown attorneys that they know you're a person to be relied on and that you mean what you say.

49What that gives you is a bit of runway when you are arguing in court whether it's a trial or an appeal, you might get the benefit of the doubt. And by that, I mean the court will let you expand your position. 'Cause sometimes, you know, you can't say it in 5 minutes. You need to develop your position. So you'll get the courtesy, the indulgence of saying, okay, you know what? I'm not buying it, but I'm gonna let you try to convince me. I'm gonna let you go a little bit. And so that runway, I think, is what you get with experience and seniority and demonstrating that you're somebody doesn't waste the court's time. And that's very valuable to a client because it's very difficult, as you know, sometimes to articulate or to get to what you want when you don't have an ability to build the narrative or get that leeway.

50So that's what I think it gets you. But, you know, the being known part, I don't know that that alone helps a whole lot.

52I think they may be more interested in you. You know, there are numerous jury studies that look at clients and look at their lawyers, and obviously if a jury likes the lawyer, they tend to be more willing to listen to you. There is a natural tendency for the public to identify a client with their lawyer, and so that may have a bit of an impact, but I don't know that it carries the day at all.

54Well, with a judge, you at least know generally what they're thinking. A jury is completely imperceptible. It's impossible to understand what is going on. And, you know, as we see in cases, let's say that you do hear about what a jury was thinking in the States in particular. It's quite shocking and surprising what impacted them, what didn't impact them, what they were thinking about. The good thing about a judge generally is they will tell you, you know, look, I'm having a problem with this part of your argument, or I'm having a problem with this position. And so you have a chance at least to address it. I don't know, I find juries impossible to to determine.

55And because of that, you know, people will find that in a case where it's so hard, often you will go with a jury because you never know what they're going to do.

57No, I think, I think advocacy is an art across the board, whether it's a judge or a jury. If they don't want to listen to you, if they're not buying the position you're advancing, if you're not being persuasive, if you're not landing your points at the time you need to land them, if you're not telling a story or a narrative, which as lawyers, I think we forget that that is what we are doing. We are laying out a narrative and we have to be compelling in that narrative. If you're not able to do that with a judge or a jury in written or oral advocacy, you know, you're going to fail. So they both require that skill set.

60Well, I don't think, you know, it's interesting. I guess I didn't see it as trauma. I think maybe I have seen so much of it in my business that it pales in comparison to what so many people we know go through on a daily basis. What I did try to capture and what I hoped would resonate was the experience of, being an immigrant, because that is the most lasting thing for me. And I don't think people who don't have that experience understand how lost we are when we come to this country in so many ways, you know, not just linguistically, but culturally. And the intergenerational development and getting your roots here is so different for each of us.

61You know, my parents experienced experienced Canada differently than my grandparents, differently than I did, differently than my brother did, who was born here. And so it really is very much a part of who I am. And, and that certainly is something that is with me, and I think it's, it's with all of us. So it's not surprising to me that you say that you— it resonated, because I think so many of us, wherever you're from, have this, this experience. And, and, you know, North America is not white North America is not the experience of the rest of the world. And so, when you come here, you feel disoriented, you know, there's a little bit of discomfort.

62You don't feel like you fit in, for sure. And the not fitting in one is the one that probably would— I would carry the longest. And I have to say, I was surprised with where the book started and where it ended. Because at the end of the day, it sort of ended in the same place. That surprised me that I thought, wow, you know, you're here at this stage in your life, you're older and you still feel that sense of not belonging, of being, you know, an outsider, that that just doesn't seem to melt away for me anyway. I was surprised by that. I think that would be the biggest sort of revelation for me that it just is so deep that it just doesn't go.

63It's, it's always part of you.

65I, I think there were experiences that As I write about in the book, I think to a certain extent, the good thing that came from a person on a personal level from the profile that happened in my career was that Canadians reached out to me and would say, you're a good Canadian. You represent our justice system. You explain our justice system. You make us proud of our justice system. And that feeling of being embraced by Canadians was incredibly deeply meaningful to me and to my family. That moment was significant to me, I would say, of all in my life and not feeling as much of an other. But the truth is you can't miss it, right?

66You can't miss it in the profession, in the world that, you know, you're another because you're female. You can't miss it because you're not white, because you're an immigrant for your family. From a different country. I mean, that always exists. And, you know, the, the keys to the kingdom are still pretty tightly held by a very specific and select group of people. And so nobody wants interlopers. And, you know, you feel that for sure. I, I still feel that. I, I would be naive to think, you know, the doors have been thrown open and the red carpet's been rolled out. It has not.

69I, I was never mad at Canada. You know, I was mad at the people that held a lock on access and excluded so many of us. And, you know, look at, look at the United States. It excludes the— a significant part of the population, the African-American population. We do here, the Indigenous. I mean, we have a history. Colonialism comes from, from somewhere. It's all about exclusion and control. You know, I was never mad at, at Canada, and I will tell you that in my early part of my career, I was so focused on busting through and getting good at what I did that I did not care about anything else. Like, I, I just was not distracted by that.

70I didn't I didn't even think about how people looked at me. I didn't feel any of that. I was just so focused on trying to deal with my work and trying to get good at it. I think, you know, as you get older and as you get a little lonelier in this profession, you sort of look around and go, well, wait a second, where is everybody? Because at 30 years out, there's, few women in the defense bar left at this vintage, and you look around and, you know, you're still attending meetings where they're all males at the meetings and all male lawyers. It's impossible to miss. And so, you know, it does hit you a little bit because you stuck around so long and you have a moment to look up.

71And when you look up, you know, do you love what you see? Not necessarily. But I never, I never had an anger towards Canada because you have to understand, I grew up— my family was so happy to be in Canada. We, my parents, my father and my mother came here for the opportunity, particularly for a young girl. They knew what it would look like in the Middle East and what it would look like here. So for me, I grew up being told, this is why we came, like, it's because of this country, and So I wasn't disappointed in that at all. But you know, you do look around and as I said, you see who's got a lock on positions of power and positions of authority, and that needs to be changed.

73I really think, you know, if you go to a criminal lawyers conference, you can't miss that there's a certain type of person drawn to spending your life on the other side of the government, and that's really what you are doing. And often it— you're spending your life on the other side of the government with people that are not particularly well-liked. So you have to be oppositional by nature. I think That is what you see in criminal lawyers. They're un— and why I loved criminal law is they are uncowed, un— they're just not frightened by that fight. They don't care. They take on these fights, and so many of them win them. Such fundamental fights in our country and in the United States.

74You can't have that fight unless you feel that way, that you don't care. You don't care that it's it's the government, it's the state, it's the man, that that's not going to dissuade you from doing what you, you know, want to do and assert your rights and assert the rights of other people. So, you know, I love that about the personality of criminal lawyers. They are renegades. They are revolutionary in that way.

76Well, I do. I mean, we have a bit of a different structure here in Canada than in the United States. And in Canada, a little bit— more than a little bit, actually— it's important to remember that our prosecutors have an obligation not only to the government but to the accused as well. They are to act fairly. And, you know, most of them, in my experience, take that role on very, very seriously. You wouldn't get charges withdrawn. You wouldn't get them reviewing cases. You wouldn't see prosecutors making the tough decisions that they make every single day when they are looking at all the constellation of factors and looking both at the public interest and also fairness to the accused.

77That view, because we don't have elected prosecutors, is very different in the United States where some of them run for office and they feel like they have to run on platforms that are get tough on crime platforms. And the relationship between prosecutors and defence lawyers is very acrimonious in the United States and very different in Canada, at least in most parts of Canada. I will confess I've had experiences where the relationship between the defence and the prosecution bar is nastier than perhaps other provinces that I'm used to, but But most of my life and my experience has been with prosecutors that are really very, very conscientious and trying to do the right thing and take their role very seriously.

78So,

80of course,

82He's my partner.

84right?

87Well, let me just say, my practice in the last few years has involved a great deal of civil and commercial litigation. So I've had an opportunity late in my career to have an upfront view of what the dynamic is on that side of things and what it's like in the criminal bar. And it's very interesting to me because whenever these conversations are had, the assumption is that the criminal bar needs to— has the problem with civility. That is not the case. And I've spent quite a bit of time sort of trying to understand what is going on. I'll tell you that in the criminal bar, if we wrote the sorts of letters that go across in the civil and commercial bar.

88You would have no relationship with a prosecutor. What you would be told is you're not to be dealt with. You're a person not to be relied on, not to be trusted. In the criminal bar, you would never send a letter confirming a conversation because the idea that you would resile from a conversation would be a career ender for you. It would be known to the judges and to the prosecutors that you are never to be trusted, and you would have a very difficult time working in the business. And so when I thought about why it is that, you know, the Crowns and the defence bar is much more collegial, it's because we have long-standing relationships.

89You know, I prosecuted or I defended cases where Scott or Michal were on the other side for years and years. So we were seeing each other constantly in court. How can you not become friends when you are seeing each other constantly. You know, you're going through the same battles constantly with each other. And you have to remember that prosecutors hold a great deal of authority. And so you want them to listen to you. You want them to give your client the benefit of the doubt. You know, I always hear clients say, oh, you know, my lawyer is fighting with the prosecutor. And I always say, well, how does that help you? That person holds such a great deal of authority over your your welfare that you want them to like your lawyer, not hate your lawyer.

90So because we have an ongoing relationship in criminal law, because you're constantly up against the same people, your reputation is an important thing. On the civil bar, you can have a case once with someone and never see them again in another case, or there are 20 lawyers on a case. And there is a feeling that your client runs the show in a way that you don't see on the criminal bar. Criminal side. And so I gotta tell you it's— you should come over. It's much more collegial on the, on the criminal side of things.

92I mean, try to dabble a little bit.

94did I ruin Did I ruin the interview?

98Scott was doing civil.

100Yeah, he was— Scott Hutchison has been doing civil for the last probably 15 years of his career.

102No relation.

104Let me tell you what was originally going on. You know, when Scott joined the firm and we had many discussions Scott had been out of the Crown's Office. He had been working at a civil litigation firm. He'd been at Stockwoods. And so that's what he'd been doing for years. And we had many conversations. It was all pie in the sky, of course. I have to say some of them were alcohol infused, but we were talking about the idea that there were numerous litigation boutiques out there, but that, you know, the old view of a true barrister where you would have the lawyers doing a murder trial, one day and a civil jury trial the next.

105We seem to have gotten away from that. And so all the litigation boutiques grew out of a civil litigation court. And what we talked about was, was it possible to grow a litigation boutique out of a criminal court? That's where it started. And how would we develop that? Because we thought that the training you get as a litigator on the criminal side is invaluable. It doesn't mean that everyone can do both, but how would you create a firm that was a litigation— known as a litigation boutique firm, but we're starting with this, this core of criminal strength? And that was always the hope and the plan. And we added Alex, and then we began adding associates and partners, and I began veering off into that area a little bit more.

106And that's how we've grown to 24 lawyers now in, in this firm. And our split is half criminal, half civil. In those teams of criminal and civil litigators, there are some litigators that cross over. So Scott would be one. I am one of them. Our partner Jennifer does both criminal and civil. So there are some litigators that will do both and there are some that are specific to the, the criminal, the civil, and the regulatory. So that, that was the inception. It was really— we had no blueprint for it. We didn't think— we didn't know if it would work. And it has developed in the way— we're so happy it has developed in the way that we had hoped that you have this litigation boutique firm with expertise in both civil and criminal.

107And we do think it is a valuable experience and it works for us. You know, all the litigation boutiques are experts in their areas and are excellent as well. Our core, our origin story is slightly different.

110Well, I think if you look at England where a barrister does criminal and civil, a true barrister, and you look at our history of the judges like former Chief Justice Dubin who did all of those things, they practice both civil and criminal, you would know that there is a great deal you can learn from active trial experience because being a good trial lawyer, being an advocate, is not just about cross-examination. You advocate, as I tell young lawyers, from the moment you speak to a prosecutor, you speak to the other side, you're in the mode of advocacy. That's your job. You're not calling them for a casual conversation. So the, the art of advocacy is much more complicated than, than simply standing up and doing an effective cross-examination or going to trial.

111And so what I think the value is, because motions Cases are won and lost on motions, and negotiation, which is a real art form, requires an understanding of strategy, an understanding of law. I wish people would remember that you can't win a case if you don't know what the law is. You have to construct your case based on what the legal analysis is. So you have to see the endgame so that you can see your pathway through it. I think there are a lot of skills that you can learn to make you an effective lawyer in either scenario. And I think what you see, my experience has been in meeting lawyers from states and from here that are really talented, the talented lawyers are lawyers that have the very same skillset.

112I sit on the Supreme Court Advocacy Institute, and so we have people who are appearing in the Supreme Court come and we strike a panel and we have them do a dry run-through. And what always amazes me is often you'll have a criminal lawyer, a civil litigator, and a mix, but the really good ones, you all end up in the same place. You all approach the case with the same sort of analysis and same sort of questions. So no, I think being an advocate, you can learn, by stretching yourself in a lot of different directions. I don't think they're distinct skill sets.

114No, we are very much a cohesive firm. You know, we have lunch together all the time. We're together all the time. Our floors are mixed, so you've got civil and criminal lawyers on different floors, and we will, for young associates in particular, we like to move them around in both areas, particularly if somebody's expressed an interest. We like them to have experience across the board. We are of the view that it makes you a better lawyer to learn skills, and, you know, the difficulty with civil cases is they don't often get to trial, so So we give opportunities to civil lawyers to sit in on trials to see how they work, to understand how you do an examination for discovery.

115You have to learn how to do an examination. And so those are transferable skills. And so we like to see as much of a mix as possible just to give opportunity to, again, develop that basic skill set that we think is critical.

117Yeah, because I had COVID.

119No, we don't have a shtick. I mean, I don't do the recruitment. I'm not on the front lines of recruitment anymore. We have Rose Yanko, the director of professionalism at the firm. She's in charge of all the programs and the front line of the recruitment, and the other partners are as well. But often people will just write and say, I'm interested in your firm, and we will meet with them. What are we looking for? We are looking for people who have a real passion for what they do. We are looking for stars. We really are. We are always looking for people that we think are just not grinding out memos, but have the capacity to be serious litigators.

120We're always looking for that, and we are looking for people who are strong academically as well, because I think that is a value. So, you know, that comes in all shapes and sizes.

122Well, we have two actually, two lawyers that were American trained that are in our firm. Jennifer is a partner, the other is David Postol, who worked in Chicago. And she applied, she was interested in moving to Canada. She was sick of, I think, I don't want to put words in her mouth, but I think she was distressed by what was happening in the United States and felt that Canada had a lot to offer, and it does. And we're so happy to have her. You know, it's interesting to see American-style advocacy, which is, you know, slightly, slightly different. We're conservative in Canada and it's been fun seeing that. But at the end of the day, the, the skill set really is the same.

123A good lawyer anywhere has the same instincts, the same skill set and it's, it's been great having her.

125No, no, it's a little late in my life anyway to expand in the United States. Who knows, maybe the firm will after I'm long gone.

127No, I think they were very lucky to have him. He was extraordinary as If you read the articles about what he did, Dominick Dunne, one of the greatest criminal writers, one of the writers for Vanity Fair, was blown away by the work that Eddie did. So again, proving my point, 'cause I'm always right, that if you are a talented lawyer, it's hard to miss that talent. So I don't think he regretted it and he held his own and then some. He was a star here and he would've been a star in the United States as well.

129They should go into the area that they feel strongest about. Because to get there requires a great deal of work and effort. And the only reason you're prepared to do it is because you believe so profoundly in what you're doing that it's the right choice for you personally, that it's, it's the thing that interests you, that, that feeds your, your mind in particular and your soul. And so that, you know, all of the rough roads— and there are rough roads, as you know, nobody, like, nobody rolls through this smoothly and, as you say, without scars. There's always scars. It's a tough business. It's a very tough business. So at the end of it, you know, you gotta— or in the middle of it, you gotta look up and say, you know what, this is right for me.

130And I remember my mom says 2 weeks into working at Eddie's office, I called her and I said, this is, this is it, this is, I'm in the right place. I, I know that this is where I need to be. And I always felt that way. And so I would like young lawyers to not be afraid to follow their, their interest and their passion. You will succeed in it. We are lucky and fortunate in this business to be to be, you know, well paid at our job. So, that shouldn't be the thing you're worried about. You should be focused on what feeds you and where you think you're going to shine. And we shine, you know, every lawyer has different skill sets.

131So, for some it's litigation, for some it's regulatory, for some it's policy. I mean, I was talking today to somebody and saying, you know, Justice Wilson was not a litigator and she was on the Supreme Court. So many people who ended up on the Supreme Court weren't litigators. So there's a lot of paths in this profession. You got to just find the one that really feeds your, feeds your soul, because otherwise it's a really lousy way to spend, you know, the majority of your life.

133Thank you.