Canadian Lawyer

16 F E B R U A R Y 2 0 1 9 w w w . c a n a d i a n l a w y e r m a g . c o m D o lawyers have an ethical obligation to represent the unpopular? This was the topic for the Toronto Lawyers Association 8th Annual Current Topics in Ethics & Professionalism program last year. It's one of those questions that come up all the time. Most think they know the answer — lawyers should represent the unpopular, that's part of their job — but some people have nagging doubts. At the TLA program the problem was discussed by a savvy panel — lawyers Saron Gebresellassi, Danielle Robitaille and Carol Hansell, and public rela- tions guru Jaime Watt, chairman of Navigator Ltd., a crisis communications firm (I chaired the discussion). I think there are two principal reasons (which sometimes overlap) why a lawyer should represent the unpopular or odious client. First, the justice T R O U B L E D W O R L D DEFENDING THE DESPISED By Philip Slayton While lawyers can suffer consequences for representing odious clients, ethical obligations may require it system entitles every person to representa- tion (most need it desperately) and a lawyer has a professional obligation to provide that representation if called upon to do so. Second, there are fundamental principles in our legal and political system — freedom of expression, for example, or freedom of assembly — that a lawyer must defend if need be, and in doing so they may end up representing someone whose beliefs or actions they abhor. But there also are powerful reasons not to represent an unpopular or odious client. First, it might be a violation of a lawyer's core beliefs, damaging to his or her personal identity. Second, there may be legitimate fears for the physical safety and psychological well-being of the lawyer and their family. Third, repre- senting an unpopular or odious client may make the lawyer highly unpopular profession- ally, politically and socially, threatening their career or standing in the community. How can these competing considerations be resolved? The reasons to represent the unpopular and odious are reasons of belief and principle. The reasons not to do so are personal. In my view, belief and principle should trump personal considerations. There are well-known Canadian examples of law- yers who reluctantly represented odious cli- ents at considerable cost to themselves. Rob- ert Shantz was Clifford Olson's lawyer. Olson pleaded guilty in 1982 to the murder of 11 children in British Columbia. Shantz has said that his representation of Olson and the pub- lic opprobrium he suffered as a result affected his health and damaged his familial and personal relationships. (Shantz died in 2015.) Peter Ritchie defended Robert Pickton, the B.C. pig farmer convicted in 2007 of murder- ing six women. Ritchie has said, "Sometimes lawyers have to defend highly unpleasant cases, but it's not because they want to do those sorts of cases." When he was represent- ing Pickton his office was flooded with hate calls. Toronto criminal defence lawyer John Rosen stepped forward in 1994 to represent Paul Bernardo. Most legal observers give Rosen full credit for doing so, and he finished the case with his reputation enhanced. Sometimes the cases may be less horrible, but the consequences for the lawyers are still unpleasant. In February 2018, Gerald Stanley was acquitted by a Saskatchewan jury in the shooting death of Coulten Boushie, an Indig- enous youth. The trial and its outcome were widely criticized. Shortly afterwards, Stanley's O P I N I O N DUSHAN MILIC @philipslayton

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