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| Kyla Lee |
Over the course of my career, many Crown lawyers have told me that they find the information useful and helpful in making their decisions about how to proceed with the file. But an equal number of Crown counsel have informed me that they are unmoved by a person’s sad backstory.
The different approaches are not bad. An important tenet of our justice system is that Crown counsel are given prosecutorial discretion and permitted to resolve files in a way that they feel is appropriate, subject of course to Crown counsel policies and the law. Crown counsel need to feel empowered to resolve their files in a manner that they see fit.
At the same time, I cannot help but wonder why the divide exists.
As someone who has been through some stuff, I find it a lot easier to relate to the situations that lead to my clients’ underlying conduct. I wasn’t always a cool lawyer, writing for publications like The Lawyer’s Daily. I was once living paycheque to paycheque, finding creative ways to avoid paying for textbooks and wondering whether I would make rent. Growing up, I experienced bullying. I have been open about my struggle with an eating disorder, which has given me insight into the role that mental health can play in self-destructive behaviour.
All of these lived experiences — and others — have given me a perspective that helps me to understand and appreciate where my clients are coming from.
My colleagues in the defence bar have similar backstories. Ask any defence lawyer, and they will tell you that the defence bar is made up of misfits and law school flunkies. And ask any of them what they had to overcome to get where they are, and each will tell you a story of resilience that will amaze you. Defence lawyers are people who have not just overcome hardship, but who continue to overcome it with awful legal aid rates, inadequate workspace in courthouses and the constant scorn of those who are uneducated in the functioning of our justice system.
Now, I cannot say whether or not prosecutors who fall on either side of the personal circumstances issue have also faced hardship, but I do think having faced hardship provides a person with insight to know how and why hardship can impact upon the decisions made by people who are ultimately accused of crimes.
This is not to say that all prosecutors have never faced hardship or overcome adversity. Nor does it mean that all defence counsel are heroes of the working class. There are Crown counsel who face adversity on a day-to-day basis because they are people of colour, or Indigenous or Black. Or who have overcome poverty to get to where they are. Similarly, there are defence lawyers who have independent sources of wealth, and who have not struggled because of immutable characteristics that make them different from others.
But at the same time, when the job is being done, the struggles are different. Defence lawyers have to earn clients and their trust, face financial struggles based on an underfunded legal aid system and have all the struggles of running a business alongside running a practice. Crown counsel have a salary, paid vacation, benefits and job security.
In the legal profession, we see people from all walks of life become lawyers. But a significant number of lawyers are people who come from positions of great privilege. Law school is prohibitively expensive, as are the minimum three years toward a bachelor’s degree required to apply. Bar admission, insurance and practice fees, and the cost of legal training programs like B.C.’s Professional Legal Training Course serve as additional barriers to entry.
It is no secret that there are many people in this profession who never struggled to make ends meet, who never had to worry about paying for anything, and who have faced far less significant hardship than those who have overcome poverty, addiction, mental health issues or live the experiences that racialized, Indigenous or Black lawyers have lived.
Of course, financial stability does not automatically equate to a life without struggle, but financial stability, whiteness and access to family resources necessarily makes things a lot easier. And that’s where the gap between Crown and defence becomes wider. The certainty of a salary, no matter what, eliminates the worry about whether your billings next month will cover your office rent.
Which is why I am of the opinion that a new criteria should be added to the job requirements for anyone seeking to become Crown counsel: perspective. The perspective brought on from having to face and overcome hardships in your life. The perspective gained from experiencing setbacks and having to work to advance beyond them.
This isn’t an onerous requirement. But before being given the job of taking away a person’s freedom, of locking humans in cages and of making decisions about whether to prosecute or seek a lengthy sentence against a person based on their actions on their worst day, at their lowest point, a prosecutor should first have to demonstrate that they have been at a low and learned something from it.
If that perspective leads the prosecutor to not have sympathy for another’s personal circumstances, then so be it. But at least the Crown counsel will be someone who can understand, on some level, what it’s like to be in that place.
Kyla Lee is a criminal lawyer and partner at Acumen Law Corporation in Vancouver. Her practice focuses on impaired driving. She is the host of a podcast, Driving Law, and a weekly video series Cases That Should Have Gone to the Supreme Court of Canada, But Didn’t! She is called to the bar in Yukon and British Columbia. Follow her at @IRPLawyer.
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