Memo to an MP: Don’t conflate lawyers with their clients

Last week, Conservative MP Shannon Stubbs posted this on Twitter: “The Prime Minister has appointed Omar Khadr’s lawyer as a federal judge. This is a man who defended a confessed murderer and terrorist. This is an utter embarrassment for Canada and the Canadian judicial system.”

She was referring to the appointment of John Norris as a judge of the Federal Court of Canada. Her remarks weren’t timely, as it turns out. Norris was appointed some six months ago. Her tweet was also woefully misinformed.

Not surprisingly, the Twitterverse had strong words for Stubbs. The reaction was overwhelmingly negative, even from users who identified as conservatives. But she didn’t back down. Instead, she doubled down: “Every Canadian has the right to a defence. Every lawyer has the right to choose who to defend. The Prime Minister is out of touch with Canadians.”

The implications of her view are clear. A defence lawyer who represents an accused terrorist is not worthy of appointment to the bench. Such counsel, it would appear from her tweets, is worthy of nothing more than her contempt.

And the appointment of Norris, according to her, is proof that the PM is “out of touch with Canadians.”

Of course, Stubbs ignored the fact that John Norris is a widely respected lawyer and academic. Nor does she mention that he was appointed as a special advocate under the Harper government, and was granted a top-secret security clearance in order to do that complex and specialized work.

But this isn’t about John Norris. It is about a warped and misinformed view of the criminal justice system. And it is Stubbs’ view, in fact, that is woefully “out of touch” with Canadian values and the bedrock principles of our constitutionally protected rule of law.

One wonders what Stubbs would say about John Adams, a lawyer in 18th-century colonial Massachusetts.

On March 5, 1770, a violent protest turned into a full-fledged riot on the streets of Boston. British soldiers faced the crowd and, ultimately opened fire. Five civilians were killed.

The five soldiers who allegedly fired into the crowd, and their commanding officer, were arrested and charged with murder.

And no Boston lawyer would take the case. Who wanted to represent the soldiers of the tyrant King George? Who wanted to face the wrath of the mob? To chance ostracization, or even the outright threat of violence?

John Adams stepped forward. He represented all six of the accused men.

Adams’ closing address to the jury is the stuff of legend and is a staple of trial advocacy courses across the common law world. He implored the jury to reject the prosecutor’s appeal to emotion and to instead consider the facts, coldly and rationally. There was a reasonable doubt as to the guilt of the accused, he argued, and accordingly they must be found not guilty.

The jury agreed. And the accused killers all went free. The rule of law triumphed over mob rule and the base desire for vengeance.

In Stubbs’ world, this would surely disqualify Adams from holding any high public office. The citizens of Massachusetts saw things differently. He was elected as a delegate to the Continental Congress in 1775, where he was crucial in persuading the delegates to declare independence from Britain.

And in 1797, Adams was elected as the second president of the United States.

Stubbs should also be reminded of another John, this one Canadian. John Diefenbaker, prior to his political career, was a criminal defence lawyer of great renown. He tried over 50 jury trials, including numerous murder cases. Many of his clients were acquitted, but some were convicted. One of his clients, Alex Wysochan, was hanged for his crimes.

Of course, Diefenbaker would ultimately be best known for serving as the 13th prime minister of Canada, from 1957 to 1963.

Was he “out of touch with Canadians,” as Stubbs would put it, for resolutely defending individuals charged with criminal offences? Voters didn’t seem to think so. Nor did the Progressive Conservative party that he led for 10 years.

Perhaps Stubbs is unaware that lawyers in Ontario swear an oath, not to “refuse causes of complaint reasonably founded.” This is in the highest tradition of the British barrister, where this ideal is actually enshrined as a rule of practice known as the “cab-rank rule” — the obligation of counsel to accept work in their practice area, regardless of the client’s character, reputation or alleged offence.

John Adams, John Diefenbaker and John Norris. They all have one thing in common — aside from their first names. They firmly believed in the right of every accused person to a robust and competent defence. That, no matter how the heinous the allegation, or unpopular the person, our system of justice withers when the state is not firmly put to its burden of proof.

As a society, our liberty depends on holding the government to account, particularly where the state seeks to take the freedom — or in the case of Adams’ and Diefenbaker’s clients, the life — of any person.

Their devotion to their clients — accused murderers or otherwise — exemplify the highest tradition of the bar. It is firmly in keeping with longcherished Canadian values.

What is antithetical to our values is to conflate counsel with client. To assume, as Stubbs does, that defence counsel’s “choice” of clients somehow reflects on their own personal morality or fitness for judicial appointment.

Nothing could be further from the truth. Just ask Adams, Diefenbaker — or even Norris.

THE RULE OF LAW TRIUMPHED OVER MOB RULE.