Edward Greenspan’s fine legacy
There will be many things written in glowing memory and recognition of Edward L. Greenspan in the next few days and weeks and months and even years.
There has surely been no more well-known lawyer in Canadian history than Greenspan, who died last week at the age of 70. There is no lawyer I know who has more inspired other people to become lawyers. In the fight he led against the attempt to reestablish the death penalty in Canada he was rivalled only by Henry Morgentaler in his singleminded determination to challenge cruel and unjust laws that would have degraded the very soul of our nation.
I did not first want to become a criminal defence lawyer because of Greenspan, but it was certainly because of his example that I stayed on my chosen path.
One remarkable Sunday morning, I watched him turn a basement full of people who at the beginning of his speech were practically screaming for the return of capital punishment into enthusiastic supporters for its permanent abolition. He was magnificent.
And yet, ironically, once I actually became a criminal defence lawyer Greenspan slipped into relative irrelevance for me. Like him, I was a trial lawyer too consumed with my own cases to keep up with anyone else’s.
It was not until two months ago that I was once again reminded of Greenspan’s commitment to fighting unjust laws and preserving the soul of the nation.
Speaking at a dinner full of judges, Crown attorneys, and his fellow defence lawyers, Greenspan addressed the elephant in the room — in any room of such a gathering since 9-11 — when he said it was time for a constitutional amendment to abolish Section 24(2) of the Charter of Rights and Freedoms.
Section 24(2) allows for the exclusion of evidence in a criminal trial where a charter right has been breached to obtain it. On the other hand, it also allows for a judge to admit the unconstitutionally obtained evidence if he deems it in the best interests of “the administration of justice.”
The section calls for a judge to perform a balancing act between the rights and freedoms of the accused and the need of the community to be able to punish those who have committed serious crimes and whose rights have only been trivially violated.
Greenspan said out loud what so many defence lawyers know to be true: that balance has gotten horribly out of whack in recent years. Evidence is now almost always included, regardless of state misconduct. In fact, pretty much the only route to exclusion today is to prove the police have actually lied on top of breaching a fundamental right.
We seem to be so afraid of one another that we are forgetting the critical importance of our individual liberties to our collective security and to rich and full lives.
The section in question allows for that myopia.
Greenspan was saying the time has come to remove the threat of this imbalance: any finding of a breach of one of our fundamental rights — to be secure in our own homes, to walk about freely, to have the benefit of the advice of counsel upon being detained by the police — ought to result in the exclusion of the evidence.
If the state cannot deploy its might within the boundaries of the constitution, it should not be allowed to deploy it at all.
In calling for the section’s absolute abolition, Greenspan may have been being somewhat facetious. He knew as well as anyone that respect for the charter means having faith that reasonable people will interpret and ap- ply it seriously and not on the basis of trivialities. But what he saw — and what so many of us have seen — was a failure of our justice system to do just that, to treat our charter-enshrined rights with due seriousness. And he could not stand silently by and watch it happen.
It was a typically courageous statement by a man who profoundly understood our bedrock values.
Yes, much will be written about Edward Greenspan.
My bet, though, is that he would have preferred nothing more than to know that what would be written instead would be stirring new judgments affirming the rights and freedoms of his fellow Canadians — judgments won by trial lawyers who are not likely to be as great as he was but who can certainly find all the inspiration they need from his example. Reid Rusonik is a Toronto criminal defence lawyer and managing partner of Rusonik, O’Connor, Robbins, Ross, Gorham & Angelini, LLP.