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Mansplaining to the Honourable Jody Wilson-Raybould | Robert Harvie

Thursday, April 18, 2019 @ 1:56 PM | By Robert Harvie


Robert Harvie %>
Robert Harvie
Brian Greenspan recently published an article in The Globe and Mail, being rather critical of our former justice minister, “Did Jody Wilson-Raybould understand her role as attorney general?”

In his article, he suggests, rather strongly, that the concerns raised by Ms. Wilson-Raybould, and her supporters, reflect a “fundamental misunderstanding of the responsibilities of key participants in our justice system.” In his article he writes that to question the appropriateness of outside influences on prosecutorial discretion exhibits a serious misunderstanding about how “justice” works.

Perhaps. Or, perhaps Mr. Greenspan’s article is a bit of “mansplaining.”

To be sure, Mr. Greenspan is a criminal lawyer par-excellence — and to suggest that I — or anyone in Canada perhaps — would have a better understanding of the criminal justice system than Brian Greenspan would be questionable.

However.

I would be so bold, as someone who is only a family lawyer, to suggest he has perhaps glossed over the issue a bit.  And, in my opinion, as a lawyer who has spent some time working to improve access to justice and fairness in our legal system, the larger truth is too important to ignore or dismiss.

And this is the thing about that.

Mr. Greenspan is completely correct. Prosecutors cannot live in a bubble, devoid of contact or influence by the world around them — including very direct influence by the actors involved.  As Mr. Greenspan writes, “isolation breeds tyranny” and advocacy — the testing of the Crown regarding their perspective on a prosecution — is healthy and fundamentally important to assure full consideration by the Crown of all factors to be considered as they engage their duties.

But. And here’s the big “but.”

When our jails are populated by people without the means to hire someone like Brian Greenspan to assure that the Crown is challenged appropriately — particularly for example, by Indigenous people in grossly disproportionate numbers — there is a fundamental concern about the efficacy of the Rule of Law.  About the reality of the theory that “all people are equal before the law.”

And it’s a growing and legitimate concern that Mr. Greenspan, with all respect, ignores completely.

It might be reasonable to ask yourself, for example, what are the odds than an impoverished Indigenous person charged with a criminal offence in this country would have the pull to cause the prime minister himself lean on the minister of justice to, in turn, to lean on the prosecution to “cut him a break.”

Or, to use Mr. Greenspan’s example, what are the odds that that same individual might be able to hire Brian Greenspan himself to meet with the attorney general to consider his case?

Zero to none are those odds.

And, perhaps, Ms. Wilson-Raybould — being a woman and an Indigenous person – was somewhat sensitive to this reality.

So. It might do for some old white guys in our profession like Mr. Greenspan and myself to consider that perspective with a little more charity.

With the greatest of respect to Mr. Greenspan, he ignores, completely the growing sense of frustration of many Canadians that there often appears to be two sets of laws in this country — one for people with deep pockets or friends in high places (usually both), and one for everyone else.

Did Prime Minister Trudeau “lean” on Ms. Wilson-Raybould, or did he simply provide “perspective”? Who knows?

But the questions raised in this case are legitimate and undeniable.

Or maybe, like our former attorney general, I just don’t understand.

Robert Harvie is a family lawyer, mediator and arbitrator with Harvie denBok Pollock Family Law and Business Law and advisory board member for the National Self-Represented Litigants Project and past Law Society of Alberta bencher. E-mail him at rgh@hdplaw.ca.

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