The Moot Times UCalgary Law
I Fight for Murderers and Pedophiles, and This is Why
Updated: Nov 8, 2021
Guest Contribution from Gilliana Shiskin
How can I defend him/her/them (“the bad guys”)? I am often asked this question. I understand and expect it from people outside of the legal community; however, I am surprised that it more often comes from law students and other lawyers. And their question is asked sincerely.
Let me dispel the common myths quickly. I definitely do not do this for the money. I am not defending the OJ Simpsons, Jian Ghomeshis or Brock Turners of the world. Representing Legal Aid clients never made anyone rich. Defending clients who at their most notorious may receive brief mention on the local news is unlikely to make my firm famous. Even if it did, the fame generated is more like notoriety which materializes in the form of public outrage, death threats, and commentary on how the defence lawyer is equally morally culpable for acts as the clients they defend. No, I am not doing this for fame and fortune. I do this despite the promise of a poor fortune, and I try to avoid this kind of fame. I defend “the (alleged) bad guys” because they are most in need of defence. The clients criminal defence lawyers serve are frequently those whose stories have not been understood, whose rights are most vulnerable, and whose jeopardy is the highest. Oftentimes they are disadvantaged financially, socially, mentally, physically, and/or educationally. They tend to have the least understanding of the law, the least power and resources to fight their case, and the most to lose. By virtue of their roles in the system, they deserve access to these things. Ideally, I can sincerely advocate for both the person and principles in my cases. If not both, then one of the two. In almost all the cases I see, the tragic events are not limited to the impact on the victims, their family and friends. There are almost always tragedies stacked up against the accused – from their youth, and even from their preceding generations. Systemic inequalities in our society often result in my client’s entanglements with the criminal justice system. The accused’s background circumstances are not an excuse, but they are deserving of consideration as mitigating factors. And not merely mitigating at sentencing, but worthy of appreciation of an accused as a person throughout their involvement in the justice system.
I have defended individuals accused of murder and other violent crimes at trial, and fought conviction and sentence appeals of persons convicted of those offences. I find it consistently humbling to realize how easy it is to end up in the wrong situation at the wrong time, or to make a seemingly minor bad decision and have the rest of one’s life drastically changed in a moment. “Victims” and “accuseds” emerge from events involving human blunders made while intoxicated, or arguments that escalate unexpectedly to deadly consequences. It is simplistic and unhelpful to frame horrible events into a dichotomy of good guys and bad guys. There are no good and bad guys.
Or, sometimes public consensus is that criminal defence lawyers are the actual bad guys. Criminal defence lawyers use technicalities to let “criminals” back on the streets. Yet these technicalities derive from our most important human and civil rights values: the rule of law, the presumption of innocence, Charter rights, the rules of evidence and the rules of court procedure. Deciding when, or for whom, these principles should be upheld undermines the values themselves. When it is obvious someone is guilty or not, these principles are unnecessary. The rules are only needed when courts need to make difficult decisions. These rules most need to be upheld when it is hard to do so. Determining that crucial Crown evidence is inadmissible because it was unlawfully discovered or quashing a conviction because upon review the length of the trial proceedings was too long, or even having the court admit that they think the defend-ant committed the offence, but they must acquit because there remains a reasonable doubt – these are difficult decisions to accept at a surface level. Fighting to uphold these values and principles, in these types of situations, maintains the justice system’s consistency and integrity for everyone. It is a slippery slope to limit for whom the law’s protections should apply, and for whom exceptions should be made. This is an especially dangerous practice when that decision is founded on a mere headline, or sound bite understanding of the facts of the case, and the evidence before the court.
In a recent case, I appealed the sentencing decision issued to a man convicted of pedophiliac offences. He had been sentenced to indeterminate incarceration as a Designated Dangerous Offender (DDO). He had dated convictions from decades ago for sexual interference. As a young man he had befriended and then fellated and touched young boys.
During my client’s childhood and teenage years he himself had been horribly abused by trusted family members and a teacher. He received intensive treatment while in custody and after his release, there were no allegations of inappropriate sexual contact with any children for more than 20 years. Then, a few years ago he reoffended by touching a young boy. He admitted to his behaviour. He pled guilty and in turn was sentenced to indefinite incarceration as a DDO.
“I do this work proudly, because fighting for human and civil rights, when it is the most difficult, will hopefully ensure the maintenance of those values for you and me, too.”
A DDO is subject to indefinite incarceration without a statutory release date. In this case, a man who had been terribly sexually abused through his formative years, in his early adulthood then committed sexual offences against 5 boys. These offences occurred within a 7-year span. He received years of intensive treatment, deemed the best treatment for pedophilia in Canada. He did not commit another sexual assault for 22 years. This man is now in his 60s. Now, with his appeal being dismissed, he will almost certainly spend the rest of his life incarcerated. In Canada, DDOs have less than a 5% chance of ever being granted parole. In essence, he is being held in preventative custody. This has been repeatedly challenged as unconstitutional but upheld, as this legislation is purportedly designed to only capture the smallest circles of the most dangerous and prolific offenders – the “worst of the worst.” I would like to pause on this point, because the threshold for this designation is not clear in jurisprudence.
Those sentenced as a DDO are individuals for which the public finds the least sympathy. Little pity or attention is given to inmates in this situation. Yet, on principle, should these designations not require the most careful scrutiny and critical evaluation? If this man had killed the boy instead of touching him, and been found guilty of 1st degree murder, he would have been eligible for parole in 25 years. He would be in his late 80s when released, but there would have been a release date. He would have had hope, and something to which he could look forward.
It is sometimes difficult to reconcile incongruous juxtapositions such as this. In other cases, it can be troubling to see defendants, or convicted individuals, go free because of a “technicality.” But these aren’t merely “defendants” and “convicts;” they are individuals who all-too-often have heartbreaking life stories, which, when understood, militate one’s view of their culpability. These are not just “technicalities” of which we complain, which will sometimes allow one who would otherwise be found guilty to escape punishment. These “technicalities” are children of the same family of rules we trust to protect ourselves, such as limits on police invasions of our privacy, state interference with our property, unlawful detention, and wrongful convictions.
I defend murderers and pedophiles. I do this work proudly, because fighting for human and civil rights when it is the most difficult, will hopefully ensure the maintenance of those values for you and me, too. I am honoured to do this work because these are people on whom the greatest risk of injustice falls, and who are often the least able to fight for their rights themselves.