Words From a Defence Lawyer

Everyone deserves a good defence. Stephanie Heyens is a defence lawyer with over 25 years of practice. In this episode we will discuss how defence lawyers need to keep themselves safe when representing clients with Cluster B personality disorders, changes with Courts moving to video hearings, self defence laws and other interesting topics.

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• 10:21 (Cont.) Words From a Defence Lawyer

Transcript

[00:00] Russell: Hey, everyone. Just before this episode starts, I just wanted to say that there was a little bit of audio distortion on my end when this episode was being recorded. Unfortunately, I couldn't hear it during the audio sound check. And it was only later on when I went to download the recording and to start processing it for this episode that I could hear the distortion. My guest, fantastic guest for this episode, her audio was fine. Unfortunately, I did do the best I could to clean it up, but it is a little bit distorted. So just before you go into it, I just wanted to let you know just that there was unfortunately a little bit distortion with the audio. I've since replaced the audio cord with a different one, so hopefully I don't experience this again in the future.

[00:55] Russell: All right, folks, and we're back. Russell here from the canadian conservative podcast. And today, my guest is Stephanie Hayens, and she is a lawyer from Ontario. She's been a lawyer for over 25 years, practicing in defense law. And on the show today, we're going to talk a little bit about how lawyers should approach clients that have cluster b personality disorders. We're going to talk a little bit about the change to video court proceedings, and we're also going to talk a bit about self defenses. That seems to be a bit of a hot topic right now in Canada. So welcome to the show, Stephanie.

[01:34] Stephanie: Well, thank you for having me. It's a pleasure.

[01:36] Russell: Before we get started, do you want to just give a brief introduction, let everyone know a bit about yourself and a bit about the law that you practice?

[01:44] Stephanie: Sure. I was born and raised in a small town on a farm for a bit, and then moved to the big city, Toronto, like everybody does if you're from down where I come from. And I wanted to be rich and famous. And then I discovered that this thing called the entertainment law existed, and I ended up doing a little bit of that. But I went to court one day for someone who said, no, you should be doing this stuff because it's more important and it's more interesting. And I adored the idea of being on stage and being able to represent people every day. And so I got to do the important stuff. And so since 1997, I have been a criminal defense lawyer. I worked at legal aid. I was duty counsel and then had my own practice for 15 years and went back to legal aid for a while. And now I'm back in private practice, thankfully, and working on a very long Giro Foley factum right now, working hard and enjoying the client contact again.

[02:43] Russell: Is it different legal aid in private practice?

[02:46] Stephanie: Infinitely different. It's like the difference between being a public defender and running your own business. So you have a lot more free, useless to say when you're not regulated by a boss. Have to punch a car.

[02:58] Russell: So, you know, just talking briefly about legal aid, quite often we'll hear criminals. You know, they'll say, you know, my lawyer from legal aid failed me. They colluded with the judge. They colluded with the crown and that. So, you know, some of that might be tied a bit in with cluster B personality disorder and that and avoidance and, you know, just not accept, you know, lack of acceptance and that. But where do you think that comes from? Is it ignorance of the law? Where do you think that comes from?

[03:29] Stephanie: I think that it comes primarily from an inability to take responsibility. Frankly, I do think it arises out of sort of cluster B personality disorders, because when I first started, frankly, I wanted to believe it. I was the one that was willing to listen to anything. And it didn't take me long to realize that, frankly, no lawyer or judge is going to risk their career because that stuff leaks. I mean, it may be, you know, it's going to risk their career overdose, you know, a plea to a time served for a domestic assault. The reality is that I understand why people wonder about it because, I mean, I walk into court now, and everybody knows me, so it feels like, you know, you're friends with the crown, so you're going to try and do things to make the crown like you, and it's actually the absolute opposite. After you've been working in the system for a long time, you get their respect so that you don't have to work as hard. I've walked into court and had crown attorneys, for instance, walk up and say, oh, it's you. Well, I was going to run a bail hearing, but what do you want for conditions? As I'm, you know, I'm. They know that it's likely all women. It's not worth the fight. So it's actually quite the converse.

[04:44] Russell: Yeah, I saw. What was that show better call Saul? And in it, he kind of. He's having a lot of issues, and he kind of develops a rapport with one of the other lawyers, and then I. They end up. They kind of settle something without having it to, you know, go to trial or anything like that. They settled on it. And does that happen quite a bit?

[05:05] Stephanie: Oh, it has to. Otherwise we'd be backlogged. 95% of cases are withdrawn or are resolved. Only 5% go to trial. That is a stat. Stat that's been consistent since I've started. And they want to make it higher. They want more resolutions, of course, because, well, they just need space, the courtroom space, frankly. But it's always the way it's been. And frankly, about. I don't even know the numbers off the top of my head. I don't think I've looked at them recently, but about half of them are withdrawals. Not just outright withdrawals. Most withdrawals aren't exchanged, you know, paying a fine or just paying back to being. It sounds like, and it's quite the contrary, it's guy's first offense, or it's a fairly minor case, or both. Or there's a mental illness issue, like a real schizophrenia mental illness, and they stole food out of the grocery store. Those. There's tons of those kinds of cases that, of course, nobody ever hears about. They're all drawn, but with person doing something to earn it.

[06:07] Russell: So when. So when you have someone that's cluster b personality disorder, antisocial personality disorder, histrionic, narcissistic, and that. How do you think that lawyers should approach those types of clients, given that their illness can be very detrimental to people around them? Not just. Not just their, you know, loved ones, not just people, you know, in the community, but even the people that are trying to help them?

[06:36] Stephanie: Yeah, no, it's. I actually think this is a bigger issue than has been acknowledged. The way I first started thinking about it is because jurors can, at least in Ontario, can now get compensation if they are in a trial that forces them to view very graphic, horrific stuff, and they get therapy, but the crown and the defense lawyer don't. And it got me thinking about the fact that every day, our job is to not just talk to people with mental health issues or with difficulties or undiagnosed issues that they don't know themselves. Our job isn't just to talk to them. Our job is to figure out how to help them explain themselves, often to a crown or a judge. And that requires a level of relationship that some of these folks rarely have. And it took me a long time to realize that the mental health issues not only make my job more difficult, but really do affect you, especially as a young lawyer. And I watch lawyers burnout, and I watch lawyers, literally, I watch them every five years. If you don't find a coping mechanism for sort of where most lawyers are every five years, like, it's sort of a. You know, it's like any growth, you know, structure, it's sort of. There's. I see a system almost, and I watch people burn out. And the key is to, first of all, separate yourself and acknowledge that these folks aren't you, and you're not going to make them like you, and you're not going to fix them, and you're going to see them again. You know, that's hard. Lots of people that get into it. I mean, a lot of people get into lawyering and criminal defense, especially because it's like being in a helping profession. You know, it's social work, but better. It's nursing. Not nursing, but it's therapy, but not as, you know, full of tears and emotions. So it feels like you're able to help people in this very constructive way, but in reality, you end up getting cried out a lot. You end up having these people push back on you for things you don't even understand why. You end up having them stomp out or not respond to your calls or try and manipulate you into doing things that you know aren't ethical. That gets really dangerous and scary. So it's very important at first just to step back and recognize, okay, this. This person, who is he? What are their, you know, what are they doing? And even if you're not sure why, but at least to recognize that and step back, that's always the first thing, is not to get, because that's what most personality disorders trying to get you into their world so that you get as excited, right, and it's histrionic or as depressed or as whatever it is, as consumed or OCD about their issue as they are. So you have to separate yourself. But the irony is that to be effective managing them, you have to mirror. You have to be able to mirror enough that they feel like they've connected with you. And you can do that, you're probably going to be okay.

[09:32] Russell: Yeah. With cluster B personality disorders, the big difference between schizophrenic and someone that's borderline is someone schizophrenic. Oftentimes, if you give them lithium and some outpatient treatment, they can have a recovery and they can live a normal life or close to normal with some supports in the community. Someone with cluster B personality disorder, there is no fixing it. Studies have shown that in some cases, trying to do things like cognitive behavioral therapy, and that may actually make them worse because they learn how to. How to manipulate people's emotions even more. So as a defense lawyer, when someone doesn't have an official diagnosis, but after a while working there, can you kind of, without diagnosing them, can you kind of think, okay, this is going to be this type of client, and I'm going to have to put these type of boundaries in place and these sort of things to keep myself safe.

[10:32] Stephanie: I mean, you can't tell them that, but absolutely you should do that. Absolutely. I think it's part of our survival.

[10:38] Russell: And with, you know, with the cluster B personality disorder, do you find that because some court cases require them to undergo like a psychiatric evaluation and things like that, do you find that they are receptive when they're told this, or are they generally not receptive?

[10:57] Stephanie: So this hits on a bit of a myth. This is criminal court. It's not therapy court, as I tell people, it's not psychiatric psychiatry court. The only time that a criminal court will order a psych assessment is if you are unfit. They want to find out why you're unfit and push you through the system to determine whether you should be found not criminally responsible. The great bugaboo in Canada, or what do they call it in the states? Insane, innocent by insanity or whatever. So that's our version. But you're not going to get the state to pay for the psychos evaluation of whether you have cluster B personality disorder. You're just not. You're going to have to convince them that you are unfit, and that will not convince them, but the court or the crown or the defense lawyer can raise it and say, look, we need him be assessed. We think that he didn't know what he was doing at the time. That's the layman way of looking at it. He literally didn't know that. When he was stabbing his mother, he thought he was stabbing a dog. He thought he was, you know, whatever. You're literally in delusional state. That's what you have to be pitching in order to get the state to pay for a psych assessment. So it's. If you want mitigation for sentencing, you go to their doctor. They say to their doctor, can you refer them to a psych? Or maybe you plug them into a psych at CAMH down here in Toronto and see if there's a social service that'll. There's a few places, put it that way. It's a bit of a hunt on your defense counsel, because the reality is that if you have a diagnosis, judges will latch onto it as a reason to mitigate. And sometimes it's appropriate, right? Sometimes, arguably it's not. But the reality is that psych assessments at the level you're talking are a big deal. They're expensive and they're only issued for, you know, if someone's claiming that they were NCR or unfit. Presenting is unfit.

[12:51] Russell: What about something like a dangerous offender hearing, let's say? Would a psych assessment kind of be mandatory for something like that?

[13:01] Stephanie: So because one of the threshold tests, one of the criteria is whether or not they're going to reoffend. Right. What's the likelihood of reoffending is the big deal. And so there's a raft of testing that's done for psychopathy, basically. I mean, I'm being very broad here, so, you know, I don't need doctor Gojer calling me up and yelling at psychs. But the general gist of it is, yeah, they just want to know whether the, what the propensity is, is it? And so there's literally, like most psych, I actually find this stuff fascinating because once you start playing with dangerous offenders, so to speak, you get into this area of psychology that's not just fit or unfit or whatever, you're getting into propensity. And all these different tests about psychopathy and the way that, and literally the psychologists do the testing, there's all these standard tests like the PCR and different, I can't remember them all, but there's a bunch of them, a raft of them that they'll run in addition to a cognitive test, and they'll also do a, are they, you know, lying test, and then they'll do like three, four tests that are almost multiple choices. And then they just, and then on, and then they include the recidivism, like their criminal record, their recidivism rate, that sort of thing. And then they literally just crunch numbers. And what I find most fascinating about that is that there's two after the testing is done. So you get your paper, a psychiatrist, and you get your psychologist test papers on your guide, and you get to evaluate them and decide, well, I've talked to the guy. This is what he says his background is. This is my clinical know, evaluation of his situation and stuff. And I don't think it's as bad as all that. So I'm going to give him a lower score and try and tell the judge not to make him a do and to make him an LSO instead of long term FTR, give him a long term offender status. That's what you're usually pitching for as defense counsel. Okay. That just to finish doing it just by the paperwork is more accurate than the clinical evaluation. In other words, humans are still too nice.

[15:02] Russell: Well, I think too, like, isn't that kind of what they get? Paint the big bucks for. Or else they would just have someone that they would just hire to crunch numbers.

[15:11] Stephanie: Yeah, I mean, I think that the reality is that somebody's got to do the evaluation like a bunch of papers is just a bunch of papers, so somebody's got to interpret it. Okay, so that's number one. The issue is the clinical opinion going into it and whether you know how to manage that.

[15:27] Russell: So for. So for the defense, could a psychologist, previous assessments that they did on other clients be utilized? Like, in the context of, if an assessment was deemed not to have been done properly in another client, could that be utilized to say, this should be relooked at again?

[15:48] Stephanie: Absolutely. I mean, one of the things that we do that defense counsel can do is cross examine any potential expert witness and try and prove that they shouldn't be considered an expert for this case. Perhaps, maybe that for this offense, that you can try and differentiate and say, well, he's great for domestics, but he's no good for drugs. Right. It's just too different. Or as you say, here's an error you made. So that's usually what a lot of us do, is try and go through the actual testing or whatever and look for an, you know, approval error or something on paper you can throw at the judge and go, they screwed up. But the trouble is, of course, one error. Why everybody does that.

[16:24] Russell: Got to be pretty serious, you know, with, with the testing, too. Has any defense lawyers ever challenged the authenticity of the test? Like, let's use, for example, the static 99 r. Has anyone ever decided, well, the static 99 r, actually, you know, it only provides a generic thing, so it shouldn't be used. Shouldn't be used in the court system or something like that.

[16:49] Stephanie: No, not to my knowledge. The reality is that we all sort of get trapped by those expert opinions. And you've seen the results of that all over the place, whether it's shaken babies up in Ravenhurst, here in Ontario or so. Experts, we're very deferential in Canada. There's more. I mean, and that's fingerprints, right? Fingerprints are less relied upon in other jurisdictions. They're not hearing more. But because of England footprints, all kinds of different evidence that was considered hair fibers. I mean, you seem more knowledgeable, so you may be aware of just how much expert stuff was actually garbage. No, but not so far that stuff.

[17:33] Russell: No. I think one of the big misconceptions that people have in Canada, because we are very heavily influenced by the United States, is that once you request a lawyer, the cops can't talk to you. Anymore. And that's a big myth, isn't it?

[17:49] Stephanie: Oh, my God. I shouldn't laugh. I just, I've heard it for so many years that. So, yes, we don't have Miranda rights. This is Canada. And that's always the, where I start. Stop watching law and order. But, yes, we're actually doing better in Canada when it comes to a little bit of that. Because when I started, they could, the police had to. You have to tell you why you're arrested. Ten a of the charter right. They have to tell you, you have the right to counsel of choice. That's the informational side of your ten B charter rights. And then they actually have to give you a lawyer of some sort. So that's the implementation duty. The things they have to say to you are a little bit different, but they're roughly the same. You know, this is what you're arrested for. You have the right to a lawyer, and you don't have to talk to us if you don't want to, roughly speaking. But they can talk at you all you want, unless you say you want counsel. And then they're supposed to hold off, thanks to a case called prosper, until you've talked into a lawyer. So that gets kind of messed up if they can't get a hold of the lawyer of choice and they try and give you duty counsel instead, or even duty counsel's not available and impaired over 80 cases where they don't want to wait forever. Right. And they just want to blow the dust and be done, go home, create interesting situations. But. But now they have to hold off things, prosper. And that wasn't the case my case started.

[19:14] Russell: Why do people talk to the police like I like? I know it's a silly question to.

[19:20] Stephanie: Ask, but it's actually a really good question. And actually, I wish that more people did talk about it. So from my experience, maybe it's because I'm a female, but I've had a lot of people look at the clients, sorry, look at me and say, but the police officer told me, blah, blah, blah, blah, blah. And I would just look at them and go, so take advice from the guy who puts you in cuffs rather than the Lord. That's cool. But it happens all the time. And I think, actually, I used to get offended. I used to think it was sexist or. I don't know. And then I realized that really, it's more about hope springing eternal. And you will grab, when you're in desperate straight, you'll grab on to anything in hopes it'll help you float. Doesn't matter if you're, you know, going over Niagara Falls or you're in the back of a cop car. So you will grab onto any which, and the cops know it and they can use it. And I tell people all the time, not only are they allowed to lie to you to get information from you, not only are they allowed to do that, they are trained how to do so to get what they want from you. So the classic thing I say to people is they'll tell you. The cop will tell you, this is your opportunity. You're on. There's a video room. You can come and tell us your side of the story. This is your one opportunity. No, it's not your one opportunity. And you can do it tomorrow with me on a video at the end of the call. You can do it in a month. It's not your only opportunity. The reason that people think it is is because they're hoping that if they think they can talk their way out of trouble like they did with mom, that's honestly what I think is going on.

[20:50] Russell: Well, and the cops, too, you know. You know, I think there's an element to it, and I know it's more philosophical than anything. People don't like to keep secrets. People don't, people don't like to keep things to themselves when, especially when it's knowledge that has some type of impact on them. So, I mean, if, if, you know, you stomp someone's head in, let's say, and you probably don't want to tell the police you did that, but there's a part of you that wants to tell people because it's an experience, and it's probably a very traumatic experience or a very heightened experience. And so I think that there's part of the idea of, and I don't like to use, like, a religious sense, but this idea of confession. Right. You know, like I'm saying it now, it's no longer something that bothers me. It's just a story now.

[21:41] Stephanie: So I do see that. But later, I don't see that the day of the arrest or the week after the arrest. I see that in more serious cases when somebody says, look, I just want to resolve. And I'm like, you know, I can win this thing. And I've had guys say, I don't care, I want a result because they don't want to put the person through it. They genuinely have remorse. And that's, you know, that's not the typical client. Most of you know, as we've alluded to so many of our clients have personality disorders. Right. So when you get a guy like that, and I'm afraid it's mostly guys. So I'm going to refer to use the male pronouns more than perhaps some might like. But I don't disagree with you. That certainly is an element of it. But generally speaking, I see it later when people are settled.

[22:24] Russell: Yeah. I've always kind of just thought to myself, you know, and I'm not anti cop. I believe we need police to keep society, you know, running because especially these days, you know, there's all, there's a bit of a crime wave. I know some people don't think there is, but, you know, Saskatoon just had their 11th murder last week, and it was a 66 year old man walking to the store in the morning. And they don't know you. They have no suspects or anything. And, and he was found by schoolchildren, from what I understand, you know, he was just doing his morning walk. And this 11th murder seems like it was a random attack. He was a cancer survivor, well liked individual in the community. And, and then I was just looking at Twitter earlier, and the police just had an armed confrontation with someone and had to shoot someone earlier on today. And so they, you know, it's, Saskatoon is having a lot of issues right now, and so we do need the police. But it, you know, within the context of, you know, like, looking over at Covid and stuff like that, like, you know, police like, doing their checks and stuff like that, I'm like, why are people even, you know, why are you even talking to the police? Why are you even answering the door? I just, I don't get it.

[23:41] Stephanie: Yeah, as I say, I mean, we're raised, right? We're raised to run to the police when we're little children. If there's a problem, you know, I mean, I had to do it with my kids, like, least because it was very, you know, because they knew I wasn't the biggest fan, shall we say, of the authorities. And I had to teach my little kids, like, if you get lost somewhere and you see an officer, they're good with kids. That was sort of how I differentiated. The reality is that there's good, like any profession, there's good cops, there's bad cops. And we are having a lot of problems because the kind of crime that you generally see in what we call nowadays vulnerable communities, right, people that have mental illness, lots of poverty, living in the, you know, in, in welfare, in areas that are not well kept. The reality is there's lots of crime there because people are being exploited by the strongest dog. That's just the reality of living in those neighborhoods where there's not a strong police presence because there can't be. Whether it's because, you know, you don't want them there because they feel oppressive, you know, in the community and, or whether, anyway, there's lots of arguments about why that's the case, because that's why we don't card anymore. That's why we don't police certain areas. The same opposed to police do all the same. Now supposed to pick on certain areas that are Democrat with different democrats. Graphics but when that crime leaks into the middle class world, that's when we detect. Right. We detect crime.

[25:09] Russell: Well, you've kind of followed me on twitter for a while, and, you know, my big thing I always tell people is no one cares till it hits the suburbs. Then suddenly it's a big issue. And I always remind people that the suburbs are only minutes away. People think that they can just go to work, ignore crime, and, you know, these are just social issues that the government will take care of and fixed. But that free bus pass that that person gets, gets them straight to your neighborhood. There's nothing stopping them.

[25:37] Stephanie: Yeah, no, and I, the reality is that, not the reality, in my opinion. We're really seeing, especially in the east coast, with the proliferation of needle use places and, you know, providing drugs for addicts and stuff, the different, the different attempts. I mean, there, I do, I've met lots of the social workers that I have encountered. They're true believers. They really, really believe that we don't want to criminalize people who have what they perceive as a medical issue, an addiction. And because it is paired so closely with mental health, it really is. And so it's hard for them to do anything except emote and feel bad all the time. And thankfully, it's swinging back because it's had, even in Toronto, it's, you know, had a huge impact on the crime rate and where people perceive, where people perceive to be more vulnerable.

[26:27] Russell: Mm hmm. No, I agree. It's, you know, the, I understand that these, that the war on, the war on crime didn't work. You know, the war on drugs didn't work. People wanted to try something different because it seemed like a lot of money was being spent and there wasn't the solutions and the resources. So we thought, okay, we'll take it more like a social service, community service kind of row. But it's like we just can't do anything in moderation. We just have to take everything to the extreme.

[27:00] Stephanie: I feel that, and I actually feel exactly the same because I was raised during the Reagan eighties and nineties. I saw, you know, I was right there when Nancy was saying, just say no. So I. And the free strikes rules and the horrendous incarceration of, like, how much of the black population in the states because they had a joint in their pocket. I mean, when they deregulated, decriminalized, I was, frankly, a proponent of it. But I didn't expect to have a pot shop on every corner. I didn't expect the potshops to be across from the mental health hospital in Toronto. Like, that's unacceptable. There should be. I mean, right off the hop, I could tell that this was going to be bad. And then we had the needle injection sites and all these other things. I just feel like we go from, you know, one end of the continuum right to the opposite end without even trying, you know, Portugal's approach. And it's horrible to me that they, a lot of whatever activists in this area rely on Portugal and other countries without being, I mean, maybe they're just ignorant of the fact that Portugal put into place all kinds of requirements that if you're arrested, you go to hospital for treatment with involuntarily, like, you know, they would sort people. You go to jail or you go to hospital. So the sort of things that, frankly, families have been begging for in North America for, what, 25 years, that I'm aware of, that we in Canada, we don't do. We don't make people go to hospital or to. Even for mental health issues you have to put yourself in unless you're a danger to yourself or others.

[28:32] Russell: Well, and even that's kind of, you know, the 72 hours hold and the form paperwork and that it's. It's very, very difficult. And that's kind of something that's always surprised me since I kind of started getting interested in crime and the effects of crime and what causes crime and things like that have kind of fascinated me is that in Canada, you're allowed to be as crazy as you want. There's. You are allowed to be absolutely bananas. Like, you can be completely out there, and that is your right to be like that. And people say, well, that's their right. And I say, okay, I understand if they don't want help and they don't want, you know, medication, that sort of thing, I understand, you know, that it's their right. But the problem is, is that their right to do that starts to infringe in other people's rights. Because when they're not observing reality the same as us, it can lead to a lot of issues where either it's violence against people or even ends up getting, having violence done against them because, you know, they're just in some poor neighborhood and they're ranting, raving on the streets, and the gang member that doesn't care just goes up and, like, knock it off and punches them six times in the face or whatever. And that. So they're victim too. And it's like, okay, well, we just allowed all these people to, to just wander around completely. And then they do self medicate with drugs, with hard drugs.

[30:01] Stephanie: Yeah, no, it's. I mean, all law is about that conflict of rights, right. Their right to be crazy publicly, but our right to not have to, you know, get punched by them or whatever, have them fall on us literally. Right? It's always about that conflict of laws and how to navigate it. And Canada would say, I think lawyers would say, look, we don't regulate what people think. Yeah. Anyway, right, right. We don't regulate what people think. They're still allowed to think whatever they want. They can think aliens are hanging from their ears. It's totally fine. All right? But as soon as they grab you to stuff the alien down your throat, as soon as their behavior. Right. Crosses the line, then we step in as authorities. It sounds simple until exactly what you're referring. You're alluding to that. The reality is that when you have mental people that are waffing down the road, screaming and yelling and screaming than throwing their fists. Right. It's very difficult. And sometimes it's not even violence. Sometimes it's, you know, your dog or even just walking in every day to steal their breakfast from the same Tim Hortons. I mean, after a while, your insurance goes up and our coffee prices go up.

[31:10] Russell: Yeah. And that's, and that's kind of difficult, too, is, you know, you know, the real cost of retail theft and the real cost of what these things have on society and that. Yeah. Who cares if the person's just walking down the street and they're punching air and all that? Like, just mind your own business, right? Just be calm, be compassionate. That's always told just, you know, have a little empathy for them. And it's like people just want you to ignore your natural instinct, okay? There's someone screaming at the air, and they're punching the air, and they're just wandering into traffic and out of traffic. And that, you know, that person is dangerous. And maybe they aren't dangerous, but your gut instinct is telling you that they're dangerous. But society has this pressure. Oh, don't. Don't cross the road to the other side. Just, just be nice, be kind. Ask them if they're okay.

[32:00] Stephanie: See, I actually think that because Toronto is the most populous province and elects our prime minister, you know, us, Vancouver, Montreal. Right. We elect our prime minister because it's big cities that dictate this stuff, frankly, that if somebody's walking down University avenue, nobody cares. But you live in Saskatoon. It's a whole lot different if they're doing it walking by your school or your church or just downtown on a Sunday. It's a very different dynamic once you get out of the cities. And I think that that's one of the real roots of Canada's problems, that we are legislated by the cities. We are every, you know, ruled by city folk who don't get why it matters.

[32:38] Russell: Mm hmm. Just kind of switching gears a little bit here. Although it's been a great conversation, I think, you know, it's, it's good to know some of these things and know more about the law and how the laws applied in that. You said you wanted to talk a bit about, you know, the change to video court proceedings and the effect it's had kind of, on the criminal justice system.

[33:00] Stephanie: Yeah, I think it's not talked about at all, and I think that, and I've already had at least one judge approach me, so to speak, about it. So certainly I am no fan of doing what we call set dates in person. It used to be that every month, everybody had to come to court to check in. Basically. Often it was an excuse to have them see a social worker. And again, in the big cities, where half of the population is mentally ill and half of them are going to see a social worker, it was wonderful way that grounds could try and create structure in people's lives, but that's not the function of the criminal courts. And so now these administrative dates are done by videoing. I'm right there dancing and celebrating that, that finally judges and the system has gotten the technology to do these administrative appearances. You know, they're five minutes long by video. You know, we finally are there. So that is the one bright side to the years of lockdowns that I would say fundamentally opposed to. But the problem is that now that everybody's used to being on video, we're seeing few things arise as a consequence. So if you don't mind, I'll tell a quick story. I hope I'll make it as quick as I can. When Covid. When the lockdown for just ending, I wanted to see what the courtrooms were like because we weren't allowed to go for how long. They weren't running. So I made the time to go down to Old City hall. It was still running at the time. And I walked into plea court and the crown was there and the judge was on the bench and they were talking to screens and there was no big screen. So you couldn't see who was in court virtually with them. Don't know if they were calling from home or the jail or what was going on. You walked in and you didn't know what was going on. And so I sat in the body of the court and thought, whatever happened to the open courts principle? Because the whole point of courts being public is that people can go and learn how our system works. Absolutely. And certainly that day, school kids walked in and ended up walking right back out because they couldn't see anything. There was no big screen to at least watch the proceedings. They ended up leaving. So the open courts principle has been decimated because people don't go. They don't know you can go. And even though everything's on a video screen for whatever reason, very few of the courtroom Zoom login codes are available to the public. And the public, I think, are often just nervous. They don't know that, you know, the etiquette, you know, the same as if you went in person, I guess. But it's a huge loss because frankly, when the public goes, judges sit up a little straighter, judges listen a little more. It's accountability from the public and it's important. And more importantly, I think as a lawyer, when you meet someone only on video, I'm sorry, but I'm sure most people are already starting to be aware that you don't create, you don't connect the same, you don't have the same functional connection with that person. And that may be fine for your banker or to sign your real estate, you know, your agreement of purchase and sale. For most things, that's fine, but I wouldn't. But for therapy, it's hideous. And similarly, the judge who saw me in court called me forward because of course it knew me and went off the record when I asked him what he thought of video court continuing for substantive stuff like pleas and bail hearings and even trials, and he went off the record. He wouldn't allow it to be recorded and said, basically, I'm livid. How am I supposed to be able to read my, you know, the accused before me, to be able to sense whether they should get more time because they're kind of full of crap or whether they're genuinely remorseful. Like, he can't read their body language. He can't tell whether they're, you know, going slightly off camera and laughing at. And so there's a lot lost. So between the loss of the open courts principle and the inability to judge properly, I think it's horrible.

[36:52] Russell: Yeah, it's, you know, with body language. Right. You know, when we bought it, 10% of what we communicate is communicated in the written word. 90% of it is body language.

[37:07] Stephanie: And it's. I do think that the clients are suffering. I was in set date court waiting for it to open, and there was, like, 25 of us in there. And I got chat, and one of the guys. This is the thing. Lawyers don't even chat while we're in the waiting room. You know, they just don't. They just sit there and do other stuff. But on this particular occasion, it was sort of a new thing, and one of the guys started chatting. So I was chatting back. He commented exactly what we commented about the client contact or lack of it, and I joked and said, it's the clients that are losing out. They don't. Why would we care? It's hurt, you know, you just don't care unless you meet them in person. And one of the guys, like, one of the accused, popped up and said, yeah, so he already was seeing that, you know, it's gonna. I think people should demand to meet their people in person.

[37:52] Russell: Well, I think, too, that goes back to what you said earlier on. Right. You said at the beginning how, you know, some of these issues were. Can be resolved without ever having to do the whole rigmarole role. You can have a sidebar conversation and come to an agreement, and that that's satisfactory for everyone. Well, it's kind of difficult to do that over Zoom. Right. Because, you know, you don't know who's listening and that sort of thing. And sometimes these conversations are better had in private than in a public forum.

[38:23] Stephanie: Yeah, I see. One of your commenters is talking about how the Zoom courts are inefficient, and that's an example of it. The Zoom courts are terribly inefficient for a multitude of reasons. They're. There's, like, everything. There's trade offs. So I understand what she's saying, but at the same time, being able to, you know, have a smoke out back and cut a deal. I mean, it used to be like that. And it's gone. You know, it's just gone.

[38:51] Russell: Yeah, it's, you know, it's finding that balance. Right. Finding that balance. Because like you said, some of these administrative things can be done. You know, it kind of reminds me of the government, you know, like the orders in council that's supposed to be for administrative things, not for passing handgun bans and things like that. It's supposed to be for, you know, appointing people without having to do like into the Canadian Gazette magazine or whatever, like, you know, just small little things. It's not supposed to be meant to bypass parliamentary debate and things like that.

[39:23] Stephanie: Yeah. One of the ironies is that the guys in custody love it. They don't have to get hauled out of their cots at five in the morning when you get hostage sandwich for breakfast and lunch. So they actually prefer being in Zoom court for all proceedings, really even. I mean, you know, everybody's a little bit different. Most people, I think, still want trials in person. And 90% of trials are done in person. Most lawyers have recognized that, you know, there's an advantage to being in the room with a complaint.

[39:49] Russell: I do have a question for you. I've kind of come to this conclusion, and maybe I'm off base here, that our society, you know, so much, so much of what we say and do in public is based off of our professions. So when I, when I say it like that, it's, you know, there's a lot of people that were very critical of the lockdowns, critical of the shots, critical of the COVID response and that. But people were told that if they complained about it, they would lose their jobs. And that. And I'm just in Canada, you know, we have freedom of speech, and I understand that that is to protect you from the government, not to protect you from private corporations per se. But the problem is what happens when you. When people are forced to adapt to what their employer's values and ethics are, and then that may not actually represent their values and ethics, and then outside of work, they, without representing themselves as employee of that workplace at all, you know, no LinkedIn profile, nothing like that. And they profess their values out in, you know, the public square and their employer terminates them for that. Seen in cases like Amy Hamm is fighting her regulator right now. I had a guest a couple weeks ago, she was a teacher. She's fighting her regulator. Her, you know, employer tried to get her to sign an NDA or something like that, and she said no. But it's like, did we just let our let employers start dictating what we can and can't say in society now, is that healthy?

[41:39] Stephanie: So of course, the freedom of speech is exactly what you said. It's a restraint placed on the state. It's got nothing to do with private anything. The only thing that hampers Private Corp. Companies, corporations, whatever, employers, is the human Rights act. So the provinces in the federal one. And you'll notice that one of the groups that's protected isn't people that want to tell the truth. Right. It's for the human rights code and all that stuff. The tribunals are all geared towards protecting certain groups that are perceived as being is, you know, suffering under, you know, an adult. It's supposed to protect minority rights, collective minority rights. How it got used is a bit of a shocker to a lot of people. How it's being used now is a bit of a shocker because, of course, it's been employed against everyone, so many people. Amy Hamm and certainly Jordan Peterson, of course, is the most famous, but it's the same thing. So did we allow employers to dictate what we say in public? It's not that we allowed it, it's that employers wouldn't have deigned 25 years ago to tell someone what to say in public. And I don't think that even if you had been on television, you know, you're a welder and you go on tv and say, I hate Polyav, or whatever, I don't think anyone would in Canada would have thought to, you know, question that is not being somehow appropriate, even if you work for Boolean. Right. I think that the world has changed is that ever since words have been considered hurtful. Right. Remember sticks and stones? I break my bones. You could say whatever you wanted as long as you didn't hit somebody, that's changed. And honestly, I think it comes out of years ago, people were saying on Twitter, sticks and stones will break my bones. It shouldn't, you shouldn't be. He platformed for saying anything. Frankly, you know, if you, if you don't, if you own a platform, you don't want that on there, that's fine. You have the right to kick them off. But really, if you're an employer, you shouldn't, the canceling shouldn't be a thing. And then a young lady, Otis, died of suicide because of a guy in Europe. Remember this case? And violence. Suddenly words were violence. And honestly, that's when I saw the update from words being innocent and they're just words and ignore them and get tough and don't be ridiculous and stick some stones to. Words are violence. This person must go to jail for what they said. Suddenly it was acceptable.

[43:58] Russell: Isn't that dangerous, though? Because you said, like, we can't police what people think. Yeah, right. You know, and. But at the end of the day, you know, like, I've had people tell me, well, you know, we need to shut bigots up and we need to do this. And I said, won't you rather know who those people are so you can avoid them? I'd like, I like my. My piece, you know, my piece of shit out in public so I could be like, okay, I'm gonna avoid you because your values are so horrendously awful that I want nothing to do with that. Rather than, you know, go ahead.

[44:34] Stephanie: I used to find them amusing. I mean, when I, back in the nineties, when I hung out with all the punk rockers here, believe it or nothing, and the whole, you know, tone was to be as shocking as possible to get attention and to, you know, whatever and just be punk rock and, you know, obscenity laws and Frank Zapp and all that stuff. That's how I was raised. So the idea that we curtail our speech because someone's feelings are hurt has been elevated to. It's not just hurt anymore, right? It's not just that little hurt now, somebody commit suicide, you can make them go. They just created another fear. Right? Our government fills us with fear. And this is another way that it's been done, in my opinion.

[45:15] Russell: Has there been any talk in the, you know, the defense community about speech laws and kind of the consequences that the human rights, you know, code expanding and that.

[45:28] Stephanie: So in crim, it's very different worlds. Like, technically, human rights stuff is administrative. So, you know, there's people that do that stuff that I'm not even, you know, ensured to talk about, shall we say? But certainly, let's just say that in Toronto, it's not. I don't think this conversation would go very far. It's, you know, it's just as I say, that's why I'm so, I come back to what was once sticks and stones is now, but words are violence now. So to me, that's where to start. And as far as trying to push back on having more freedom of speech in a private in, like, you know, in the employer, in the private world, so to speak, the response is pretty, I guess I would call it libertarian. You know, get another job there. You're free to say it, and they're free to fire you.

[46:17] Russell: Yeah, I guess so. Kind of work at will type thing.

[46:21] Stephanie: I mean, I don't know how to fix that. I mean, I don't think there is any fixing that. I honestly do think that as long as words are considered violence, as long as people think it's okay, like, it's a feels thing, how to fix that in law? I mean, I don't. I mean, I tend to be libertarian when it comes to passing moral. It's like, no, we need less. So the idea of somehow hamstringing, stopping people from being able to. Being able to. There was just a pop up about the venture election. So. Yes. Yeah, it's the Bencher election is a good sign that what I think is the right way to go is not even being thought about now.

[46:57] Russell: Kind of want to touch. Lastly, today on self defense. Okay. There's been a lot of talk recently about people saying, we need concealed carry, open carry. People talking about, you know, someone breaks in my home and, you know, slashes himself on the glass and they broke into your home, that they can sue you and you're going to go to jail. And there's all sorts of myths, misconceptions, law of stuff from the states and that, like self defense laws in Canada, like, do they work? Do they not work?

[47:31] Stephanie: What do you think self defense laws work if you have the right judge? How's that? That's the Honda's doing it. I honestly believe that. So just as a way, a little bit of history. June Bog will probably remember. Sorry, is it June bugs yet? Junebug will probably remember back when the self defense regime was a yemenite mishmash of bloatware as they kept adding things to try and fix what the court seemed to, you know, try and fix with different decisions so the legislators would come in and tax something on that they hoped would cure a mischief that, you know, had arisen about some self defense. And then they raped it all away and basically said, proportionate force. You know, you can defend yourself, a person, yourself, another person, or your property, but it should ought to be proportionate force. So in theory, that sounds great. You know, somebody walks in with a gun, then you get to pull out your gun and shoot him, so to speak. That's a gross generalization. Please don't take that as legal advice, because it's not matter of fact, it'll get you arrested. The problem is that because it is for a reason, ambiguously worded, to give judges the leeway to the discretion, right, to listen to all the facts of the case and make a decision, it doesn't give the kind of certainty that people want. Right. So that's the trouble.

[48:50] Russell: Well, like proportionate force, that sounds like something a police officer would be held to, not a sit, not a civilian that doesn't have police training. So because, yeah, you hear that the police officer didn't use proportionate force or something like that. Why should a civilian who doesn't have the training being held to the same standard as a police? That's what it sounds like to me. It's like, okay, well, if they have a knife, then, you know, you need to do this. Or, you know, like the police have that use of force continuum or whatever. You know, there's, there's, okay, suspect has this, we will react with this. Right? So, but, you know, styling, who works at the hairdressers, who goes home and some guy's, you know, trying to kick her door in and she's got two kids in the home and she's calling the police and they're saying they're minutes away and she's got to make a decision. She's not like, well, I went to use of force. You know, I went to depot and my use of force training says I should respond like this. No, like she's just, she's scared.

[49:57] Stephanie: So Justice Misner would say, as I did a trial, something like this would say, you're absolutely right. And you are absolutely right. There is room with, and there's case law that's developed since this new regime or whatever the proportionate proportionality regimes come in that says that you don't, that a person who's faced or even a person who started a fight, if you're in a fight, a physical fight, you're not expected to, you know, at a very granular level, you know, one punch, one punch. You're not expected to have your, you know, your wherewithal to slow down and think that clearly so the judges are allowed to step back and sort of go, look, what would you really think is reasonable? And that's really what most judges, I think, I hope, try to do because there's a difference between, you know, somebody jumps in the middle of the street and you turn around and you just whack them as hard as you can. You have no idea what they've got in their hand or whatever. So you're in an active fight, but that's a lot different than somebody's, you know, walking towards you with a knife or they're even yelling and screaming and waving. Court's going to look at, you know, really? What was going on here? Like, did you yell at them around the corners? It's a road rage situation. Like, they want to know the full context for what, first of all, why it happened. So they start right from the beginning. And it may be that, you know, the person, you know, as you say, came into the house and she's scared for her kids in the basement. But maybe the guy is just drunk, literally just walked in the house, and he was drunk. And so the courts don't, they don't make any assumptions. They don't sort of assume, well, she's little, he's big. They don't, they're not supposed to do that. You're supposed to say, well, because he was big and I was little, I felt this way. And if you think that there's future aggression, there's a case called Lavalee where an abused woman basically killed her husband because he'd been abusing her for years, and she figured, I'm going to do it when he's sleep, otherwise I'll be dead. And that was a big deal. It created the concept in Canada for the first time, of being able to defend yourself, even though there's no immediate right, no immediate attack going on. So whose self defense is geared to that immediacy? He's in your face, you know, you're scared, and then you have to prove, okay, I was trying to be proportionate, you know, I knew he wasn't going to try and kill me, so I was just trying to get him off me. Or I did think he was trying to kill me, and that's why I pulled the knife out of death.

[52:18] Russell: Mm hmm. Well, can. Can, you know, in court law. So, yes. So, yeah, the person wanders into the house, he's drunk, but statistically, we know the rate of sexual assault against women by drunk men. So could she not say, like, I, you know, I thought I was going to end up getting sexually assaulted, or I thought that, like, is that not something she could say? Like, you know, because she may honestly believe that.

[52:47] Stephanie: Yeah, but she's not.

[52:48] Russell: That's.

[52:48] Stephanie: Unless there's indicia, like, unless he's grabbing her by the wrist or unzipping his pants, frankly or no, if he's just, if, you know, she walks down the stairs and he's standing there, and she, I don't know, grabs the kitchen knife from beside her on the table and throws it at him, if there's no. That, she's likely to be the one in trouble, not him. The fact that he's in her space isn't the, no, I mean, that's my opinion. Unfortunately, it's nothing. And please understand, I don't necessarily think that every case is different and every example is different. I necessarily think that's the right thing, but it's the reality of it, about the status of our law. So I tell people, I, you know, as we said when we spoke earlier, when you say, you know, he finished, he started it, so I'm going to finish it. And we were, some of us were raised that way. You know, my dad told me if someone hit you, you put them on the ground and that will get you convicted in Canada. But maybe that, maybe you have to be convicted in Canada because otherwise you're dead. So these you get to take. I mean, you need to think for yourself and do the right thing and kind of worry about it later. Because perhaps I'm just an optimist. I do think that if you did the right thing, most judges, and if not the trial judge, the appeal judge, will get it.

[54:00] Russell: Well, what's the saying? I'd rather be judged by twelve and carried by six.

[54:05] Stephanie: Exact.

[54:06] Russell: When it comes to, like, firearms for self defense, are people allowed to use their private firearms for self defense in Canada?

[54:14] Stephanie: Wow.

[54:15] Russell: Uh oh.

[54:17] Stephanie: This is the, as a lawyer, I'm listening even to the phrasing of it because it's a classic layman's question. And it's the layman's questions that are the hardest. Are they allowed to use a gun to defend themselves in Canada? Proportionate force. If there's a guy, you know, standing over your bed with a Glock, you know, yeah. You know, it's, but if he's running away from you, well, even if he's got a gun in his hand, no, I mean, this is fast, quick, you know, gut level answers. But that's why I, like, I don't mind the new regime because basically proportionate force. Proportionate force. Try and do the best you can with it. And if you can't because you are terrified or the kids are in the basement or you know darn well this guy's coming back tomorrow. That's, you know, we all have to make tough calls, but can we use our guns to defend ourselves? Hell, we can barely own them again. Keep in mind that as soon as there's a gun in play, you're going to be arrested. Like it, whether it's, it's not like you're in, you know, Florida, Louisiana, where they might. Right. I, they got two guys with guns and the one gets to go home.

[55:25] Russell: Yeah. Yeah, it's not like the ones where they, like, well, investigated, and we're declining to press charges.

[55:30] Stephanie: And that, I don't know. Did you see, there was a sheriff in Florida, there was a homeowner, or a fella broke into a bunch of homes somewhere in Florida, admitted a press conference because somebody shot the guy. Lived, apparently. But the sheriff does a press conference and says, yeah, no homeowners step forward to take, you know, to say that they're the one who shot him. And we'd really like you to tell us because you won't be arrested. We encourage that because then we won't have to pay to put him in jail. And you have a right McCastle doctrine here, which means that if someone goes in your house, you can shoot him. And they basically are saying, you know, he thinks this poor homeowner thinks he did something wrong. And if you come on down, sir, we'll give you more training, and next time you won't miss. This is very opposite to Canada.

[56:15] Russell: Oh, yeah, Ken, they would have. They would had a manhunt, and they probably would have arrested ten legal firearm owners.

[56:24] Stephanie: So, anyway, it's a very, you know, this is why you need to know the laws of your jurisdictions, and this is why many people, you know, have some mo. I certainly have a certain amount of that admiration for how the states have different criminal laws in different states. You should move where. Right where your sensibility, where you feel comfortable and safe. And for some people, they want safety. They want police and cities and. You know what I mean? They want. They want no guns. And other people feel safer with a gun on their hip.

[56:50] Russell: So, like the California versus Texas argument.

[56:54] Stephanie: Texas doesn't have open carry. Florida.

[56:57] Russell: Well, Florida versus California, then, just. I really want to say thank you very much, Stephanie, for coming onto the show today and for telling us a little bit more about, you know, laws dispelling some myths. It's. It's. It's been really good and the hours just flown by.

[57:15] Stephanie: As for me, too, I genuinely enjoyed it. I really appreciate the opportunity, and I appreciate seeing June bun Spitz fire. I see her on x all the time.