Marie Henein is the smartest, toughest, most sought-after defence lawyer in the city. Her tactics kept Michael Bryant out of jail. Now she intends to do the same for Jian Ghomeshi, even if it means ripping apart the testimony of his accusers.
(Image: Markian Lozowchuk)
In the Hollywood version the setting would be grander, but in the College Street courthouse tucked above a Winners outlet, grandeur is in short supply. Here in a cramped corridor where harried lawyers dart into the small hearing rooms lining each wall, a gaggle of journalists waits for the next chapter in a saga that the docket lists as R. v. J. G.: the Queen versus Jian Ghomeshi.
Suddenly, the door to Courtroom 506 opens and the media contingent rushes inside to fill its scant half-dozen rows. Then just as suddenly, Ghomeshi’s lawyer strides up the centre aisle to the defence table, sweeping past in a stunning black dress and designer jacket like some exotic import from Suits. A slash of scarlet lipstick hints at her sense of showmanship, and the brisk clip of her black patent stilettos leaves no doubt about her flinty reputation. Without uttering a word, Marie Henein commands the room.
To the media’s dismay, her client is nowhere in sight. Ever since Ghomeshi pleaded not guilty to seven counts of sexual assault and one of choking, Henein has put a gag on his dulcet public tones. As one of the most respected and feared criminal lawyers in the country, she has become not only his voice but his last best hope against the possibility of a life sentence in prison.
For the lead role in this drama, no casting director could have made a better match. In looks, age and background, Ghomeshi and Henein share eerie similarities, and, within legal circles, her star power is at least equal to his. But while Ghomeshi’s on-air charm may have carried him to the loftiest reaches of the CBC only to be exposed as a sham—an artful mask concealing an alleged mean streak—Henein seems to have gone out of her way to cultivate a forbidding persona. Even one of her most grateful clients, former attorney general Michael Bryant, has described her as someone who “seemed to channel Hannibal Lecter,” and another, one-time minor league hockey coach Dave Frost, dubbed her “my shark.”
In this perfunctory courtroom conference, she shows no expression as she pulls a gilt pen from her Yves Saint Laurent handbag to sign off on an agreement that spells out her first small victory. Crown attorney Michael Callaghan announces he is dropping two of the seven sexual assault charges, which, he admits, had no reasonable prospect of conviction. With that, two of the six women who came forward to file formal complaints against Ghomeshi have been eliminated from the case.
That leaves four remaining accusers, and at his first trial next February, Henein will confront three of them for the first time. The fourth she will take on in a separate trial scheduled for next June. “We are ready,” she tells Justice Rebecca Rutherford. “We are anxious to have this heard in a courtroom before a judge.”
To an onlooker, that declaration from a lawyer whose cross-examinations have been compared to a machete has the distinct ring of a threat.
Henein’s office, a low-rise lodged among the furniture emporiums along King Street East, is a study in minimalist white. No framed degrees or family photos mar the pristine sleekness of the lobby. On one wall, a sculpture in white neon script spells out what may well be her personal credo, “No Guts, No Glory.” Emerging to greet me, all smiles and self-deprecation, Henein could be mistaken for some affable twin of the daunting figure I have just witnessed in court. It’s a flip side that few but her friends and family see. “I’m not a warm and fuzzy person,” she acknowledges, “but I have more than one gear.”
At 50, she looks a decade younger, a vision in black chic perched on $1,500 leopard-patterned Louis Vuitton pumps. They turn out to be just one pair from a collection so notorious that Ontario’s former chief justice Warren Winkler once ribbed her, “So are you going to buy a car or a new pair of shoes?” Even with the benefit of those four-inch heels, Henein seems tinier than she did in the courtroom, her hourglass figure whittled away by twice-weekly weight training sessions, her boyish bob and kohl-rimmed eyes lending her the air of a gamine. A diamond-encrusted serpent ring is her only jewellery, slithering up one ornately manicured finger, each opaline nail inscribed with a delicate black deco design. Despite the obvious time and attention she has devoted to that artful presentation, she waves off questions about her designer wardrobe. Male lawyers, she protests, never get queried about their clothes. “If I dress this way, it’s because it amuses me,” she shrugs.
While most legal firms opt for the reassuring patina of wood panelling and landscapes, Henein’s stark private office features a giant photo of a voodoo doctor named Baron Samedi strutting gleefully through a New Orleans cemetery in top hat and skull mask. Every object in these spare quarters has been edited by the same exacting eye that she brings to each case—all part of a controversial exercise in building her own edgy legal brand.
In a profession where an ad in the Yellow Pages was once considered showy, that website shot has provoked heated debate. While some critics sniff that it smacks of an ad for an HBO legal series, within the criminal bar it has set Henein apart. “Marie understands she is marketing a product just like Nike is,” says Breese Davies, a vice-president of the Criminal Lawyers’ Association. “She’s positioned herself to be the go-to lawyer for rich and famous people in trouble.”
Not that branding brought Ghomeshi to Henein’s doorstep. He originally consulted Brian Heller, a highly respected but lower-profile member of the criminal bar, as well as Neil Rabinovitch, a civil litigation specialist at Dentons Canada, the global giant behind Ghomeshi’s widely criticized and short-lived lawsuit against the CBC. By the time he hired Henein, it had become apparent that his fate would rest on skewering the women lining up to accuse him. “You’ve got to do that in a way that doesn’t make you look like a bully or an ogre,” points out Osgoode Hall professor Alan Young. “It doesn’t hurt to be a woman.”
Still, Ghomeshi had not yet retained Henein on the night of the Criminal Lawyers’ Association gala last October, when she took to the stage of the Ritz-Carlton with a one-liner that lit up the Twittersphere. “We represent people who have committed heinous acts—acts of violence, acts of depravity, acts of cruelty,” she quipped. “Or as Jian Ghomeshi likes to call it, foreplay.”
The ballroom erupted in laughter, but six days later when the butt of her joke hired her, some colleagues wondered whether the jest was yet another of Henein’s marketing ploys—a provocative signal pitched directly at Ghomeshi, who had already confessed to a taste for rough sex, that she would push boundaries in defending him. “I wouldn’t put it past her,” says one, asking for anonymity. “That’s one of her assets. She can think five, six, 10 moves down the chess game.”
In 1982, Ghomeshi’s memoir of growing up as the child of Iranian immigrants in the city’s northern suburbs, he writes poignantly of life as an outsider, acutely aware that his skin was not an acceptable shade of pale. It’s a perception that Henein knows all too well. The daughter of Maronite Christians, she was born in Cairo, then a bustling cosmopolitan hub, where Egyptian strongman Gamal Abdel Nasser had banished the Muslim Brotherhood, and upper-middle-class women like her mother felt free to dress like Betty Draper. There, Joseph Henein set aside his own dream of becoming a lawyer for a career in pharmacy that, conveniently, proved to be more portable. In 1966, as Nasser’s aggressive pan-Arabism unnerved many Maronites in Egypt’s Christian minority, Henein packed up his wife, Evelyn, and their eight-month-old daughter for Vancouver—a first stop in Canada that was a shock for a couple who had only a nodding acquaintance with rain.
Within a year, the Heneins headed back to the Middle East, this time to Lebanon. When Evelyn’s parents promptly immigrated to Toronto, she begged her husband to join them, but he balked at another move. Obstinate, she left anyway with Marie in tow, landing in a crowded apartment on Jameson Avenue with her parents and three brothers. It was an audacious break for a Middle Eastern woman with only a high school diploma from a French school, but when her efforts to find a job failed, her own mother ordered her back to her husband’s side. Finally Joseph Henein relented, and the family set down roots in Toronto just after Marie’s fourth birthday. That nomadic preamble played a key role in shaping her. “I had a mother who was angry at how women were treated in her culture,” Henein says. “Very angry at the limited options for her.”
From her earliest years, her mother impressed on her the imperative of defying gender expectations. “That was her mantra when I was growing up: ‘You must never, ever depend on a man for anything,’ ” she says. “That’s all I heard: ‘There’s nothing a man can do that you can’t.’ ”
Her mother found a job in a bank while her father toiled 12 hours a day, seven days a week at the succession of pharmacies he owned, but Henein was far from alone. Wherever they lived, from their first apartment in Thorncliffe Park to the stolid brown brick house they bought in the farthest reaches of North York, the Heneins were never more than a few doors, or a few blocks, from her maternal grandmother, the matriarch of the family, who became her chief companion and babysitter. On her first day of school, Henein didn’t speak a word of English and remembers her grandmother dropping her off, leaving her wailing in Arabic, “Teta, Teta, I can’t understand what they’re saying.”
Even growing up in a neighbourhood populated largely by other immigrants, most from Italy, Henein and her kid brother, Peter, felt they didn’t quite belong. “It only took one look at what was in our lunch boxes to see we weren’t like the other kids,” he says.
She recalls being singled out in her Catholic grade school, St. Leonard’s, and called ugly names. “It was a constant inquiry: ‘Where are you from? You’re very dark,’ ” she says. “I always wanted to beat up the boys, not physically, but with my tongue.”
In those years, one sidekick provided distraction, her mother’s youngest brother, Sami. Only 10 years older, he was more best friend than uncle and, she says, “one of the great loves of my life.” Flamboyant, wildly creative and gay—which no one in their devout Catholic family wanted to acknowledge—he was obsessed with fashion and treated her as his model and muse. In an old snapshot, she is standing on the family’s apartment balcony at the age of four, dressed up by him in her mother’s black lace cocktail gown, curls framing a grave cherubic face that he loved to paint with lipstick and eyeshadow. It was a pastime that would amuse them both for years. “My uncle was my stylist,” she says.
When he escaped to a series of design jobs in New York, she visited him every chance her parents allowed, a dress rehearsal for her current pilgrimages to Barneys and Bergdorf’s. She was 15 when he took her to her first drag show. Then in the summer before she started law school, he arrived back home gravely ill. She was at his side when he was diagnosed with one of the city’s first cases of full-blown AIDS.
At a time when hysterical headlines were spreading panic about the purported “gay plague” and long before any notion of antiretroviral cocktails or official Pride parades, Henein visited him daily in hospital, where attendants balked at bringing him meal trays and her own family refused to accept the truth about his condition. Within months, he was dead. “I can’t talk about it,” she says, fighting off tears.
Henein’s brother, Peter, now an intellectual property lawyer at Cassels Brock, sees the impact of that loss today. “It wasn’t just Sami’s death that affected her,” he says. “It was how he lived his life—living out loud, living proudly, her style.”
His legacy persists not only in some of Henein’s more outré fashion statements, but in larks like her firm’s campy holiday videos that send up her barracuda image. In one video, released for Christmas 2012, she stomped through the office on a mock rampage, knocking over eggnog and Christmas trees to “You’re a Mean One, Mr. Grinch.” When it went viral, she topped it the following year with a hilarious takeoff on the movie American Hustle, prancing in ’70s bell-bottoms and a blonde Farrah Fawcett wig as her associates shouted raunchy taunts. “It was a reaction to all these self-congratulatory videos that were going around,” she says. “I thought: ‘We’re not the United Appeal; we’re lawyers!’ ”
Last fall, shortly before word leaked out that Ghomeshi had hired her, both videos disappeared from YouTube and she scrubbed her Twitter feed. Despite that pre-emptive caution, Henein showed up to emcee the annual awards gala for the country’s in-house corporate counsel—possibly the most staid members of the legal community—in knee-high, lace-up dominatrix boots. Was she challenging public perceptions before a trial in which bondage and domination are sure to emerge as a theme? She smiles enigmatically at the question. “It’s interesting what people see,” she says.
On the sprawling campus of St. Joseph’s Morrow Park, a Catholic girls’ high school on Bayview south of Steeles, Henein met the two classmates who remain her best friends today, Laura Nemchin and Rita Mason, both of whom are now also lawyers. They bonded immediately as brainy, wisecracking outsiders, all three regularly annexing the top marks in their class. “We were not the pretty, popular girls,” Henein says. “We were all precocious and wouldn’t take any shit.”
In school and out, they became inseparable, too nerdy for drinking, drugs or dates, but priding themselves on their intellectual sophistication. In religion class, where most students chose heartwarming essay topics, Henein argued the merits of abortion and premarital sex. But in Grade 12, when she and Nemchin were co-editors of the student paper, The Echo, her iconoclasm proved too much for the principal. Publishing a critical insider’s report of a student retreat, they were summoned to Sister Bonaventure’s office and ordered to reveal their source. When they refused to comply, their parents were called, and they were threatened with banishment from graduation ceremonies. “It was sort of an international incident at the school—everyone knew about it,” Nemchin recalls. “But we stood together. We never did give in.”
Now a lawyer with Ontario’s Ministry of the Environment, Nemchin recounts the incident as a feisty stand for freedom of expression, but Henein remembers it for another reason entirely. When a male teacher she expected to defend them instead urged them to capitulate, she castigated him for failing to uphold the ideals he extolled in class. Three decades later, his response still enrages her. “He took me aside and said I was really going to have a problem in life if I didn’t learn to be a little softer, a little more feminine, argue a little less,” she says. “I would alienate men.”
It was one of the few times in her life when she was warned to tone down her behaviour—a message she has adamantly refused to heed. From the time she was in Grade 7, she knew her destiny was to be a criminal lawyer, the path her father regretted not taking. At night, he helped her perfect her oratorical skills by making her read aloud from Dickens, and he prodded both his offspring to debate. “He loved the oral advocacy part,” she says. “For me, it was standing up for people.”
In those days, Henein had never met an actual lawyer. All she knew about the profession she had gleaned from reading about Eddie Greenspan, the superstar defender whose CBC series, The Scales of Justice, recapped famous trials in a way that made criminal law seem both noble and enthralling. What intrigued her was that Greenspan too had been an outlier, a scrap dealer’s son from Niagara Falls, who stumped the country in a crusade against the death penalty with a showman’s flair. She made no secret of the fact she was star-struck, announcing to a friend in her freshman year at the University of Toronto that she intended to work with Greenspan. “Well, good luck with that,” he had scoffed.
It was Henein’s style that caught the eye of Alan Young, her first professor of criminal law at Osgoode Hall. “She dressed in an eccentric punky way that made it clear she was not like other students,” he recalls. Hiring her as his research assistant, he concluded she was a natural for that wing of the bar where bravado counted for more than good grades. “She was headstrong, very tough,” he says, “and she did not wilt under pressure.”
That grit and an impressive academic record finally won her an articling slot with Greenspan’s firm. From the first, friends characterize their relationship as a father-daughter dynamic—compelling, complicated and volatile. Greenspan, who had two daughters, would suppress a grin at Henein’s unvarnished utterances and occasional F-bombs. “He never once told me to tone it down,” she says. “He liked the toughness. He said, ‘You’re the toughest person in this office.’ ”
At the end of her articling stint, he offered her a permanent job, but she had already been accepted to the master of laws program at Columbia University in New York. When she returned, there was no opening waiting at his firm. Armed with two prestigious degrees, Henein found herself unemployed.
Alan Young arranged for her to co-teach a course with him at Osgoode and hired her to help with an appeal in a sensational drug case, reducing 60 volumes of transcripts from 100 witnesses in a year-long trial to a coherent summary of facts, known in legal jargon as a factum. She polished it off in record time—an early demonstration of her skill at synthesizing vast quantities of complex material. Equally impressed was Marc Rosenberg, the counsel for the co-accused in the case and, not incidentally, Eddie Greenspan’s law partner. Within the year, she was back at their firm as a junior associate.
There, she learned to help Greenspan think through the theory of his cases and workshop his cross-examinations, every question scripted and every possible plot twist explored. Out-slogging even her workaholic boss, she buried herself in the legal grunt work that would allow him to shine. “There was nothing else I wanted to do that would interfere with that,” she says. “I was in his face all the time, saying, ‘I want to do more.’ ”
Henein split her time between Greenspan and Rosenberg, whose personalities and practices were a study in contrasts. The self-effacing Rosenberg, who died in August, was virtually unknown outside legal circles, where his mastery of the law made him a highly regarded figure at the Ontario Court of Appeal. From Rosenberg, Henein learned to craft the precise factums essential to every appeal—and to her current credibility before the courts. “The perception of lawyers is that they’re hustlers, pulling the wool over people’s eyes,” she says, “but that’s not good advocacy.”
While most criminal lawyers specialize in either trial or appeals, Henein is now equally adept at both, and colleagues have watched in disbelief as she addresses the Court of Appeal with a brashness few would dare. “I have never seen anybody with more naked confidence in a courtroom,” says Martha McCarthy, the president of the Advocates’ Society, who recently called on Henein to assist with a complex case. “She speaks truth to power and there’s no sugar-coating. I don’t think any other woman could get away with it.”
Part of Henein’s self-assurance comes from 14 years teaching basic and advanced evidence as an adjunct professor at Osgoode, where former students recall her prowling the classroom, rhyming off case law without consulting a note. That encyclopedic knowledge was rewarded when Greenspan and Rosenberg tapped her as their co-editor on the annual update of Martin’s Criminal Code, one of three prestigious legal editing roles she continues today.
Henein’s passion for the law has also earned her the esteem—and occasional indulgence—of the judiciary. “She’s always entertaining,” says former chief justice Warren Winkler, who lauds Henein for her ability to cut straight to the crux of a case. “She just tells you the hard facts,” he says. “She doesn’t try to gloss it up.” Winkler still chuckles over one appeal where Henein was so determined to convince a fellow justice of her legal reasoning that she stood behind the lectern wagging her finger at him like an impatient schoolmarm. “She’s so good that she can get away with it,” he notes. “She’s careful—she’s not rude or impolite—but if you think you’re going to push her around, there’s going to be kickback.”
Working late one night, Henein found her colleague Alison Wheeler distraught that a prospective client, convicted of manslaughter and grappling with mental illness, had been refused Legal Aid; he was planning to argue his own appeal—a daunting prospect even for those with a law degree. Together they came up with the idea of offering their services, pro bono, to prisoners like him who had run out of legal options. With the blessing of Marc Rosenberg, by then a judge on the Court of Appeal, they took off for Kingston—an impromptu mission that has turned into a 14-year-old judicial institution. With 30 appellate criminal lawyers on a volunteer roster that Henein still runs out of her office, the program has won 20 per cent of the 100 appeals a year it argues for some of the most marginalized prisoners in the province, many of them Aboriginal people or those battling mental health issues.
That sort of impassioned idealism proved irresistible to another of the young lawyers on Greenspan’s staff. Glen Jennings, the soft-spoken son of a United Church minister, was instantly smitten. Their courtship, wedged between staggering workloads, was spent sampling the city’s hottest new restaurants, an enthusiasm Henein had caught from Greenspan. A year later, their wedding at the Art Gallery of Ontario was catered by their friend Susur Lee. Now, as head of the white-collar crime practice at Gowlings, Jennings gamely co-ordinates his schedule to help raise their sons, aged 10 and 15. Asked how they’ve managed to juggle two high-octane careers, Henein paraphrases U.S. Supreme Court Justice Ruth Bader Ginsburg: “Because I have a partner who is as supportive of my career as he is of his.”
With Greenspan, Henein’s reputation within the legal community flourished, but even after he made her a name partner in 1998, she was always his second chair at the defence table, an afterthought in the media coverage of his biggest trials. When they took on the appeal of Robert Latimer, the Saskatchewan farmer convicted of murdering his severely disabled daughter, Henein prepared the factums, but it was Greenspan who made the arguments in a case billed as a test of the country’s euthanasia laws. When the Supreme Court ruled against them, she took it hard. “Sure, I think that was a failure on my part,” she says. While some lawyers shrug off their defeats, Henein has been known to chew on hers for years, stubbornly plotting appeals. “My view is that you should torture yourself if you lost, because the stakes are so high,” she says. “For your client, it’s his life.”
Of all her cases with Greenspan, the biggest media sensation was the 1998 trial of former Nova Scotia premier Gerald Regan, charged with 18 counts of sexual assault. With multiple complainants and salacious coverage of the sexual exploits of a powerful figure, it has similarities to the Ghomeshi scandal. Before the trial opened, a judge stayed nine of the charges, and Henein and Greenspan went on to win Regan’s acquittal on the rest. But what she remembers best about the case is walking into Greenspan’s office on the eve of their departure for Halifax. She had just lopped off her shoulder-length locks in a punk cut, and he went ballistic. “I can’t believe you did this,” he roared. “We’re going to Nova Scotia!” It was the first time it had dawned on her that as a lawyer she was, as she puts it, “the face of the client.”
Four years later, Henein marched into Greenspan’s office with another bombshell: she was leaving to start her own practice. “It was time,” she says. “I was becoming like a surly teenager.” Greenspan felt sideswiped—it was a breach that would take time to mend—and for months after her departure, whenever a crisis came up, he would storm through the office fuming, “Where the hell is Marie?”
For Henein, the timing was not exactly propitious. With a two-year-old at home, she and Jennings had just bought a house in Forest Hill they could ill afford. The woman known for her strategic savvy had no office, no clients and no savings; when she did find loft space on King Street West, she had to borrow the first and last months’ rent from her parents. Every day her father called worrying how anyone would know she’d hung out her shingle. The answer lay in the one file Greenspan had finally allowed her to take, a Legal Aid case in a murder that had already outraged the city with its wanton brutality.
At first glance, the prospects for Daniel Weiz looked grim. A 22-year-old Israeli landed immigrant, he was one of three young toughs charged with second-degree murder for kicking to death Matti Baranovski, a 15-year-old straight-A student with dreams of becoming a doctor. Weiz had been fingered by two others as the one who had delivered the fatal blow, but Henein zeroed in on the quicksand of their shifting accounts.
For months, she and her first associate, Jennifer Gleitman, sifted through volumes of witness statements, charting the inconsistencies, often with Henein’s son playing on the floor. Breaking for dinner, they would reconvene at her house and work until 2 or 3 a.m., occasionally working in their pyjamas. “There really is no stone left unturned,” says Gleitman, who is now an assistant Crown attorney.
Henein’s brother, who was then in law school after a detour into stand-up comedy, helped her rehearse her cross-examinations and showed up in court to watch the results. Chipping away at the changing stories of Weiz’s two main accusers, Henein managed to lead one into admitting that, whenever he lied, his voice rose—a “tell” on which she proceeded to pounce. She convinced the other to mark all the locations on a crime scene diagram where he had misled police while she spat out the words, “Lie, lie, lie,” in a relentless tattoo. “It was right out of Twelve Angry Men,” Peter Henein recalls. “Pure theatre.”
Weiz ended up the only member of the trio acquitted, and the trial made Henein’s public reputation. Her phone promptly started ringing, and it hasn’t stopped. “Now my dad can relax,” she laughs.
Henein’s courtroom skills have since been recognized by the American College of Trial Lawyers, an exclusive association that has invited only 365 Canadians to join its 5,700-member ranks. Another measure of her stature—and her zealous networking skills—was her election five years ago as president of the Advocates’ Society, arguably the toniest of this country’s legal organizations. These days, when she is scheduled to argue a case, fellow criminal lawyers often slip into the back rows to watch—but for those who expect fireworks, Henein advises them to try TV. “I’m not foaming at the mouth,” she says. “If you’re bellowing at someone, that’s bush-league stuff. My job is to persuade.”
At the Supreme Court—for which Henein helps train lawyers before their first appearance—her reputation for novel technical arguments often draws its young staffers to the visitors’ gallery. Five of her associates are former Supreme Court clerks, including rising star Matthew Gourlay, who spent a year on the staff of Chief Justice Beverley McLachlin and was married in her Ottawa living room. Gourlay was back at the high court with Henein when she was invited to help argue an appeal in a 12-year-old murder case that resulted in a groundbreaking opinion: not only did the Supreme Court overturn the conviction, but it slapped new restrictions on when police can use sting operations that involve a fictional crime boss, known in legal argot as “Mr. Big.”
Some lawyers only take cases they know they can win, but Henein never turns down a client. Like Greenspan, she sees her role as not to judge the guilt or innocence of the accused, but to ensure that legal truth prevails. When she argued the appeal of Marcia Dooley, convicted of murdering her seven-year-old stepson, Randal, in what the judge called “Canada’s worst case of child abuse,” Henein says she felt it was an obligation—“one of those cases where you’re really at your last kick at the can.” Still, her kids occasionally pay the price for such a caseload, bridling against her hypervigilance. “My son calls me the Director of Funland Security,” she says. “You worry about everything, because in this business you see everything that’s awful.”
Many of Henein’s cases never make the papers—or even a courtroom. She has carved out a lucrative niche defending doctors and other professionals before their regulatory bodies. While most criminal law firms subsist largely on Legal Aid, their fees set by the government, the plastic surgeons and other professionals who call on Henein to salvage their licences or save them from sexual assault charges can usually afford her steep rates, which can run as high as $800 to $1,000 an hour. Along the way, she was won a reputation as the ultimate lawyer’s lawyer. When a member of her profession is in trouble, says Paul Burstein, a former president of the Criminal Lawyers’ Association, “Marie’s often the first one they go to for help.”
Two years ago, when Warren Winkler was obliged to take mandatory retirement from the province’s highest court, Henein co-hosted a farewell soirée for him that was not your usual reverential send-off. He walked into the august halls of the Law Society of Upper Canada to find the benchers’ chambers transformed into a spooky twilit jungle. Stuffed, life-size animals peered out from a tropical forest that Henein had trucked in, and African bird calls squawked over the sound system. “I just about laughed myself to tears,” he says. If that effort was a testament to Henein’s chutzpah, it was also proof of how much of a legal insider she had become.
Before Ghomeshi hired her, the highest-profile of Henein’s clients was the province’s former attorney general, Michael Bryant, whose drive home from an anniversary dinner in August 2009 turned into a nightmare encounter that famously left a bike courier named Darcy Allan Sheppard dead. When Bryant emerged from custody charged with dangerous driving causing death and criminal negligence causing death, friends in the legal community rushed to recommend lawyers. Henein’s name was on every list but seldom at the top; his male friends worried she might be too aggressive in a case where he was already being pilloried in the press.
Bryant opted to disregard those warnings, but as he soon discovered, hand-holding was not among the services Henein offered. He compares their meetings to boot camp. “If she thought I was being morose or lethargic, she had zero sympathy,” he says. He recounts that at a key moment in the case, she pulled him aside and hissed, “I’m your lawyer, not your fuckin’ therapist.”
A firm believer in crafting a narrative for each defence, Henein threw herself into fleshing out a storyline that was at odds with the one unfolding in the media. In hers, Bryant was not the cocky aggressor; he was the unwitting victim of a troubled man who had clashed with drivers before. That plot line emerged when complete strangers started calling Bryant’s friends and her office reporting similar encounters with a bike courier who seemed to be looking for a fight. Tracking down the callers, she raced off to take their accounts herself—a hands-on engagement that astonished Bryant.
With footage from every surveillance camera along Bloor Street West, Henein hired an expert video analyst to recreate his fateful drive. Then, homing in on a pivotal 28 seconds—later the title of Bryant’s memoir—she set about dissecting every millisecond in that time frame. To better understand his transmission troubles, she even took lessons in driving a stick shift. That relentless forensic work—above all the testimony she unearthed from drivers who had clashed with Sheppard days or even hours earlier—turned the case in a plot twist worthy of Perry Mason. But Perry Mason would have saved his big reveal for a courtroom ambush. Instead, Henein decided to show her hand, behind closed doors, to special prosecutor Richard Peck, who had been brought in from Vancouver to avoid any conflict of interest.
She agonized over the move, bouncing it off trusted colleagues, including Greenspan. Either her new evidence would convince Peck the case was unwinnable and he would drop the charges, or he would proceed to trial anyway, having seen her trump card. “You were either a hero if it worked,” she says, “or you were an idiot.”
“It was absolutely a gamble,” Peck confirms from Vancouver. “Very bold.” But after reinvestigating her new witnesses, he came to trust her assessments. Eight months after the charges were laid, he announced the Crown was withdrawing them because there was no reasonable prospect of conviction.
Today, Bryant calls Henein the best criminal lawyer in the country, pointing to the fact that she was willing to sacrifice a star turn in the courtroom. “I have no doubt a trial would have enhanced her reputation,” he says.
Could the Bryant case serve as a template for Ghomeshi’s defence? Will Henein attempt to have the charges against him thrown out before his trial? It’s not out of the question. Henein refuses to discuss the case, but in interviews, her associates seem intent on underlining how often she has spared clients the ignominy and expense of a courtroom ordeal. “It’s not like she’s this rabid pit bull,” says Danielle Robitaille, her right hand on the Ghomeshi file. “We resolve most of our cases out of court.”
Henein herself makes no secret of the fact that she lives for the cut and thrust of a trial. When she hasn’t been in court for a while, she admits, she gets as agitated as a junkie: “I need the fix,” she says.
Now Henein presides over one of the hottest criminal law boutiques in the city, a ten-member firm that has also attracted former deputy attorney general Murray Segal as counsel, and some hail her as the likely heir to the superstar mantle of Eddie Greenspan. That success is all the more remarkable in a branch of the bar where, historically, women have not been welcomed by either their colleagues or their clients. As Anthony Moustacalis, president of the Criminal Lawyers’ Association, points out, “There’s traditionally been a macho culture of wanting a tough guy to fight for you.”
Ironically, Henein has emerged as a riveting role model at the very moment when young women are leaving the profession in droves. In 2010, the Law Society of Upper Canada found that while more than 50 per cent of its new members were female, among those who had been at the bar for five or 10 years that number dropped to 35 per cent. In its senior ranks, there were only a handful of women left.
Those statistics echo a larger crisis in the profession: although women still make up more than half of all law school graduates, an alarming number are cashing out after only five to seven years in private practice, just when their careers ought to be approaching liftoff. The Law Society takes that gender brain drain so seriously that in 2008 it established the Justicia Project to promote solutions such as parental leave and flex-time arrangements that might help keep women in its ranks. Seven years later, the numbers have barely budged. “Law firm culture has been slow to change,” concedes Laurie Pawlitza, the society’s former treasurer. “We’re a work in progress.”
That exodus infuriates Henein, but her response is characteristically contrarian. Two years ago, when the Law Society honoured her with its annual Laura Legge Award, recognizing a woman who has “exemplified leadership” within the profession, she took to the stage to question all the hand-wringing. Maybe, she mused, well-meaning efforts aimed at helping women find work-life balance were instead signalling that, unlike men, they had to choose between work and family life; they couldn’t have both. Beneath the antique stained glass of the society’s Convocation Hall, some jaws dropped, incredulous. “I thought, ‘Could you just say thank you?’ ” recalls Martha McCarthy, one of the city’s most respected family lawyers. “But no, not her. She gave them shit.”
Within her firm, Henein has gone out of her way to foster the careers of young women. Until she hired Matthew Gourlay, all her associates had been female, and, without exception, they praise her as a mentor and hard-driving mother hen. When Danielle Robitaille joined the practice seven years ago, she was so terrified she might incur Henein’s wrath during their first courtroom appearance that she was drenched in sweat under her robes. “You’re not getting patted on the head a lot here,” she says. But at 35, Robitaille is now a partner, crediting Henein with giving her space to shine, complete with her own caseload and press clips. Other women lawyers report that Henein has been quick to make time whenever they’ve turned to her for advice. Still, even some of her closest friends admit blanching at her penchant for serving up the unvarnished truth, whether about a flawed factum or an unfortunate haircut.
At the CLA’s first women’s conference in Ottawa last spring, Henein doled out helpful hints to young lawyers on how to build their careers, but Jessyca Greenwood, a 31-year-old with her own Toronto firm, was puzzled that Henein never once mentioned the problem that confounded Greenwood daily: how to manage her fledgling practice while raising two toddlers. Querying Henein later, Greenwood was stunned by her response. “She said, ‘Just do the work,’ ” Greenwood recalls. “The kids will be okay.”
It’s the formula Henein herself followed, juggling appeals for child porn cases with her chauffeuring duties as a soccer mom. She pushed herself through her kids’ younger years, working at home virtually non-stop through her maternity leaves. When her sons questioned her absence, she took them on tours of empty courtrooms, letting them climb into the judge’s chair. Michael Bryant recalls Henein pausing in mid-conference whenever one of her boys called, instantly transformed from merciless inquisitor to solicitous major domo solving a domestic crisis.
Henein has no patience for questions about how she managed it all. “You just do it,” she says. “You’re going to fuck up, but I wish women would stop beating themselves up about not being the perfect wife and mother. It’s all part of the bullshit Cinderella story.” She dishes out the same tough-love brand of feminism in speeches and articles, blaming Martha Stewart and her ilk for their toxic message of perfectionism. Henein may not have answers, but she wants to change the conversation. “Women need to be told to stay in the profession,” she says. “There is a point to this. There is a point to having the vote.”
At a two-day hearing in October that was closed to the press, Henein was expected to argue one of the most contentious aspects of the Ghomeshi case: why the court should give her access to third-party records that may contain personal information about his accusers, including their medical and psychotherapy histories. Those records are ostensibly off-limits under Section 278 of the Criminal Code, a companion amendment to the vaunted rape shield provisions that prohibit a defence lawyer from questioning a sexual assault complainant about her past sexual history. Both were designed to protect female complainants against a long-time bias within the legal system: the assumption that a woman had somehow left herself open to sexual assault. That bias was best articulated in a 1988 lecture by Ottawa criminal lawyer Mike Edelson, which still makes feminists fume. In it, Edelson advised colleagues defending sexual assault cases to “whack the complainant hard” with every available fact that might call into question her integrity or grip on reality.
Henein, who has often appeared on panels with Edelson, is no stranger to those tactics. During one forum nearly two decades ago, she slyly noted that, although a complainant’s sexual and medical histories may be technically inadmissible, in a trial before a judge alone, not a jury—as Ghomeshi’s will be—there was no harm in arguing for their relevance anyway. Even if the argument proved unsuccessful, she pointed out, “Well, oh well, the judge has heard it.”
For a glimpse into her modus operandi, her 2008 defence of former minor league hockey coach Dave Frost is revealing. Frost was charged with four counts of sexual exploitation, allegedly having manipulated his teenage players on the Quinte Hawks into threesomes a decade earlier. Like Ghomeshi, he had already been convicted in the media even before his trial opened in Napanee. On sports pages, he was depicted as a bullying Svengali whose hold over his young acolytes was so creepy that one, former NHL player Mike Danton, had gone to jail for trying to hire a hit man to kill him.
Frost didn’t have high hopes when Edelson, his original lawyer, steered him to Henein, but a couple of months after their first meeting, he walked into her office to find his legal chronicle laid out across her conference room. Photos and character sketches of the key players filled whiteboards on the walls, while every word they’d ever uttered to police or friends on social media was collected in colour-coded folders on her boardroom table. “It was like a movie,” he says.
Frost can still recall Henein pacing the courtroom, snapping those folders with a menacing crack, swooping in whenever a female witness tried to change her story. Danielle Robitaille, a former dancer, helped choreograph every move in the cross examinations. “The whole point,” says Henein’s former associate Margaret Bojanowska, “is to annihilate the witness, really.”
According to the narrative Henein developed for the case, Frost’s accusers were small-town girls, once besotted with his visiting players, who were now colluding to spin accusations they hoped would bring them a payoff. Even before the trial started, she had convinced the judge to lift a publication ban on their names. Then her private investigator discovered evidence on Facebook, including a photo, that showed, contrary to the women’s assertions, they were so close they had even vacationed together. Unearthing video footage of one flashing her genitals for the camera at a party, Henein convinced the judge to allow it as a subject for cross examination because it countered the prosecution’s assertion that the woman had been a naïve pawn manipulated by Frost.
At times, Frost was frustrated that Henein refrained from going directly for the jugular, but she insisted on what he calls “the slow burn.” When he chafed at her obsession with what seemed like some minor detail, she retorted that no detail was too small—or, as it turned out, too lurid. After one woman testified she’d been coerced into giving Frost a blow job, Henein inquired whether she had noticed any medical anomalies in those close quarters. When the witness looked nonplussed, Henein flourished medical records revealing that, after a hernia operation, Frost was left with “a two-inch-by-two-inch plum-sized sac of blood that appears like a third testicle,” as she told the cringing courtroom. “That’s not a tiny mole. A third testicle would be hard to miss.”
Seven years after his acquittal, Frost still speaks of Henein with wary awe. Although he had to remortgage his house and sell his boat and his Jet Skis to pay nearly $200,000 in legal fees—$5,000 a day for the two-week trial alone—he has no regrets. Nor was he surprised to hear Ghomeshi had hired her. “These women better not be lying,” he says of the complainants in the case, “because if they are, Marie will crack ’em open and expose them.”
In social gatherings across the city, I hear the same question: how could a feminist take on Jian Ghomeshi as a client? It’s the sort of question that criminal lawyers parry by rhyming off the bedrock principles of the justice system: the presumption of innocence until proven guilty and the right of every citizen, no matter how unsavoury, to the most forceful defence. But these days, questions about the tactics Henein will wield in defending Ghomeshi are also being raised by some legal scholars. On one blog, Osgoode Hall professor Susan Drummond argues that criminal lawyers not only have a duty to their clients, they also have a larger duty to the justice system as a whole; by whacking the complainant in sexual assault cases, she says, they threaten to bring the entire system into disrepute. In a forthcoming paper called “Whack No More,” University of Windsor professor David Tanovich calls for a change in legal education that will eventually make such defence strategies socially unacceptable.
Where once the legal system seemed stacked against women who dared to blow the whistle on sexual assault—their motives suspect, their past sex lives fair game—there has been a sharp shift in the culture. In this new zeitgeist, there seems to be a distinct unease about the notion of a whip-smart woman defending a man charged with sexual violence. In some of the commentary on the Ghomeshi case, it seems as if Henein too is on trial.
That shift raises the stakes for her as she faces what could be the courtroom performance of her career. For Henein, the whole debate is irrelevant, an utter waste of time. “I am not conflicted about being a strong feminist and what I do in court,” she bristles. “I just don’t feel a need to justify what I do or explain myself.”
That’s hardly an unexpected riposte from a woman who has never been constrained by what others think—one who refuses to be limited by the usual definitions, whether as a lawyer, a mother or a feminist. The answer to Henein’s critics may, in fact, be hanging at home on her living room wall: a neon sculpture in the colours of the rainbow that spells out the words, “You Can Have It All.”
Apologies to Breese Davies, whose name was misspelled in the original publication of this story.