Best Practices: Is Danielle Robitaille the next legal icon?

In her mind, Danielle Robitaille has already pivoted to the next case. The 35-year-old criminal lawyer tells me this on a cold March morning, four days after the verdict came down in the sexual-assault trial of ex-CBC star Jian Ghomeshi. Robitaille, alongside Marie Henein, who hired her as a first-year associate almost a decade ago, trounced the prosecution and won Ghomeshi an acquittal on all five counts. We’ve met for breakfast at The Senator, a greasy spoon a few blocks from Yonge-Dundas Square. Robitaille looks well-rested and is unfailingly friendly. Clasping a cup of coffee, she explains she never has time to revel in courtroom triumphs. “It’s like being a doctor,” she says. “Once you’re done with one patient, you have to walk right back out into the waiting room.”

At the time of our breakfast, though, she was still treating the same patient, with Ghomeshi set to stand trial once more for another sexual-assault charge. And, once again, Ghomeshi’s crack legal team would deliver: in mid-May, he signed a peace bond, promising a year of good behaviour, and in return the Crown dropped the charge. Both wins on the Ghomeshi file, of course, largely belong to Henein, his lead defence lawyer. But it would be a mistake to see Robitaille as merely Henein’s sidekick.

“In most of my practice, I carry my own files,” she says. And it’s been this way for about four years, meaning her days as a green associate are long over. Officially, in fact: in 2014, as a sixth-year lawyer, she became the third partner at Henein Hutchison LLP. Looking back, Robitaille finds it funny that when she first met Henein, and asked for a job, Henein said no.

Robitaille was once a rudderless law student. Halfway through her degree, at Dalhousie University, she had no long-term career goal. Then Robitaille heard about the school’s criminal-law program, which lets third-year students spend a chunk of second semester shadowing a Crown or a criminal lawyer at Nova Scotia Legal Aid. Thinking it looked fun, she signed up.

Robitaille was paired with Brad Sarson, a veteran criminal lawyer. “He was a decent man, deeply committed to his clients,” she says, dipping a hunk of toast into the yolks of her over-easy eggs. He was just as impressed with her. “Danielle had exceptional people skills,” recalls Sarson. “The fact that she did so well dealing with legal-aid clients — most of whom have substance-abuse or mental-health issues, or both — is a testament to that.”

Danielle Robitaille, Lawyer, Henein Hutchison

“I didn’t leave Marie’s side for five years,” says Danielle Robitaille, of her intense training under Marie Henein

Meeting with those clients was, for Robitaille, life-changing. “They were all just terrified,” she remembers. “Most had never stepped foot in a courtroom and, all of a sudden, they were social pariahs. After that experience, I had to be a criminal lawyer. I was a goner.”

Robitaille, however, couldn’t act on this epiphany yet. At the time, in her third year, she was already set to article in Toronto at Cassels Brock & Blackwell LLP, a large corporate firm. Then she had a stroke of luck: Cassels sometimes sent a few articling students to Eddie Greenspan’s criminal firm on a four-month secondment. Robitaille asked to get one of the placements, and did. “But Eddie wasn’t hiring that year,” she recalls, taking a sip of coffee. Meanwhile, she had pulled her name out of the hireback pool at Cassels. “So by the end of it, I still had no prospects and $100,000 of debt.”

Determined to work in criminal law, she asked colleagues for advice. “Everyone at Eddie’s said, ‘You need to meet with Marie. She’s the best lawyer we’ve ever seen.’ That was my first stop.”

It was late 2006 and Henein, who herself had worked with and learned from Greenspan, had been running her own firm for four years. Henein agreed to meet Robitaille. “I think she was skeptical of me because I’d articled on Bay Street,” says Robitaille. “I think she thought I wasn’t serious.” And when Robitaille asked for a job, Henein said she didn’t have an opening.

But Robitaille was stubborn. “I asked every partner at Eddie’s and at Cassels to call Marie and beg her to hire me,” she recalls, laughing at herself. “It quickly turned into a campaign of harassment.”

Henein remembers it well. “I was inundated with calls,” she says. “And they all said, ‘You would be just crazy to pass her up.’” Henein decided to make a position for Robitaille, but first made sure she’d have enough work for a new associate. Within three weeks, she made the job offer.

Then began Robitaille’s training under Henein. “I didn’t leave Marie’s side for five years,” she says. “There wasn’t a phone call she would make where I wasn’t sitting there staring at her.” Henein was demanding, but gave meticulous feedback. “I once wrote a factum for an appeal, and butchered it,” recalls Robitaille, laughing at the memory. “Marie tore it apart. But then she showed me, step-by-step, how she writes a factum. It was so much time and dedication.” Henein could be quite nurturing. In a profession in which young lawyers are often treated as “nameless juniors,” adds Robitaille, “Marie does the complete opposite.”

As a third-year associate, Robitaille had twins (a boy and a girl) with her husband, Mark, a historian and an editor at the Dictionary of Canadian Biography. Finding a way to parent while working late nights and weekends never worried her. “I didn’t think about it,” she tells me, after swallowing a mouthful of potatoes. “Maybe it’s because I have a working-class background.” Robitaille grew up in Kanata, her mother a nurse and her father a construction worker. “I never saw my dad any morning of my life. He was at the construction site by 6 a.m. And that didn’t damage me. I knew he cared. So I never thought I needed to be at home morning, noon and night.”

Robitaille took a one-year maternity leave, and then returned to Henein’s side for three more years. Then, in 2014, she made partner. “It’s almost as important as picking a spouse,” says Scott Hutchison, the firm’s second named partner. “You’re binding yourself to someone, financially and by reputation. But with Danielle it was easy.”

“It was shocking and flattering,” recalls Robitaille, grinning broadly. “And pretty badass.” And she’s lived up to the promotion. In the past two years, she’s made headlines for leading several cases. Most prominently, she successfully defended a police officer charged with sexual assault, and secured a retrial for a man convicted of sexual assault by arguing that he is a “sexsomniac” who committed the act in his sleep and, therefore, should not be held criminally responsible. Henein is proud of how far Robitaille has come. “This is an emotionally exhausting area of law,” she says. “But Danielle doesn’t collapse under the weight of things. She’s a very strong woman.”

So what lies ahead? “In 15 years, she will be one of the profession’s superstars,” says Rob Centa, the managing partner of Paliare Roland LLP, a top litigation boutique. (Once her mentor, he now regularly calls Robitaille for advice on criminal files.) To Centa, her place in the Greenspan-Henein-Robitaille lineage cements her future. “When we look back, it will all make perfect sense.”

Near the end of our breakfast, I ask Robitaille if she wants to become, like Greenspan and Henein, a legal icon. She laughs in my face. “That’s very cute,” she replies, setting down her glass of orange juice. “I just want to do a really great job for my clients, but not because I want to be some sort of titan.” Does she have a take, though, on the media attention or the profession’s speculation about her future? “All this shit’s collateral.”

Danielle Robitaille, Lawyer, Henein Hutchison

Danielle Robitaille
Partner, Henein Hutchison LLP
Year of call: 2007

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


Timeline of a young criminal lawyer

1998: At 18, Robitaille accepts that she will never be a professional ballerina. “I practised after school for years, but still wasn’t good enough.”

1999: Robitaille moves to Toronto from Kanata, to pursue a degree in political science at the University of Toronto, where she meets Mark, her future husband.

2003: She starts law school at Dalhousie University, catching the criminal­ law bug in third year.

2006: Robitaille articles at Cassels Brock & Blackwell LLP and spends four months of her term at Eddie Greenspan’s firm on a secondment.

2007: Marie Henein hires her as a first-­year associate.

2008: Robitaille works with Henein on the high­-profile trial of David Frost, a hockey coach charged with sexual exploitation. After the trial (they won), she decides to get pregnant. “I wanted one big trial under my belt before I took maternity leave.” A year later, she gives birth to twins.

2014: Robitaille makes partner at Henein Hutchison LLP.

2016: Robitaille and Henein win the Jian Ghomeshi sexual­-assault trial. They also draw the ire of some critics for their deep­-dyed cross­ examination of the complainants. Robitaille is unfazed. “If they were aware of the relevant facts and the relevant law, I could convince them that they’re wrong and I’m right.”


Cover of the Summer Issue of Precedent MagazineThis story is from our Summer 2016 issue.

 

 

 


Photography by Lorella Zanetti

Editor’s Note: The Precedent team tries to attend that trial you may have heard of

A certain trial has gotten a fair amount of media attention. It involved a fallen-from-grace radio host, allegations of sexual assault, and a badass criminal lawyer. Perhaps you’ve heard of it.

I’ve read and heard everything anyone could say about this trial — from how the legal system treats sexual-assault complainants, down to the minutiae of how relatives of both the judge and defence counsel work at the same firm. We’re in on the conversation, too. See our profile of Danielle Robitaille.

The exhaustive discussion, however, has overlooked one topic: Old City Hall. Have you been there lately? Have you flashed your Law Society card, skipped security and marched up the imposing central stairs? As a field trip, I took some of the Precedent staff there to watch that trial. After a two-hour wait in the general-public line, we didn’t get into the courtroom — nor the packed overflow room. So we gave up and watched the drama on Twitter.

Precedent staff, Old City Hall

After a failed attempt to see the trial of the decade, Precedent staff took a selfie on the courthouse steps

But the trip was eye-opening: Old City Hall is kind of terrible. There are no signs, no easy-to-find list of cases being heard and no one to ask for help. Keep in mind: I’m a lawyer. And a journalist. And I was on a “field trip” with colleagues. Most people visit court when facing charges, their futures in the balance. That’s already terrifying. Going to Old City Hall shouldn’t make it worse.

And I’m not alone in wishing the law worked better. In this issue, I’m thrilled to announce this year’s winners of the Precedent Setter Awards — six outstanding lawyers in their first 10 years of practice. Whether it’s jazzing up tax law, fighting racial profiling or running for bencher,
 they’re improving law with passion and
 new ideas.

***

Just so you know, I went back to court with my senior editor, Daniel Fish,
on another day of the famous trial.
 That time, we went as accredited media. We flashed our business cards and got preferred access to the courtroom. I know, you probably want to ask me all about it. But all I want to talk about is Old City Hall.

Sincerely,

Signature

 

 

Melissa Kluger
Publisher & Editor

 


Post Script: We’re on Instagram!

We love paper as much as you, but we’re also just as smartphone-addicted. And that means we can’t stop eyeballing the endless stream of photos on Instagram. But we’ve noticed pop stars and athletes vastly outnumber super-awesome lawyers. To correct the imbalance, we’ve joined the photo-sharing app. Follow us at @precedentmag for our latest updates and to see some of our favourite photos.


More from the Summer Issue:

Brian Temins, Lawyer

Law Practice Program Illustration

Danielle Robitaille, Lawyer, Henein Hutchison

How to cook faster

Tanya Walker, Lawyer

The Circuit: Marie Henein tells young female lawyers to “take your rightful place in the profession”


What: The 6th Annual Young Women in Law Charity Gala
Where: Arcadian Court
When: March 30, 2016


“We in this audience cannot help but be inspired by you,” said fifth-year lawyer Gargi Chopra, as she introduced Marie Henein, perhaps Canada’s most famous lawyer, to deliver the keynote speech at the annual Young Women in Law Charity Gala last week. Chopra, the group’s director of events, praised Henein for “running your own firm, raising two kids with your husband and generously dedicating your time to initiatives like this one.”

This warm preamble foreshadowed the tone of the event. Though Henein’s recent courtroom victory in the sexual-assault trial of Jian Ghomeshi has made her a lightning rod for controversy, the audience was enormously receptive to her remarks — which both encouraged women to be lawyers and skewered the currents of sexism that course through the legal profession.

And to illustrate such points, Henein used plenty of humour.

At the top of her speech, for instance, Henein raised the subject of her recent 50th birthday, and riffed on what society expects of ageing women. “A woman’s worth is yet to be measured by her life achievements or her battle scars,” she began. “We are urged to plump and cover and fill those lest someone accidentally discover that your face and a newborn-baby’s butt do not have the same texture,” she deadpanned to laughter.

Henein went on to lament that so many female lawyers don’t believe in themselves. “Even senior lawyers, women who are breathtakingly accomplished colleagues of mine, often talk about their lack of self confidence,” she bemoaned. Once again, though, she finished her point with a joke. “But I have never met a young male lawyer who lacks enormous self-confidence,” she said to more laughter and nodding heads. “I have never heard an accomplished senior male lawyer, upon receiving an award, say, ‘Golly gee, I didn’t think I was good enough.’”

At the end of her speech, Henein said that to become cynical about the justice system is “the worst thing that can happen” to a junior lawyer. “The best lawyers in history have never lost sight of why they went to law school and why they practised law,” she said. “I may be a little tired, but I have never questioned the value of our legal system or my involvement in it.”

Her final statement was a full-throated rally call to the women in the audience. “Take your rightful place in this profession — I look forward to seeing the extraordinary contributions that I know each one of you will make.”


To learn more about Young Women in Law, visit the YWL website.


Have an event coming up? Invite us to your party!


Featured photograph by Valarie Matthews

Should Jian Ghomeshi’s alleged victims sue him for sexual assault?

After car accidents or botched medical procedures, most people know that, in addition to lodging a complaint with police, they can file a lawsuit to ease their suffering. Indeed, the courts are full of injured people suing reckless drivers and negligent doctors. 

But when it comes to sexual assault, most victims have no idea that they can sue their abusers, says Gillian Hnatiw, a partner at Lerners LLP, who specializes in sexual assault litigation. As proof, she points to how the media covered the recent allegations that former CBC radio host Jian Ghomeshi has a long history of sexual violence. The discussion, she says, centred on “whether the victims would go to the police,” as if they had no other legal tool at their disposal. 

Gillian Hnatiw

Gillian Hnatiw, partner, Lerners LLP

And yet, according to Hnatiw, when sexual assault victims do sue their attackers, they invariably prefer the civil system to its criminal counterpart. 

There is one obvious explanation for this preference: in civil trials, plaintiffs only have to prove that the assault is more than 50 percent likely to have occurred. A prosecutor, on the other hand, must establish guilt beyond a reasonable doubt to secure a conviction. 

And in cases of sexual assault, it is particularly difficult to meet that high burden of proof, says Andrew Faith, who served as Crown prosecutor for four years before launching his own civil litigation firm in 2010. In his experience, sex criminals are difficult to prosecute for two central reasons. One is that most victims go to the police well after the offence took place, so there is rarely any forensic evidence. Second, there are usually no witnesses. Most assaults, he explains, occur “without anyone around, so it often comes down to ‘he-said, she-said.’” 

Though he defends the philosophical underpinnings of the criminal justice system, Faith admits that, when he worked on sexual assault cases as a Crown, they could be disheartening. “You want a fair a result, and if the evidence isn’t there, then so be it,” he says. “But, it’s frustrating in the sense that you know the person was being honest, and telling the truth, and remembering horrible things and was becoming emotional on the stand and that, at the end of the day, that still might not be enough.” In that context, he concludes, if a victim is looking for “vindication from a judge, there’s no doubt that the lower burden of proof [in the civil system] is better.” 

Andrew Faith

Andrew Faith, partner, Polley Faith LLP

Some victims also find civil trials therapeutic, says Hnatiw. Unlike in the criminal system, the defendant in a civil suit does not have the right to remain silent. “When I sue abusers, I get to sit in a room with them for seven hours and ask them questions,” she says. “It’s hard to overstate the value of that to a victim: they are forcing their abusers to actually answer the allegations.” 

Another advantage of the civil courts is that victims can pull the plug on the lawsuit if the stress becomes too much to bear. In the criminal system, however, once the Crown moves forward with the charges, “the victim does not have the power to say ‘Stop,’” says Faith. “You have to be willing, if you make a complaint, to go through right to the end because you’ve essentially started a train without breaks.” 

Still, the civil system has a big downside: it costs a fortune to sue someone. Indeed, Hnatiw says the cost of going to trial often exceeds $100,000. (“I couldn’t afford myself,” she admits.) So victims rarely go forward with a lawsuit unless the accused is either wealthy or connected to an institution that is, in some way, liable for the assault. “I’ve had situations where I have to say, ‘What’s happened to you is terrible, but I don’t want to put you through this process to have you come out the other end with nothing.’” 

Also, in both civil suits and criminal trials, victims still have to recount, in painstaking detail, their story of abuse.  

But Hnatiw’s point is not that the civil system can solve every problem. Rather, she wants victims — including those who have accused Ghomeshi in the press — to know they have more than “just a choice between going to police and not going to the police. There is another option.” 

While there is a two-year statute of limitations for sexual assault claims, Hnatiw says “the passage of time should not deter [a victim] from consulting a lawyer as there is almost always a way around the limitation issues.”


Photography: Jian Ghomeshi/Brenda Lee; Andrew Faith/Margaret Mulligan

Why did Jian Ghomeshi hire Dentons?

When Jian Ghomeshi retained Dentons Canada LLP to file his $55-million lawsuit against the CBC, he hired a firm that normally acts for big corporate clients, not plaintiffs, says, David Whitten, partner at the employment firm Whitten & Lublin. 

“I was really surprised to see Dentons on this one,” he says. “I thought he would’ve been better served by going to a so-called employment law boutique, as opposed to a firm that’s better known for their corporate due diligence.” 

And yet, that’s exactly what the radio star did. 

On Monday, Dentons filed a lawsuit that alleges the CBC made a “moral judgment about the appropriateness of BDSM” when it fired Ghomeshi, who hosted the cultural affairs radio show, Q, on the weekend. 

According to the statement of claim, two lawyers are representing Ghomeshi. One is Neil Rabinovitch, a partner who specializes in commercial litigation and insolvency. The other is Tiffany Soucy, a senior associate in the firm’s litigation group, with experience in real estate, employment, defamation and fashion. Both lawyers declined requests for an interview. 

In the claim, Ghomeshi insists any violence in his sex life was consensual, despite now-extensive allegations to the contrary published in the Toronto Star

From the moment the story broke, Whitten says Ghomeshi and his then-public-relations team at Navigator Ltd. (yesterday, the communications firm said it was no longer advising the ex-broadcaster) seemed to have a clear mission: to make a huge splash in the press to distract people from what he’s been “accused of doing.” 

If that’s the gameplan, says Whitten, then “you want to do everything big. You want to make a massive lawsuit claiming an obscene amount of money. And you want to use the biggest law firm you possibly can.” And so, he explains, Ghomeshi might have hired Dentons — one of the 10 largest law firms in the world, with about 2,600 lawyers and professionals in more than 50 countries — to “give his claim some additional clout” in the public eye. 

Indeed, the entire goal of the lawsuit seems to be salvaging his public reputation, he says. In his view, the case has a “limited” chance of success: even if Ghomeshi is honest and never broke the law, the CBC has every right to fire him for his private sex life.  

Unlike race, religion, or sexual orientation, “sexual adventurism” is not protected under the human rights code, says Whitten. “Ghomeshi is really out to lunch if he thought that somehow he could maintain this alternative-type sexual lifestyle and that, once it hit the public, it would not impact his career.” 

Moreover, the value of the lawsuit, which seeks $5 million in punitive damages, is “absurd,” he says. “In Canadian courts, you’ll be lucky to get $100,000 out of [an employer] for the most egregious conduct ever. This is just for shock value.” 


Photo: The Canadian Film Centre