♪ >> Hello and welcome to another edition of Canada Files.

I'm Jim Deeks.

Our guest this week is Brian Greenspan.

Probably the best-known criminal lawyer in Canada and one of the most respected litigators in the country.

The famous clients on Brian's list over the past 40 years, reads like an international who's who .

Not that Brian seeks them out.

They just come to him.

It's not hard to understand why.

Brian's knowledge and respect for the law is always worth listening to.

>> Brian, thank you for joining us on Canada Files .

>> My pleasure, Jim.

>> I've always been intrigued that you chose criminal law and defence despite of all the other disciplines in the legal profession.

Which, if you'd chosen one of the other ones, might have made you wealthier than you are today.

but not as well-known.

Why did you decide?

And your brother as well, the late Eddie Greenspan.

Also a prominent defence lawyer Why spend a career defending people and organizations who have been accused of criminal activity?

>> It's not that criminal law was genetic but it came close to being that.

But certainly part of our family history.

Our father came to Canada as an immigrant when he was 13.

By the time he was 24, he had a BA in law from the University of Toronto.

He started at Osgoode Hall but the war in 1939 interrupted that.

As a result, he never completed law school.

Our library at home was filled with the biographies of the great criminal lawyers.

Clarence Darrow, the great English barristers.

It was all litigation, primarily criminal law-oriented.

Our father passed away when we were children in 1957.

His legacy was our profession.

Part of our education as children, and as we grew up, was social commitment and a bit of anti-authoritarian, the state has the resources.

The individual needs the defence.

Without being overly romantic, we somehow found ourselves with the finger in the dyke , holding back the forces of the state in some fashion.

Trying to equalize and balance the system.

For a criminal justice system to operate effectively, the accused must have effective representation.

The state has the resources, the accused needs at least a strong voice in the system to attempt to get justice.

>> Aside from the influence of your father who died when you were a teenager.

>> When I was 10.

>> Obviously he had an influence on you.

Aside from him, was there a mentor along the way?

Someone in law who inspired you to pursue that career?

>> Both Eddie and I were influenced by the litigators that we watched.

The great lawyers: G. Arthur Martin, Joseph Sedgwick, Charles Dubbin.

Who were the generation that preceded us.

J.J. Robinette.

All of them has their roots in the criminal law.

Some of them went onto other areas of litigation.

They were rooted in the criminal justice system.

We watched with great respect and hopefully learned something from their stories.

>> You and probably every other defence lawyer in North America has been asked this question hundreds of times during their career.

How can you defend people you know, or certainly suspect, are guilty of what they've been charged with?

>> First of all, you seldom know.

Certainly I've been asked the question at virtually every cocktail party I've been at in the last 45 years.

You seldom know and if you do know... you have to understand that most people who accept, admit guilt or who are overwhelmingly guilty plead guilty.

Our function and rule becomes one of putting the other side to the court in terms of trying to mitigate sentence-- what the outcome should be for their wrongdoing.

Where it's a trial, not-guilty, there is an overwhelming importance in our process of justice.

The prosecution in Canada, in every common law jurisdiction including the United States has got the task of proving guilt beyond a reasonable doubt.

That's not just a general theory.

It's what makes the process work.

Unless that burden is satisfied, the person is to be found not guilty and be free.

If you relent and permit that burden to be relaxed, we risk more wrongful convictions than we currently have and we have too many, as it is.

So the adversarial process, trying to find the truth and find justice is dependent upon a vigorous defence.

And proof beyond a reasonable doubt.

>> Have you won a case where your client was fully acquitted, or had his, her, their sentence or punishment reduced a lot, where you know in your heart, that perhaps the verdict wasn't fully deserved?

>> I think not.

I hope that doesn't surprise too many people.

First, punishment wouldn't have been fully deserved unless the system proved their guilt beyond a reasonable doubt.

Obviously, in the acquittal situation, it didn't.

Therefore the system owes that person the opportunity to walk out the door free.

That's what our justice system is about.

Not making mistakes.

If we're going to make mistakes, err on the side of an acquittal.

Not on the side of a conviction as we often do.

That's one part.

In terms of punishment, I find incarceration overly-emphasized throughout most of the world, particularly in the US.

Which is the most overly-incarcerated nation in the common law world and any democratic country.

And in the free world.

The US uses incarceration as one of its primary tools.

In Canada, we are more consistent with incarceration in Europe where our statistics are very similar to France, Germany, and slightly below the United Kingdom.

But the rate of incarceration in the US exceeds our rate by 5 - 6 times.

>> When a client does tell you the truth when you first interview them, do you then sometimes refuse to take the case knowing that there's not a lot you can do for that person?

>> No, I don't think that's our role.

It may well be, the strong recommendation is we can do better for you if the truth is, that you're guilty of that offence or a lesser-included offence.

But you're guilty of some criminal act, what we can do is try to negotiate a lesser offence, a mitigated sentence, something that will be helpful to the person in the long run.

That's a very important element of what we do.

If the person says no, I want to proceed to trial, then it should be understood that it's unlikely that the person can ever take the stand.

They'd convict themselves if they told the truth.

Again, they're entitled to the prosecution being required to prove the case beyond a reasonable doubt.

>> You've mentionned some of the differences between our system and America's.

Which has the better system?

From a legal defence point of view.

The Canadian or the American system?

>> They're very similar in structure and nature.

They're based upon... the Americans call it the Anglo-American system.

We call it the British system of justice.

In many ways, a process that operates in a similar fashion.

We've embedded within our system a number of aspects that are fairer to the accused.

Since the early '90s, a hallmark judgement by Justice Sopinka, in the Supreme Court of Canada.

A case called Stinchcombe .

We have constitutionally mandated disclosure well in advance of making any significant decision.

>> By disclosure, you mean the prosecution laying out the facts they have at their disposal.

So that you understand what their case is based on.

>> Right.

We know the case to meet.

But not only laying it out.

We have to get every toxicology, pathology report.

Every photograph that was taken.

Every SMS message that was intercepted.

Everything that they have, or will rely upon that's relevant to the case.

It's got to be disclosed well in advance.

We don't set dates for preliminary hearings or trials before we have full disclosure.

That gives us an opportunity, first of all, to discuss with our client that they're inevitably going to be convicted because the case is so over-whelming.

Or to provide the opportunity to see what the defence will be.

So our system of disclosure-- providing this material is done well in advance.

Not near the end but at the beginning of the case.

There can be no ambush.

In America, there's not quite an ambush but it can be delayed until it's more difficult to make full answer and defence .

>> Who would you rather defend your case to-- a judge or a jury?

>> It depends on the case.

Certainly a lot of cases are based on highly-technical legal arguments, as to the admissibility of evidence and after the evidence is in, as to whether the defence... self-defence is a complex defence.

Provocation can be complex.

There are certain defences that have a legal element that in many situations, are best dealt with a judge, without a jury.

A judge has to give reasons.

Juries don't give reasons.

Juries give a verdict.

The reviewability of a jury verdict is much more difficult.

Because all you're basing it upon are the instructions that were given by the trial judge to the jury.

So you have to show that the instructions were flawed.

When we have a judge alone, they give reasons for judgement.

Their reasons have to be sound in law.

They expose themselves through their reasons as to whether their logic has been flawed or they've relied on evidence they ought not to.

Or they made a significant legal error in terms of the application of the law to the facts.

>> Let's talk about some of your high profile cases over almost 50 years of practice.

Picking a few is not an easy task.

As I said in my introduction, your client list reads like an international who's who.

There's one case I'd love to ask you about but I can't because it's in process now as we speak.

I'll bring up these names.

Can you briefly describe what the charge was... what your defence and the verdict was, in each of these cases.

>> I hope you mention a couple I win!

>> I think you've probably won all of these cases.

I don't even know if you've lost a case!

The first is a lady now deceased--Cathy Evelyn Smith.

>> Cathy Smith was a fascinating character.

She was the woman charged with the murder of John Belushi.

Arising of what was the alleged injection of a speedball at the Chateau Marmont.

>> A heroin concoction.

>> She was a Canadian, returned to Canada after an unfortunate interview with the National Enquirer .

With a headline indicating, "I killed John Belushi" which was her candid interview with the National Equirer at that time.

She came to Canada.

The US sought her extradition on a murder charge.

I acted for her on resisting the extradition to the US on a number of levels.

At the time, the prosecutor in Los Angeles County, was a very conservative prosecutor who only wanted her back to the US on a murder charge.

We ran this case up and down the courts for several years.

During the course of that, the prosecutor changed to a more liberal democrat.

All of a sudden, negotiations became available.

Howard Weitzman, now deceased, was our counsel in LA.

Who had recently won the DeLorean case back in the early '80s.

Howard negotiated the result of an involuntary manslaughter.

Once that was done, with a reasonably short period of incarceration, we permitted her to return to the US.

>> Naomi Campbell, the British supermodel.

>> It's interesting...whenever I have a case of some profile, and the American media mention my name, they mention it with at least two cases attached to it.

Naomi Campbell and Justin Bieber.

Two of the least significant criminal charges I've ever been involved in, in my career.

The allegation against Naomi-- absolutely a charming woman, was a simple assault.

As was Justin Bieber's case.

The results were absolute discharges.

Which in Canada is a disposition where there isn't a criminal conviction.

There is an acceptance of responsibility.

But no criminal record that results from it.

Both of them had that disposition in their cases.

Having said that, it's interesting that my legacy will be two common assault cases.

>> Here's a relatively tragic case, I think.

Rob Ramage, a well-known NHL hockey player.

Take the story from there... >> Rob and his best friend, Keith Magnuson.

They were here for a funeral relating to the head of the NHL alumni association.

They were president and vice-president of that alumni association.

Leaving the wake after the funeral, there was an accident in which Keith Magnuson was killed.

>> Keith was a former captain of the Chicago Blackhawks.

A very high profile player, certainly in Chicago.

>> Both of them.

Rob with the St. Louis Blues.

Keith with the Chicago Blackhawks.

Both wonderful people.

Very close friends and their families were close.

Blood alcohol... there wasn't a test because he was severely injured.

A blood alcohol sample taken at the hospital led to charges of criminal negligence causing death and dangerous driving causing death against Rob.

The case represented a very important conflict between science and human observation.

There were scores of people who attended the reception after the funeral who spoke with Rob.

Said he was perfectly sober.

Didn't in any way, demonstrate any signs of impairment.

Was verbal and engaged.

These were all reputable people.

People who took the stand at the trial to say, "I saw him, observed him."

"He demonstrated no signs of impairment."

It was a judge-alone case, without a jury in which the verdict was a guilty verdict, based upon the blood-alcohol sample.

Not based upon anything other than that.

>> Was that a fair verdict?

>> We did review it in the Court of Appeal.

It was upheld by that court.

Can I disagree with the verdict?

Yes.

I thought the outcome was not the one I wished for.

I thought there was a reasonable doubt.

Nevertheless, that was the verdict.

>> Kevin O'Leary, who our audience would know, as the self-styled Canadian tycoon, on Shark Tank and Dragons' Den tv series.

Tell us about that case.

>> It wasn't Kevin's case.

It was Kevin's wife's case.

Linda O'Leary.

Kevin was a passenger on a boat in the Muskoka area.

>> On Lake Joseph.

>> Just north of Toronto.

>> Cottage country.

They were coming back from a dinner party to their own cottage.

When they came in contact with a boat and two people were killed in that boat.

This is a charge that should never have been laid.

To this day, shocking that it was.

In my view, the recommendation of the police should not have been to charge.

In fact, the process of vetting the matter by the prosecution was flawed.

There was never a reasonable prospect of conviction.

Linda O'Leary hit a boat that was sitting in the middle of a lake without any lights.

There was video camera footage that demonstrated that it was a dark night, and no lights on that boat until after the collision.

After which, the lights of the boat that was sitting there came on.

Not only did the video cameras demonstrate that absolutely, there were other observations by the O'Learys' son and a number of friends sitting at the cottage.

Because they were approaching the cottage at the time.

They saw the lights of the other boat come on a good 30 seconds after the collision.

After they heard the collision.

That was confirmed by the objective footage from the surveillance cameras.

That was not only a tragic accident.

If fault is to be ascribed anywhere, it was to the outrageous conduct of people who would sit in the middle of a lake with the lights off star-gazing.

In order to see the stars more clearly.

It literally couldn't be seen until the two boats collided.

>> Linda was fully acquitted.

>> Yes.

All of the theories... every single factual finding was made in her favour.

Every single legal finding was made in her favour.

This was not a near win.

It was an overwhelming victory.

>> In your 45 years of practice, what's the most interesting and rewarding case you've been involved with?

>> I can't isolate one.

There are some cases that I'm very proud of.

Because a new principle of law was established.

They would be the appellate cases.

Appellate law was very much a part of my practice and arguing cases in the Ontario Court of Appeal and the Supreme Court of Canada.

I've probably done 1,000+ appeals during my career.

I'm very pleased that I'm associated with some important principles that had staying power.

Cases that took place 20 - 25 years ago are still cases to which my colleagues and I refer when looking for the principle.

So I'm proud of those cases.

And my involvement and that I was counsel on those cases.

Every time a person is acquitted where the Crown has not established its case beyond a reasonable doubt whether they came close or not, if they're acquitted properly, then it's a case to feel strongly and positive about.

>> You've been named as one of Canada's top 25 lawyers several times during your career.

>> I'm not sure top 25 lawyers.

They called it the 25 most influential.

I probably reject that as being I wish I was more influential.

on occasion.

>> You got the honour and it's happened more than once.

You've served on numerous legal profession committees and boards.

As you mentionned, you've had an influence on the law itself in these 45 years.

So did your brother, Eddie Greenspan.

A very successful defence lawyer.

Who died 7 - 8 years ago.

You mentionned your sister, Rosann, who has had a very significant career as a law professor at the University of California.

The three kids from Niagara Falls.

Not a rich or prominent family.

It's quite a story.

You must be very proud of the influence the three of you have had in these last 50 years.

>> Thank you for that characterization.

It's the nature of our country.

Our country is one of immigrants.

That's how we started.

The next generation is meant to succeed in a more profound way than the immigrants that brought the family to Canada.

I think part of what this is about is having a passion.

For justice and the justice system.

For being committed in your life to that passion.

>> I'll ask the standard closing question on Canada Files .

From a legal point of view, what does being Canadian mean to you?

>> Hopefully I expressed part of that during our discussion.

It is commitment to a progressive democracy, ensuring that civil human rights of our community are protected.

Ensuring our democracy is strong and vibrant.

That is fulfilled in a commitment to a criminal justice system.

And the proper operation of the administration of justice in Canada.

>> Excellent answer.

Thanks so much for sharing your thoughts with us.

Continued success with your career.

Which I expect will go on for another 50 years.

>> I'm hoping.

Thank you.

>> Thank you for watching.

We hope you'll join us again on the next edition of Canada Files .

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