When a Client Dies: Grief and Criminal Defence

Maybe this topic surprises you. And I admit that the idea to write about it certainly surprised me, too.

After all, lawyers are known to be rather un-fuzzy in how we work and navigate interpersonal interactions. And defence lawyers are especially often painted in a rather harsh and one-dimensional light.

We represent people accused of grizzly crimes. We doggedly cross-examine witnesses at trial to test the Crown’s case and secure our clients’ acquittals. And if our client is deemed guilty, we advocate for sentences that many members of the public (and sometimes the judiciary) deem unacceptable. We do the legal work that many of our peers label as undesirable and maligned; labels that are also given to our clients by society at large.

Our clients are also people who have likely burned at least a bridge or two with their family or community. Some are literal islands, with no support to speak of until we show up as their privately retained or government-provided advocate. To be perhaps the last person able and willing to help someone without judgement in their worst moment is a specific kind of responsibility to carry.

I’ve lost track of how many people I’ve helped whose bail plan relied solely on non-profit resources because they had no money, and nobody to call because the people in their lives were also living in absolute chaos due to violence, poverty and addiction, had gone missing or were dead.

They were born into chaotic circumstances: removed as an infant or toddler by CFS, bounced around in foster homes and suffering innumerable abuses by people who were supposed to protect and support them, and ultimately left discarded by their government-paid guardians at age 18 with no life-skills or supportive connections to speak of. And that is just scratching the surface of what many clients have shared with me regarding their upbringings.

On the other hand, some clients have had the benefit of all the support and resources one could hope for when facing a criminal charge, and use them to their benefit. And sometimes, our clients regardless of their life experiences refuse to engage with others in pro-social ways. We defend them nonetheless, because they have a right to a robust defence and zealous advocacy.

We agree to help them because we took an oath to uphold justice for them and everyone subject to Canadian law. I consider that an enormous privilege and responsibility, as I know many of my peers do, too. But defence lawyers, like our clients, are ultimately human and Death remains difficult to face regardless of the context.

As an individual, I’ve had an intimate relationship with Death throughout my life. I experienced grief and loss from a young age, and witnessed my mother go through it repeatedly as I grew up with the passing of a close friend whom I considered a second mother, the death of that friend’s husband a month later, and then my maternal grandfather’s passing, whom I’d always considered a father-figure, when I was 17 years old.

I also experienced bouts of deep depression as a child, and attempted suicide in middle school. I am grateful that my parents witnessed my distress and were able and willing to get me mental health counselling. I’ve also experienced friends dying from overdoses, and I’ve intervened in two separate attempted bridge-jump suicides.

In 2017, I took a Palliative Care volunteer course where I learned about the psychological, emotional, physical and spiritual elements of grief, and was shown how to walk with someone who was dying. I took the course because I’d already experienced Death or near-Death so many times I figured maybe I was meant to be a death doula: someone whose job is to help a terminally ill person prepare for and come to terms with their death.

However, I chose to pursue law instead.

And finally, in 2022, I would directly encounter and grapple with Death when I articled in Northern Manitoba. I knew it was an eventuality during my legal career, but I hadn’t expected it to happen that soon.

Flung into the deep end with no prior practical criminal defence experience or knowledge, I learned about adjournments, courtroom etiquette, completing Consent Releases, dispositions and running contested bail applications, and how to offer immediate legal information to people freshly arrested and detained by police.

I learned how to do a bail planning interview in 15 minutes or less, and juggle the expectations of the people I was helping, of my principal, the Manitoba Law Society, and the ones I had of myself. I was slowly but surely learning criminal law. However, I had yet to experience a client dying, until I met Grace.

Grace was an Indigenous woman accused of several serious charges, and the Crown wouldn’t consent to her release. So I helped her create a bail plan for her Judicial Interim Release application and hearing. The application was granted, and she was released on several strict bail conditions including attending treatment and residing with her common-law partner.

Some time later, I was in the shower after work and mid-shampoo, I received a phone call on my work phone. I answered it, because I was on-call and expected to answer the phone ASAP to take in-custody calls.

I assumed the call was from someone newly arrested, but the caller wasn’t a detained person. It was a family member of Gerald*, a man whom I’d helped get bail a few months prior. Unfortunately, this family member told me Gerald promptly went AWOL down south in Manitoba after his release from jail, and a warrant was issued for his arrest and detention.

Gerald’s family member sounded distraught and asked me if I’d heard from him. They were worried because he had serious and potentially deadly addictions-related health issues, and learned a few days earlier from local police that he was wandering around drinking hand sanitizer late at night in a dangerous area of town.

Additionally, they explained their entire family was in great turmoil, because several family members had died of addiction within a matter of months, including Gerald’s sister, Grace*. Confused, I clarified Gerald and Grace’s connection and this relative repeated they were family.

I could feel the bottom of the tub slowly crumble beneath me. All my knowledge and experiences of intergenerational trauma as an Indigenous person myself came crashing over me. I felt guilt, shame, horror and sadness all at once.

I expressed my condolences, and that I was sorry to hear about Gerald’s condition and that Grace had died. The family member thanked me, and told me they couldn’t understand why someone would help get Grace out of jail when what Grace really needed was treatment for her long-standing addictions. They wondered out loud whether Grace would’ve not overdosed if she hadn’t been released from jail.

I swallowed back tears and told them I was deeply sorry for all the deaths they were experiencing in their family, and I would let them know if I heard from Gerald in the next few weeks. Ultimately, I never saw Gerald or heard from that family member again.

However, after that phone call and in the moments between being slammed with work tasks, I spent almost every day wondering whether Grace’s family member was right. Would Grace still be alive if not for me helping her get out of jail? Why did she die? Was this even partially my fault? How do I mourn someone I only briefly helped and knew?

Here’s the thing: Deep down, I logically knew and still know Grace’s death wasn’t my fault. And I wasn’t ever angry at this family member for asking that question; they were grieving and looking for answers for why their loved one died.

And as my career progressed over the next several years, I heard of more instances of my criminal defence peers’ clients dying by violence, suicide, or accidental overdoses. Often, I’d witness the deceased person’s lawyer find out about their client’s death during recorded court proceedings. I didn’t learn how to navigate grief in front of an audience of strangers, colleagues, or superiors in law school. Is that something law schools teach? How did they cope with this loss?

And I started to wonder if other lawyers or articling students felt similarly to me in the face of our clients dying. Grace and I only knew each other for a few weeks. She disclosed a lot of trauma to me in the short time we’d connected, and I sincerely hoped she would get treatment and have an easier time out of jail this time around. But what about the lawyers who’d known their clients for months? Years? Decades?

Like Death, criminal law is polarizing: It demands that we witness the absolute despairing horror and unprecedented miracles inherent to the human condition. I know it sounds dramatic and perhaps hyperbolic, but if you’ve felt it, you know what I mean.

We must constantly remind ourselves why we’ve chosen to practice criminal law, while holding out hope for a better and more just future for our clients, ourselves and society at large.

I often describe my choice to be a lawyer as one where I have “forfeited the right” to certain things, like feeling shock, holding judgement and living a low-stress life. I willingly chose this line of work. I honour that choice by facing the hard parts head on, with courage and conviction, including when a client dies.

But it’s still hard.

And if you’re like me, you may have wondered what kind of future your client could have had if things had been different: what if they had had a stable home, or safe adult in their lives as children or youth? What if they had finished their GED? Got their kids back from CFS? Repaired their relationships with family and themselves? Found healthier friendships and partnerships? Gone into remission with their addiction(s)? Taken their first vacation? Or achieved a litany of other milestones many people unintentionally take for granted.

You may also second guess whether it’s okay to acknowledge that losing a client hurts on some level, even if we didn’t know them for very long. You are not weak or inept for feeling the sadness inherent to a client’s death, even when society has labelled them as abhorrent or a lost cause.

You might wonder how to show up as a person who cares, too: do we send their family a card? Give their partner a call? Attend the memorial or funeral? What is appropriate according to the Law Society and our professional ethics? Should it matter, when we are ultimately grieving a human’s passing?

We may also grapple with how Death shapes our perception of life and how we choose to practice law. We may question our role in society when we realize that nobody is immune to Death, and acknowledge the reality that Death or the threat of Death is a large reason why we have careers in the first place.

There’s also the practical aspects of Death to deal with as a deceased person’s lawyer: what do we do with their property seized upon their arrest, if they had any to begin with? Is the process of closing their file, returning documents to their family, and storing the client’s file away for 10 years the same as when a client is still alive? These processes and questions may feel sterile or cold in the face of grief and may bring it up all over again. I know it did for me.

When I first navigated this type of career-specific grief, I realized mourning and coping with these hard feelings is similar to the way I grieved the people I’d lost throughout my life.

So I pulled out the toolkit I’d learned to make through my Palliative Care course and the decade’s worth of therapy I’d attended as a child and young adult.

I talked to my friends and family, gave myself the permission to say no to extra hours at the office or doing favours or errands. I journaled, spent time outdoors, sang karaoke, took a dance class, followed a gym routine, ate healthily and minimized alcohol consumption. I treated myself the way I would treat my younger self when I was scared and confused by Death: with compassion and patience, because grief is complex and there’s often no timeline or neat box within which we can hold it.

There were occasional moments where I felt guilty for having the luck and privilege of accessing these supports, after witnessing so many people who could not do the same. After all, I’m not special or different from anyone else. We all deserve those things.

*Note: All names used in this article have been changed to respect individual privacy.