Criminal Law

Jill Presser: passionate, committed defender of human rights, fairness

For 20 years as a trial and appeals lawyer, Jill Presser has defended the underdog.

She has argued at all levels of court for the marginalized, disadvantaged and mentally disordered while challenging social and legal inequities.

“The most important thing for me is fighting for human rights, equality and fairness,” says Presser, principal of Presser Barristers.

Criminal defendants are often from lower socioeconomic strata and are invariably outmatched by the power of the state, she adds. “I love the idea and the reality of being an advocate for the underdog and having the courage and wherewithal to stand up against bigger resources on the other side.”

She has had some notable successes.

Earlier this year, she persuaded the Supreme Court of Canada in R. v. Safarzadeh-Markhali, 2016 SCC 14, that her client, Hamidreza Safarzadeh-Markhali, should receive enhanced sentencing credit for pre-trial custody in the face of “tough on crime” provisions of the Truth and Sentencing Act. The court struck down parts of the Act that limited a judge’s discretion to give more than one-for-one credit for time served to defendants who were denied bail on the basis of their criminal record.

In R. v. Spencer, Presser successfully argued in the Supreme Court that subscriber information held by Internet service providers is private and that police need a warrant for access.

“Spencer was a really important case because the court said privacy is still real — even in our online, digital world, they drew a line in the sand,” she says.

Some of her courtroom victories are less about changing the law, than changing someone’s life.

In R. v. Jack, she persuaded the Ontario Court of Appeal to overturn two robbery convictions because the trial judge didn't properly caution jurors about the weakness of eyewitness evidence used against the defendant.

As duty counsel in R. v. Ghadban, she persuaded the Ontario Court of Appeal to reduce the custodial portion of a robbery sentence for Mahmoud Ghadban on the basis that he made significant progress towards rehabilitation. He got time served and walked free.

Other notable appeals include: R. v. Conception (Supreme Court of Canada: dealing with treatment orders in forensic psychiatric hospitals); R. v. C.S. (Ontario Court of Appeal: dealing with DNA orders made against young persons); R. v. A.T. (Ontario Court of Appeal: concerning a judge’s failure to correct the Crown’s inflammatory remarks about the defendant); R. v. Delchev (Ontario Court of Appeal: regarding a Crown plea offer that threatened the client-lawyer relationship.)

As a member of the Inmate Appeal Duty Counsel Program, she has acted, essentially pro bono, for scores of prisoners making appeals. The sessions are intense, with defence lawyers assisting more than 10 inmates a day.

A personal highlight is her teaching work. Presser is an adjunct professor at the University of Toronto faculty of law, where she is leading an upper-year seminar on the law of homicide.

Her students fill her with optimism for the future.

“Teaching this really bright, keen group of students makes me think in a deeper more fundamental way about the whole project of criminal law,” she says.

Presser also contributes to legal education programs for lawyers and judges through the National Judicial Institute, the Law Society of Upper Canada and Osgoode Hall. She regularly publishes case comments and articles, some of which are cited by the Supreme Court.

She also has a long history of helping people with mental health issues.

For eight years, she was a member of the Consent and Capacity Board, the adjudicating body for people challenging mental health-related detention and treatment orders.

In addition, the Court of Appeal often appoints her as a friend of the court in cases concerning mentally disordered appellants. She frequently appears in front of the Ontario Review Board for defendants found not criminally responsible due to mental illness.

Presser served as a staff lawyer for the Hon. Stephen Goudge on the Commission of Inquiry into Pediatric Forensic Pathology in Ontario, which investigated wrongful convictions due to errors made by pathologist Dr. Charles Smith.

The inquiry was a sobering reminder that “due process is not an empty formality but a real, living and essential protection for real people, their lives, families and liberty,” she says.

Born and raised in Toronto, Presser took up post-secondary studies at Montreal’s McGill University, where she earned a Bachelor of Arts and Bachelor of Law. She was called to the Ontario Bar in 1997.

Presser was always drawn to criminal law, with its Charter challenges, human drama and mixture of theory and practice. “It seemed to be the place that had everything I cared about and everything I wanted to do. And I still feel that way.”

One of her biggest challenges has been balancing her life as a wife and mother with the demands of the profession. “It’s extremely demanding because our clients get arrested at all hours of the night or day,” she says.

She scaled down her practice for 6 1/2 years when her two girls were very young, working as a part-time Crown prosecutor, writing factums and doing research at home, mainly related to appeals.

When she returned to full-time practice, her appeal work continued to grow to more than 60 per cent of her caseload. “I really love doing the appeals,” she says. “You’re where the law and social policy and legislative agendas all intersect, so you’re often really at the forefront of the law.”

But what most distinguishes Presser is her passion.

“I probably tend to care too much about the cases that I work on,” Presser says. “By the time I get up on my feet in court, nobody listening is ever going to ask themselves whether I care, whether I’m prepared. I’m always over-prepared, 1,000 per cent prepared, because I’m really serious.”

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