An Interview with Boris Bytensky

Boris Bytensky has argued several high-profile cases, including defending the perpetrator of the Toronto van attack. As a partner at Bytensky Shikhman Criminal Lawyers in Toronto, his practice primarily focuses on defending individuals charged with committing criminal offences. He is also an Adjunct Professor in Trial Advocacy at Osgoode Hall Law School and an executive of the Criminal Lawyers’ Association.

Initial Bay Street Experience

Bytensky originally wanted to work in sports law. He began his career at a prestigious Bay Street firm with a sports law department. However, Bytensky was tasked with general corporate work, which “wasn’t quite the specific path” that he wanted to pursue.

Despite leaving Bay Street early in his career, Bytensky’s experience in a large firm helped him run his own practice. Bay Street taught Bytensky how to exercise due diligence and pay attention to detail. “I think working in a large firm helped me quite a bit in terms of the way I organize things. Bay Street definitely gave me many skills that translated well to what I do even though the direct legal substantive issues are very different.”

Switching Gears at An Early Stage

Bytensky opened his own practice to help clients with a broad range of legal issues. His fiancée at the time, who is now his wife, was heavily into criminal law and “her work seemed a lot more interesting” than his. After a few years, Bytensky decided to specialize in criminal law.

“It took me about 3 or 4 years to pare down my areas of practice to much more of a criminal law focus than it was initially,” Bytensky explains. Originally, he used his Russian fluency to provide legal services to the Russian community in the Greater Toronto Area. “There weren’t a lot of lawyers that were servicing that area and that’s what I originally set out to do.”

Transitioning from corporate to criminal law wasn’t easy. But Bytensky’s hard work, with a bit of luck, proved to be a recipe for success. He even managed to win his first trial. It was a drinking and driving case where his client refused to provide the police officer with a breath sample. “It was a miracle I actually won my first trial,” Bytensky quips. “I think it’s more good fortune than good skill when it comes down to it.” But as he gained more litigation experience, Bytensky’s skills improved. He didn’t need to rely on luck as often.

An important lesson from Bytensky’s experience is that you can switch career paths if you don’t enjoy what you are doing. But Bytensky emphasized the importance of making changes when you are young: “It’s a lot easier to change when you’re 24 years old and 25 years old than it is when you’re 10 years in with kids and a mortgage, so at that point it was a lot easier to sort of switch gears.”

The Importance of Your Role in a Client’s Life

Bytensky’s motivation for specializing in criminal law was the nature of the client relationship. “I do enjoy the litigation aspect of it,” Bytensky admits. “But I’d be lying if I said that that was the reason I wanted to do it at the time. I didn’t do it so I’d get more time in court.” The unique client relationship is what motivated Bytensky to specialize in criminal law. “People literally place their freedom in my hands. It’s an enormous responsibility. If you do your job well, somebody may stay out of jail, somebody may not get deported.”

A Fear of Public Speaking Should Not Stop You from Pursuing Litigation

Bytensky is a strong believer in finding work that interests you. One hurdle in criminal law is overcoming the nerves associated with public speaking. The job requires extensive periods of time in court. But Bytensky believes this fear can be conquered.

“If you really like what you’re doing - that’s the key. If you enjoy what you do, if you like criminal law, then you’ll get better at it,” he remarks. Bytensky thinks concerns over public speaking can be improved upon if you work at it. He wouldn’t advise anyone with an interest in criminal law to neglect it due to a fear of public speaking.

Bytensky also addressed that some of our fears stem from imposter syndrome. These fears stay with many lawyers throughout their careers. Even experienced lawyers sometimes experience imposter syndrome, including Bytensky, but it can be overcome: “You have to get over it. If you weren’t good enough, you wouldn’t be where you are. Take steps to make yourself better and don’t just sit on your laurels.”

How do you get over fears of public speaking? Bytensky recommends taking trial advocacy courses in school and attending the Intensive Trial Advocacy Workshop at Osgoode. He also recommends joining the Criminal Lawyers’ Association, which offers educational programs and mentorship opportunities for law students.

Defending the Perpetrator of the Toronto Van Attack

Bytensky defended the perpetrator of the Toronto van attack. He argued the perpetrator was not criminally responsible for his actions. Although the perpetrator was held to be criminally responsible at trial, Bytensky would not hesitate to make the argument again.

“This was never a case about whether he did it or not, that was acknowledged from long before the trial even began, and the entire focus on the case was whether he was criminally responsible for his actions. I took the position through the entire case that he wasn’t. That wasn’t the result of the trial–obviously Justice Molloy came to a different conclusion. But I stand by my advocacy. And I think that every lawyer who does challenge a case can’t be bothered by the fact that there’s a factual guilt in some of these cases.”

Being mindful of the victims was a critical aspect of Bytensky’s decision to take the case. “If you do take on a high-profile case that is going to attract a lot of people who are obviously not siding with you, then do it sensitively but do it fearlessly. And when I took on this case, I tried very hard to be very sensitive to the victims … The victims in the Toronto van case are all completely innocent and they had their lives completely changed as a result of the actions of one individual. My decision was that this had to be done as sensitively as possible to the victims. But having said that, I can’t do my job if it’s just based on popularity. You have to be fearless; you have to do everything you possibly can within the balance of professional ethics to advocate for your client’s position. And I think we did that in this case.”

The Criminal Justice System Only Works When Everyone Respects It

Bytensky believes that everybody deserves a defence: “If we only defended people that we liked or if we only defended people that did socially acceptable things, then frankly it wouldn’t be a very large criminal law bar… Our system only works if everybody respects it,” he continues. “If I challenge the propriety of a search and I do so successfully, while that may set a person who’s factually guilty free, it hopefully works to improve the system going forward because presumably the police won’t do the same thing next time. The entire system only works if you challenge individual examples of impropriety.”

People often ask Bytensky how he feels about defending people who are guilty. But for Bytensky, the challenge is defending people who seem innocent. “The cases that I’ll remember until the day I die are the ones where I wholeheartedly believe my client to be factually innocent,” he explains. “You have a job to do and if you fail and the court finds that your client is guilty, they’re going to go away sometimes for very long periods of time.”

Essential Skills For A Criminal Defence Lawyer

Firstly, reading the law on a daily basis is valuable practice for accurately identifying legal issues and also helps you keep up with the latest cases. According to Bytensky, a clear understanding of legal principles is a necessary skill for criminal lawyers. A defence lawyer’s ability to examine and cross-examine witnesses depends on their understanding of the legal issues.

Secondly, Bytensky emphasized assessing your limitations and asking for help when appropriate. He believes young lawyers should get mentors and call senior lawyers for advice. “Don’t try to do it alone. Trying to do it alone, especially as you’re developing your practice, is really hard. And this job is hard enough already,” he explains. Senior members of the bar are willing to be “quite generous with their time” to help young lawyers. He recommends seeking help from colleagues and senior members of the bar rather than exceeding your limitations. Bytensky employed this strategy early in his career. He was fortunate to meet many senior criminal lawyers through his wife when he was young. But he wasn’t shy about calling senior lawyers for advice. Now, he is returning the favour to younger lawyers as an executive of the Criminal Lawyers’ Association and by working as an adjunct professor at Osgoode.

This method worked for Bytensky. He believes it will also work for the next generation of lawyers.