Note: This article originally appeared in the OBA’s Criminal Justice Section Insider last fall and is being republished in JUST to commemorate International Day of Persons with Disabilities.
My name is Jason Mitschele. I am a blind Federal Prosecutor in Toronto with the Public Prosecution Service of Canada where I manage a team of over 20 lawyers conducting wiretap prosecutions throughout Ontario. This role for me marks the culmination of a very long and arduous journey to acceptance among my peers and within the legal community. Previously the practice of law was one where lawyers living with a disability dare not go. Our profession was resistant to change and not open to someone who was perceived as being different.
Fortunately, I have experienced a significant shift toward inclusion and the acceptance of diversity over my 20 years of practice. The path has not been easy, however, and there have been many roadblocks on the way. These challenges included a combination of a very heavy workload and, most significantly, people’s attitudes towards maintaining the status quo: the idea that “we have always done it this way so why change now.” Unfortunately, this type of thinking was prevalent within the legal profession until relatively recently.
For these reasons, the notion of a totally blind team leader responsible for a team of senior lawyers would have been unheard of and unthinkable until now. I want to publicly thank the Public Prosecution Service of Canada for truly putting me on a level playing field with my colleagues. My experiences as a manager have enhanced my leadership skills and I believe that putting a person with a disability in charge of a team of their able-bodied peers shows a significant commitment to the advancement of people with disabilities. I often wondered if I would get here but I have arrived.
Even as a child, I had a passion for the law. I really enjoyed the law-related shows on TV because I could follow the story by listening to the dialogue in the courtroom so I didn’t have to see what was going on.
Growing up, I often mediated disputes among friends and family members. At a young age, I developed an appreciation for taking on a struggle from my mother. As a young blind child, growing up in Ontario in the 70s, the mainstream school system was very resistant to accommodating me. Back then, parents of blind children were pressured to put their blind child into a “specialized” school for the blind where children would live in residence for many years away from their families. My mom fought the system and got me into the regular school system where I could socialize with my sighted peers and learn how to thrive in a sighted world. Her strong advocacy encouraged me to advocate for myself but also to take up the cause for others. My early experiences definitely encouraged me to fight against injustice and to help other people with disabilities who were experiencing similar barriers in society.
In high school, I expressed my desire to become a lawyer but I kept hearing about how difficult the practice of law would be for me. My teachers and counselors constantly discouraged me from pursuing a career in law as they felt that I would not be able to overcome the workload and that I wouldn’t be able to achieve the marks required to get into law school. They were adamant that the practice of law would likely not be an option for me as the workload was too great and no one would hire me due to my disability. I was encouraged to “play it safe” and choose a career path that would be more accommodating to my disability.
Fortunately, my family provided the voice of encouragement. My mom stressed that I should pursue my education and see what happens. But, even following a successful undergraduate experience after having attended both UBC and UC Berkeley, I still doubted whether I could overcome the social stigma regarding blindness in the practice of law.
An epiphany came to me at the Pit Pub at UBC in the fall of 1997. While at a student function, I met a gentleman at the bar and we struck up a conversation. We discussed our undergraduate marks and our interests. He and I were similar but I didn’t feel this sense of superiority from him. Unlike other lawyers I had met, I wasn’t in awe of him. In fact, I realized that he really didn’t have anything over me and that blindness or not I was on the same level as this sighted person and I could do it.
I began my law school applications the next day. Given all of the naysayers from my past, however, I still had doubts as to whether I could handle the pressure and the workload.
The seminal moment when I knew I could do this job was when I met David Lepofsky in October of 1997. I was visiting Toronto from Vancouver in order to visit family and tour law schools. I had heard about this blind prosecutor in Toronto and I had to meet him. I met him in his Bay Street office and he convinced me that being a lawyer in particular a prosecutor was definitely in the cards for me.
He explained how he did his work through the use of adaptive technology and explained that he was given his own personal paralegal from the Ministry to assist him with the voluminous reading and with court appearances. He told me about the practice of criminal law and described how hearing the testimony of a witness can be just as important as seeing them. He told me the story of how when he was once arguing an Appeal at the Ontario Court of Appeal, the lights went out but he kept on arguing when everyone wanted to adjourn court for the day! He made me believe that I could become a criminal lawyer as well as a law student. Once I met with David, I was hooked. He armed me with the ammunition I needed to attend law school and to become a Crown. Meeting David back on that chilly fall day in 1997 certainly changed the trajectory of my life.
Shortly afterward, I began my career in law by attending law school at the University of Toronto. The Faculty of Law at the University of Toronto was very accommodating as they provided me with my own private workspace where I spent countless hours reading cases and writing papers on my adaptive computer through the use of speech software.
Nevertheless, the challenges remained. As a student with a disability, I was made to feel that I was somehow at a disadvantage in the extremely competitive job market. I felt that I needed an edge. In the practice of law, one’s reputation means everything and it is all about building relationships. So, I had these corny business cards printed up with my name and cell number that said Jason Mitschele, Student at Law. I would attend job fairs and hand them out.
While attending my first ever job fair I found myself at the Department of Justice table. I spoke with the two people staffing the table at great length and of course left them my card. I was very open about my blindness and of course, I introduced them to my guide dog. I explained how I used my cool speech program and took them through how I complete my assignments. I guess at least some of this resonated with them because I was hired as a first-year summer student at the DOJ, now PPSC, and have been there ever since.
I learned early on, both in schooling and my work as a prosecutor, that I had to come up with a strategy to handle the large amount of written material and that I had to also figure out how to navigate the tremendous workload. Given that I prosecute many large-scale drug and gun cases, the disclosure can be overwhelming and many of the police notes involved are hand-written. The simplest answer to deal with these challenges was for me to know the cases inside and out. To assist me with this, the Public Prosecution Service of Canada provides me with my own paralegal. This works well as she is able to type the officer notes for me as well as help me to organize and maintain my various files. Through a combination of working with my assistant and using my adaptive technology, I am able to handle my workload as a busy prosecutor in Toronto.
As I am now a senior prosecutor, I often mentor junior lawyers and bring them to court with me. This also helps me with any last-minute paperwork or any unexpected surprises in court.
In the courtroom, preparation is key. I thoroughly prepare and memorize my questions for examination-in-chief ahead of time. This process can be more difficult when cross-examining a witness because we usually don’t have any advance notice as to whether the accused is going to testify, much less what they will say. Again, knowing my case inside and out helps with this process. As the accused doesn’t have to say anything in relation to the charges, we often don’t hear their story until they are on the stand at trial. I usually listen intently and have my co-counsel take copious notes. I then ask for a break to review the testimony and compare how it relates to all of the other evidence in the case. Is it contradictory? Does it dovetail with the rest of the evidence and does the evidence make sense. Above all, I cross-examine on the fine details. If a witness is lying, they will usually struggle with the specifics surrounding the events in question. I grill them on when things happened, who was there and what they did next. Often, they will have trouble talking about little details and will contradict themselves at some point. I once cross-examined an accused where at the beginning of my cross he was in tears; by the end, he was visibly angry with me. His demeanor completely changed throughout my cross. The more I pressed him for details and pointed out contradictions in his testimony the more he wanted to throttle me. To ensure I’ve covered all areas, I usually write up a cross-examination checklist. Once I think I’m finished my cross I ask for a break and review my checklist either with my co-counsel or on my phone or laptop.
I have also found that one cannot always rely on a witness’s appearance in deciding whether they are telling the truth. I can tell a lot from their tone of voice. Do they sound like they are making it up? Does their voice sound strong or timid? Is their voice breaking up or clear? Do they seem like they are being insincere? A witness can present well on the outside, but their tone of voice can give them away. There is no chance that I will be fooled by a charmer in a slick suit.
I have also become adept at handling certain types of evidence, such as video evidence. When presenting video evidence in court I introduce the footage through a witness. I make sure that that witness describes every aspect of that video both for the record and for me. I take them through the video frame-by-frame and have the witness fully articulate what is on that video, what is happening and who is there. Since many of my cases involve Charter issues, I have never had a case to date where video evidence is determinative in the ultimate issue of guilt or innocence.
Put simply, I have to know my case better than a sighted person does, as I have to rely on my memory in court. I pride myself on being well prepared and my experience has taught me to expect the unexpected in trials. However, the better I know the case, the more equipped I am to adjust on the fly if need be.
In an organic way, the courts have informally accommodated me in many ways. For example, as a young prosecutor, I conducted my first preliminary inquiry at Old City Hall. I had read the officer notes backwards and forwards and had all of my questions planned. It was a case where an undercover police officer bought drugs from an individual on the street. I had meticulously taken the undercover officer through the necessary questions such as where she was, when she was there, how she met the accused, and the description of the accused. However, when I asked the officer to point out the man from whom she had purchased drugs she answered, “He’s over there”. This was the one issue I hadn’t planned on: the identification of the accused in court. I had seemingly hit a major roadblock. Just when I was struggling to determine who the witness was pointing to, the Judge put on the record that the officer was pointing to the accused. That solved the problem. From that day forward, judges would know me and would state on the record when the witness pointed to the accused. This is not an accommodation I’d asked for or expected but it sure made my life easier and less stressful.
I have also found the court staff to be extremely accommodating. For example, the court staff at the Superior Court of Justice at 361 University Avenue would always ensure that my guide dog would have a bowl of water waiting for her in our courtroom.
As I write this article [ed note: 2022], I am completing my first jury trial since before the pandemic and it is great to be back! Although there are many advantages in virtual hearings, there is nothing like the feeling of connecting with a judge and jury in person.
I’ve been participating in Zoom hearings since the spring of 2020. In many ways, they’re very accessible for people with disabilities. For people with mobility issues, virtual hearings are a great equalizer. Unfortunately, many of the courthouses pose challenges for people with disabilities and the commute in itself can be very difficult. Zoom puts us on an even playing field in terms of being able to attend a hearing. All we need to do is turn our computer on. I also found that due to not having to commute and wait around in court Zoom hearings were more efficient at least when there were no technical issues.
Another advantage of Zoom for me is that it was easier to show documents to the court. I could simply open a document on my screen and share it with the court as my speech software was reading it to me. In a live court setting, I need someone to put my documents in order before I can make them exhibits.
I found that in general, I could be more independent in a virtual hearing as opposed to an in-person trial. This is because I never had to worry about finding the courtroom; never had to endure a long commute; and never had to worry about being handed a document at the last minute that I can’t read. I had everything at my fingertips.
Although in some ways in-person hearings pose more barriers for me than virtual hearings do, I still prefer litigating in person. Being in a courtroom is the reason I got into law and there is no substitute for the personal connection I can get from a live witness judge or jury. I also think that virtual hearings made me a little lazier. I don’t think I present as well if I’m sitting in a chair at home instead of being in front of a podium in the courtroom. I would actually stand when making my trial submissions over Zoom as it seemed more like the real thing.
I think there is still a place for virtual court particularly in non-substantive proceedings such as set date court. In fact, I think that for most docket courts virtual hearings are preferable because they are more efficient, and they provide lawyers with the opportunity to be in multiple courtrooms all over the city at the same time.
Although virtual hearings certainly have their place, I’m glad to be back in court. It brought back a feeling and excitement about the law that I haven’t felt since before Covid invaded our lives. For me the adrenaline rush of a live trial is the reason I do what I do.
As technology and the law evolve, I don’t know what the next 20 years will bring for me, but the first 20 have certainly made me a stronger advocate and have educated me about the new and creative ways to practice law within the criminal justice system as a blind lawyer.
About the author
Jason Mitschele has been practicing law as a Federal Prosecutor since 2003 for the Public Prosecution Service of Canada. His practice involves the prosecution of firearms and narcotics offences. He currently leads the Toronto Superior Court Team. Jason is a proud advocate for the rights of persons with disabilities, serving as national advisor for Persons with Disabilities for the Public Prosecution Service of Canada, board chair for ARCH Disability Law Centre, member of the Ontario Courts Accessibility Committee, member of the Customer Standards Development Committee established under the Accessibility for Ontarians With Disabilities Act, director for the Canadian National Institute for the Blind Foundation, and co-founder and co-chair of the National Counsel of Employees Living with a Disability, Public Prosecution Service of Canada. In 2019, Jason was proud and honoured to be the recipient of the National Heads of Prosecution Courage and Perseverance Award in Quebec City. He will be participating in a Fireside Chat with The Hon. Justice Richard Bernstein on December 4.
This article was originally published by the OBA’s Criminal Justice Section.