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Michael Edelson: Why defence lawyers are never hired by the guilty

(2012-03-23)

Why defence lawyers are never hired by the guilty

BY MICHAEL EDELSON, THE OTTAWA CITIZEN

How can you defend all of those guilty murderers, child pornographers, sex perverts and terrorists?

This question, or some variation of it, has been asked of me and every defence lawyer I know at some point in their careers. It may be at a cocktail party or a dinner party or a hockey game; you just never know when someone will pose this question.

My answer is a simple one. I have never been hired by a person who is guilty. In fact, this question engages us in a discussion that goes to the very heart of the criminal justice system. As a matter of law, every person who is charged with a crime is presumed to be innocent. This is not some technicality. It is the pivotal legal right that belongs to all Canadians, and is an integral part of the supreme law of Canada, our constitution, the Canadian Charter of Rights and Freedoms.

It is also part of a legal equation which informs everything that happens in a criminal trial. It is the Crown prosecutor who always has the burden of proving beyond a reasonable doubt the guilt of a charged individual. We are not judges or jurors. They are the ones vested with the serious responsibility of determining if the Crown has discharged their burden in any particular case. It is only proof to this level of certainty which can discharge the presumption of innocence, failing which, the person accused is found not guilty.

Defence lawyers are sometimes referred to as barristers, to use the English term, or advocates. This means they are retained to plead the cause of another. It must be emphatically stated, however, that this does not mean they are the mouthpiece for their clients, giving voice to any position or whim concerning the case which the client insists be advanced before the court. There are restrictions, both legal and ethical, concerning what an advocate is permitted to do in advancing their client’s case and protecting his or her rights.

Our legal system is known as an adversarial system. The underlying principle is a simple one: that two equally qualified advocates will present their respective cases to a judge (and jury) and that a determination will be made as to whether the prosecution has discharged its burden of proof.

However, a defence lawyer must act within the bounds of the law, as well as the Rules of Professional Conduct, the ethical code that circumscribes their activity in and out of court. They are also officers of the court and owe an overarching duty to the administration of justice.

When it comes to defending an individual before the courts, our ethical role is clearly defined by the Rules:

“The lawyer has a duty to the client to raise fearlessly every issue, advance every argument, and ask every question, however distasteful, which the lawyer thinks will help the client’s case and to endeavour to obtain for the client the benefit of every remedy and defence authorized by law. The lawyer must discharge their duty by fair and honourable means, without illegality, and in a manner that is consistent with the lawyer’s duty to that tribunal with candour, fairness, courtesy, and respect and in a way that promotes the parties’ right to a fair hearing where justice can be done.”

All defence lawyers have a duty, notwithstanding their private opinions, as to the credibility, or merits of a case, to properly rely on any evidence or defences, including so-called technicalities, not known to be false or fraudulent.

A defence lawyer is also constrained by the rules of evidence, the Rules of the Court and the nature of the crime and its component legal elements. Every lawyer owes a duty to the Courts and their adversaries to conduct themselves with candour, civility and respect.

Admissions which a client may make to his or her defence lawyer are protected by solicitor-client privilege (subject to certain exceptions to be addressed in a future column). It is important to understand that such statements may impose strict ethical limitations on the conduct of the defence; clients must be advised of this.

The Rules dictate that, if an accused client clearly admits the factual and mental elements necessary to constitute the offence and if the lawyer is convinced that these admissions are true and voluntary, the lawyer is prohibited from suggesting that some other person committed the crime or call any evidence which, as a result of the admissions, the lawyer believes to be false (e.g. alibi).

This is the first of a series of columns concerning the role of defence counsel. They will be followed by columns examining the role of prosecutors, judges and jurors.

 
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