Defence Counsel's Dilemma

"How could you defend a criminal?" is one of the most popular questions asked from a criminal defence lawyer or a law student displaying enthusiasm towards a career in criminal defence.

Albeit the meaning of the question may be understood, the wording nevertheless displays immense confusion on behalf of the person posing the question. To say that a person is a criminal implies that the person has already been charged with a criminal offence. It means that the person has went through the judicial system and was found to have been in breach of a provision in the Criminal Code, 1985. The best alternative to the word "criminal" is the word "accused"; yet this word does not differentiate between a person accused of what is considered to be a minor offence as opposed to a person accused of a heinous crime. Perhaps this indifference is important.

The question nevertheless has two folds: how could you defend a criminal substantively, and how could you defend a criminal procedurally. While the former goes to the morals and ethics of the lawyer, the latter is simply a question of legal process. I will examine each separately.

Substantive Defence of a Criminal

From James B. Donovan and Kenneth Murray to Marie Henein, defence lawyers have long been the subject of cynicism and criticism towards their moral and legal duties. One possible reason is that as soon as a person is accused of a crime, because of the stigma surrounding the accusation, the presumption of innocence is abandoned and that person is instantly labeled by the public as a criminal. Hence, the defence lawyer is deemed to be acting against the society by defending a person who is presumed to be a criminal.

A perfect illustration of this is Ghomeshi's trial. As soon as the allegations were made public, both print sources and online platforms were bombarded with negative comments aimed at Ghomeshi and with sympathetic comments aimed towards the women making the allegations. Without assessing any evidence or even requiring so, Ghomeshi had immediately become a criminal and the women had become the victims. This label was further solidified by the general nature of the offence of which Ghomeshi had been accused: an offence in which the accused is generally male and the victim female. Therefore it is not a surprise that some of the loudest voices in support of the women making the allegations came from feminists and Feminism activists.

Given this stigma that attaches to the accused upon the laying of a charge and the presumption of guilt, the question arises as to how and why someone would defend a such a person. While the possible answers may be limitless, I will address a few based on a hypothetical situation in which a client, X, comes to you and confesses to having committed a crime:

  1. Epistemological Argument - This reasoning casts doubt on the truth and certainty of a confession. It asks you: Although X has confessed to you, can you really be certain of the facts? After all, is it not possible that a mother would confess to a crime that has been committed by her child, simply to protect her child? If this mere possibility exists, then we, as lawyers, are not in a position to come to a one-sided decision without going through the judicial system.

  2. Division of Roles in the Judicial System Argument - This argument emphasizes the division of roles in our criminal justice system in which the burden of proof lies on the prosecution and the accused is under no obligation to lead any evidence. According to this argument, even though you, as a lawyer, may be aware or even certain of the accused's guilt, you still have to put forth your utmost best defence, because that is your job as the accused's counsel. The existence of solicitor-client privilege is also in support of this argument.

  3. Citizen vs. Government Argument - The Canadian Charter of Rights and Freedoms, 1982, is a source of pride for Canadians as it provides a basic framework of rights accorded to civilians, regardless of their status in the country. Section 10(b) provides for the right to counsel. Thus, the accused not only has a right to counsel, but that the defence counsel has a duty towards the accused to ensure his or her rights are not infringed upon by the government.

  4. Evolution Argument - According to this argument, an aggressive and complete defence should be conducted even for an accused who is known by his or her counsel to be guilty. The reason for this argument is that the acquittal of an individual known to be guilty challenges the justice system to such extent that prompts the parliament and the courts to take any reasonable steps possible to prevent any similar future outcomes. This leads to the evolution of our justice system.

Procedural Defence of a Criminal

In the previous section, we were dealing with the hypothetical scenario involving an oral confession. What would happen if that confession to a crime is backed up with incriminating physical evidence? The question is no longer dealing with you and your morals personally, it goes to the legal and ethical procedures for defending a guilty accused.

In this hypothetical situation, we are dealing with admissible incriminating physical evidence whose absence would certainly lead to an acquittal and whose presence would hurt the accused. Let us further suppose that the defence lawyer does not intend to introduce the evidence at trial in support of his or her case. Possession aside, with this knowledge of the existence of evidence, how does a defence lawyer proceed to defend the accused?

If the lawyer discloses information about the evidence to the Crown, the solicitor-client privilege and the role of the defence lawyer in our system is questioned.

If the lawyer does not disclose information about the evidence, the lawyer could potentially be subjected to a criminal proceeding for obstructing the administration of justice, or be called upon by the respective Law Society to address his or her duties with respect to the court and the public.

Either way, the defence lawyer is in a lose-lose situation and the reason is that this issue has not yet been properly addressed. In 2000, following Kenneth Murray's investigations, the Law Society of Upper Canada attempted to provide a framework to lawyers facing similar situations.[1] The effort was futile and one is lead to assume that this is a dilemma that is not possible of getting addressed.

Yet the solution may be much simpler than what we expect it to be. On the one hand, we want the rights accorded to the accused to be respected, yet on the other hand, we want justice to be served. Are there any points of reconciliation?

The most difficult yet ideal solution is to provide an appealing incentive to the accused to volunteer the incriminating evidence to the court. Going back to our hypothetical scenario, what sort of incentive motivates an accused to volunteer evidence whose absence from the trial would ensure his or her acquittal? The incentive must be one that stems from accused's own belief and value system. It is a timely and costly process to appoint a psychologist to determine how to incentivize the accused, however, it is a possibility.

Would re-introducing the distinction between courts of equity and the courts of common law be of any use, such that the defence lawyer is obligated to disclose the evidence, yet upon any conviction, the accused has a right to appeal to the court of equity?

Perhaps a better solution is obligating defence lawyers to disclose such information to the Crown, yet considering the evidence as inadmissible at trial. This way, although the Crown is not able to rely on the evidence provided by the accused's lawyer, it could however use the evidence to find other admissible evidence. In case of Kenneth Murray, the Crown would not have been able to rely on the video tapes, yet they could use the tapes to source other evidence, such as tools used by Paul Bernardo in committing the offence.

How fair would this process be to the accused? If the accused volunteered specific evidence to his or her defence lawyer, yet failed to volunteer other evidence, then it is reasonably foreseeable that the Crown or the Police might have come to discover the undisclosed evidence independently. Theoretically, it seems to work out.

To date, extended scholarship has been devoted to this topic yet no consensus has been reached on the proper procedures in dealing with the defence counsel's dilemma. Perhaps we are one more case, or too many, away from the tipping point that prompts an immediate response.

[1] Christopher D. Clemmer, "Obstructing The Bernardo Investigation: Kenneth Murray and the Defence Counsel’s Conflicting Obligations to Clients and the Court" (2008) 1:2 Osgoode Hall Review of Law and Policy at 155.

About the Author

Bahareh Shahangian is a first year law student at Western University, Faculty of Law. As a summer student, Bahareh will be working on Small Claims Court cases and on drafting contracts. Bahareh's motivation for writing this piece was the controversy surrounding the recent Ghomeshi trial.

Suggested Citation

Bahareh Shahangian, "Defense Counsel's Dilemma" (2016) eDiscoveries, online: <!Defence-Counsels-Dilemma/cjds/572f84cc0cf20cbfb2953140>.

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