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Reflections on Ethical Considerations for Counsel in the Preparation of the Defence in a Criminal Case

I Introduction

Much of the ethical guidance in the Law Society of Ontario Rules of Professional Conduct, focuses on particular ethical issues which have received much attention in the literature.  These issues have included such matters as the lawyer’s duty when the accused admits the factual and mental elements necessary to constitute the offence, and what the lawyer’s duty is when the accused declares that he intends to take the stand and to lie.
While these discussions are helpful, they provide little guidance to the practising lawyer on the approach which should be taken to the more usual ethical challenges faced by defence counsel, with respect to:

  • the manner of interviewing the accused, 
  • the use of Crown disclosure by the accused in preparing a defence,
  •  the provision of legal advice by counsel to the accused with respect to possible defences,
  • the extent to which counsel, or the accused, control the conduct of the defence, and
  • the proper role of the defence counsel in advising an accused who is committed to an implausible version of the facts which lacks support in the evidence and appears doomed to fail.

In this article I have attempted to summarize the various ethical principles which govern the defence counsel’s conduct, and to provide, for the reader’s consideration, a particular approach to the preparation of the defence which endeavours to satisfy the various ethical constraints upon the defence, while assuring the greatest likelihood of success in conducting the defence.

II The Governing Ethical Rules in the Law Society of Ontario Rules of Professional Conduct

  1. The ethical rules governing the defence may be summarized as follows:
    • Rule 5.1-1 provides that when acting as an advocate, a lawyer “shall represent the client resolutely and honourably within the limits of the law while treating the tribunal with candour, fairness, courtesy and respect.”
    • Rule 3.2-7 states that a lawyer shall not a) “knowingly assist in or encourage any dishonestly, fraud, crime or illegal conduct”; b) “do or omit to do anything that the lawyer ought to know assists in, encourages or facilitates any dishonesty, fraud, crime, or illegal conduct by a client or any other person”; or, c) “advise a client or any other person on how to violate the law and avoid punishment”.
    • Rule 3.7-7(b) requires that a lawyer withdraw from representing a client if the client’s instructions require the lawyer to act contrary to the Rules of Professional Conduct or by-laws under the Law Society Act, “subject to the rules about criminal proceedings and the direction of the tribunal”.
    • Pursuant to the commentary under Rule 5.1-1 “[a]dmissions made by the accused to a lawyer may impose strict limitations on the conduct of the defence, and the accused should be made aware of this”.  The rule provides that “if the accused clearly admits to the lawyer the factual and mental elements necessary to constitute the offence, the lawyer, if convinced that the admissions are true and voluntary, may properly take objection to the jurisdiction of the court, the form of indictment or the admissibility or sufficiency of the evidence, but must not suggest that some other person committed the offence or call any evidence that, by reason of the admissions, the lawyer believes to be false”.  Similarly, the lawyer may not “set up an affirmative case inconsistent with such admissions” such as by calling evidence in support of an alibi inconsistent with the accused’s admission. When the accused has admitted the factual and mental elements of the crime the lawyer is entitled to “test the evidence given by each individual witness for the prosecution and argue that the evidence taken as a whole is insufficient to amount to proof that the accused is guilty of the offence charged, but the lawyer should go no further than that”.
    • Rule 5.1-2 requires that a lawyer shall not “knowingly assist or permit the client to do anything the lawyer considers to be dishonest or dishonourable,[1] knowingly attempt to deceive a tribunal or influence the course of justice by offering false evidence, misstating facts or law … suppressing what ought to be disclosed, or otherwise assisting in a fraud, crime or illegal conduct,[2] or knowingly permit a witness or party to be presented in a false or misleading way…” .[3]
    • Rule 3.2-2 provides that “when advising clients, a lawyer shall be honest and candid”.[4]

The accused is entitled to review, and make proper use of, Crown disclosure and it is impermissible for the Crown to suggest that the accused’s evidence is unreliable on the grounds that, prior to testifying, the accused had the opportunity to review all of the evidence against him.[5]

In practical terms, what is the best way for the defence counsel to approach the interview of the client, and the gathering of information to prepare a defence in a manner which complies with all of the above Rules of Professional Conduct?  How does the lawyer comply with the obligation to provide candid legal advice to the client, without knowingly or unknowingly assisting an unscrupulous client to concoct a contrived defence based on the lawyer’s legal advice?

It is the thesis of this article that, when properly approached, the lawyer can ensure that the factual defences available to the accused are fully and properly explored, in such a manner that they are most likely true (and therefore able to withstand attack if the accused testifies), do not result in a court being factually misled by a client who testifies, and therefore will result in the best possible chance of an affirmative defence that is led by the client resulting in his acquittal.

III When should the Client Be Interviewed – Before or After Disclosure is Received?

Although it is now almost 50 years old, some of the best advice on how to approach the defence of a criminal case is found in the 1969 Law Society of Upper Canada Special Lectures including the article “Preparation for Trial” by G. Arthur Martin.  Mr. Martin emphasizes the importance of the client as the initial source of information in preparing a defence, even if some aspects of the client’s position may be, at first blush, unlikely or suspect.  As Mr. Martin states:

“I am old fashioned enough to believe that in a criminal case the client is an important, perhaps the most important, source of information.  Sometimes he will tell you things that are not true.  Sometimes the information he gives you will cause you to waste your time and strength in searching for non-existent witnesses.  Even so, your time has not been entirely wasted and even the knowledge of your client, so acquired, all forms part of the total picture you have at the end of your pre-trial preparation.

Notwithstanding so many years spent in defending criminal cases I am still, at heart, a believer.  I happen to believe that there are more innocent people charged with crimes than is commonly supposed.  I have heard many unlikely stories in my time.  Some of them, surprisingly turned out to be true.

When I first talk to the client I let him tell me everything he thinks is important.  The story  as it comes to you in the first instance is likely to be rambling, disjointed, and full of irrelevant detail.  You have to assemble this information as best you can and supplement it by his answers to the questions you put to him based on such knowledge as you have about the case at the time. ….

Later on, when you have arrived at a stage of the proceedings, usually after the preliminary hearing, when your knowledge of the case is fairly complete, you should take a detailed statement from your client.  Since you now have a much greater knowledge of the case you will want in a statement to obtain his explanation for certain events, conversations, and perhaps his failure to do certain things”.[6]

Although Mr. Martin expressed this view at a time that pre-dates the extensive disclosure received pursuant to R. v. Stinchcombe, the wisdom in this approach, I believe, is in showing the client right from the beginning that you take seriously his response to the criminal allegations, and are prepared to investigate, and obtain, any available confirmatory evidence to support his version of events.  In my view, the proper attitude in such an inquiry is to extend to the accused every benefit of the doubt to ensure that you take the accused’s position seriously, it is fully investigated, and all available evidence in support of it is gathered.  Such an approach will also give the client confidence that you are committed to his or her defence.

While the accused is entitled to review all of the Crown disclosure provided as soon as possible, and to refer to the Crown disclosure in providing you with instructions, in my view the legitimacy of the accused’s position is enhanced by, at least in broad strokes, obtaining the accused’s version of events as soon as possible, even before you receive complete Crown disclosure.

Such an initial grounding in the facts, as related by the accused, also ensures that the legal issues explored are based on the accused’s version of events, rather than the theoretical potential of a defence which does not truly exist on the facts.

In the leading text “Witness Preparation: A Practical Guide” Brian Finlay and T. A. Cromwell give the following example:

“The client is charged with murder.  At the outset of the interview, counsel makes some general comments about the charge and the procedure to be followed and then says: “The law is that if you were drunk or acted out of blind rage, the charge should be reduced to manslaughter”.  This example raises the problem of where advice about the law ends and encouraging perjury begins.  No one doubts that it is the lawyer’s duty to give a client advice about the law.  But it is also a lawyer’s duty not to “knowingly assist and/or encourage any dishonesty, fraud, crime or illegal conduct, or instruct the client on how to violate the law and avoid punishment”.  The issue turns, then, on the purpose for which the advice is being given.

In the example, the information is offered by the lawyer before the client inquires and without eliciting even a bare outline of the facts from the client.  In the circumstances, it is hard to know what purpose the advice could have other than to assist the client to manufacture evidence”.[7]

The potential for the improper manipulation of the lawyer by the client, and for the misuse of legal advice by the lawyer, is substantially minimized by the lawyer focussing early on in the preparation of the defence on the client’s position in relation to the allegations.  I suggest that the authors of Witness Preparation: A Practical Guide are correct when they reject the view that, in a criminal case, counsel should not ask the client “What happened?”:

“Since if the true facts are disclosed, counsel may be then be ethically inhibited in presenting a particular defence.  Rather, this body of opinion suggests that the client be asked “What do the police say happened?”.  We consider this opinion to be an error. What is essential to the presentation of the case if you hope to do the best for your client is to obtain a complete grasp of the facts, and the sooner you achieve that grasp the better.  If the facts disclose little or no defence other than requiring the Crown to prove its case, so be it.  On the other hand, the facts may enhance an otherwise doubtful defence”.[8]

IV Legal Advice to the Client on the Ethical Constraints on Defence Counsel

It is clear that the accused is entitled to be advised of the ethical constraints placed upon defence counsel based upon the information received.  Rule 5.1-1 of the Rules of Professional Conduct states, in the commentary:

“Admissions made by the accused to a lawyer may impose strict limitations on the conduct of the defence, and the accused should be made aware of this”.

What the rule does not address is the timing of such advice. 
Consistent with a practice in which the accused is fully informed of the applicable law, but not in such a manner as to give the accused a road map for constructing a false defence, it is my view that the advice and the ethical limitations placed upon the lawyer should be woven into preliminary advice to the client which simultaneously communicates to the client the following key points:

  • It is important, and in the client’s interest, to be candid and honest with the lawyer in recounting the relevant facts;
  • While some clients think that they are best served by lying to their lawyer, that is not this lawyer’s view, and the client should be strongly urged that the lawyer is best able to assist the client if the client is candid and honest with the lawyer at all times;
  • The client should be told that it is important that the client be honest with the lawyer, and indeed, the lawyer could never call the client to testify to facts which he knows to be false;
  • Similarly, the lawyer could never call other witnesses to try to prove facts which the lawyer knows to be false (based on the instructions of the client), and it is important that the client appreciate this in his dealings with the lawyer;
  • However, having said all that, it is extremely important for the lawyer to receive accurate information from the client in order to be able to achieve the most favourable outcome possible in the circumstances on behalf of the client.
  • If the client subsequently determines that his initial position communicated to the lawyer was inaccurate, he should ensure that he corrects it, to be as accurate as possible.

By communicating all of this information in the initial discussion with the client, the fundamental ground rules are set with the client.  The likelihood that the client will ever suggest that the lawyer engage in unethical conduct, or that the client will construct a false defence in the hope that it will be advanced by the lawyer, is minimized by the early communication to the client of these fundamental principles.  At the same time, the lawyer is demonstrating his or her commitment to understanding the client’s factual position in an early interview.

V The Review of Crown Disclosure by the Accused and its Role in Preparing a Defence

The review of Crown disclosure by defence counsel, and the accused, may reveal fundamental weaknesses in the Crown’s case wholly independent of any position the accused may take. 
What if, in response to the details of the Crown’s disclosure, the accused changes his version of the facts in a subsequent interview with defence counsel?
Clearly, the accused is entitled to make appropriate use of disclosure in preparing his defence.  A review of the Crown’s evidence may demonstrate to the accused that his initial recollection was honestly flawed, as, for example, he may have mistakenly confused the events of one date (when he had an alibi) for the date of the alleged offence but, on review of the Crown disclosure, may now realize that his earlier recollection was mistaken.

In my view, it is appropriate to extend considerable latitude to the accused in his instructions to defence counsel when they are modified in light of a detailed review of the Crown disclosure.  So long as the accused assures counsel that he is honestly endeavouring to recall the relevant events, and to provide his best recollection to counsel (and is being truthful in that endeavour), the accused is properly entitled to amend his instructions in response to the details of Crown disclosure.  Often a review of Crown disclosure will justifiably cause an accused to realize that he had honestly forgotten certain events, or been incorrect in his recollection, until his memory was jogged by the disclosure.

If this revision is in the context of the discussion of potentially testifying, it will be important at all times for defence counsel to remind the accused that he is only permitted to call the accused to testify truthfully. Counsel should receive what, to the defence counsel appears to be, a sincere assurance that this is the accused’s truthful evidence, in response to the Crown’s allegations.

VI Who Ultimately Controls the Conduct of the Defence: The Client or Defence Counsel?

Once the client’s instructions have defined the general parameters of the defence to be advanced (alibi, self-defence, etc.) the issue arises as to who, as between the accused and counsel, ultimately controls the strategic decisions made in the course of conducting the defence at trial.
One of the most vigorous proponents of the wisdom of counsel ultimately controlling the conduct of the defence (apart from the decision with respect to the appropriate plea) is G. Arthur Martin who advocates that it is counsel who must ultimately control the conduct of the defence.  As he states in the panel discussion contained in the 1969 special lectures:

“Once the decision to plead not guilty has been made, it is for the defence counsel to decide how the case is to be conducted in accordance with his best judgment as to what is in the best interests of the client.  It is for the defence counsel, for example, to decide whether the case should be tried with or without a jury, whether a particular witness should or should not be cross-examined; if he is cross-examined, how the cross-examination should be conducted.  If I might draw a comparison from the world of medicine, it is for the patient to decide whether he wishes to submit to surgery or not but, once he has decided to submit to a surgical operation, he can’t tell the doctor how to perform the operation.  If the proper function of the lawyer is made clear to the client at a very early stage of the lawyer-client relationship, then in my view most of the very difficult situations which will be discussed later will be avoided”.[9]

This extent of control over the conduct of the defence is rejected by the Honourable Michel Proulx and David Layton in their leading text “Ethics and Canadian Criminal Law”, in which they argue for “a more nuanced approach …. what could be called a co-operative or client-centred model”.[10]  As described by the authors the co-operative model involves:

“… the unimpeded exchange of information between client and lawyer, and a mutual trust and a joint responsibility for a great deal of the decision making.  The lawyer, having arrived at a complete understanding of the facts and law, must provide the client with competent advice.  Counsel can recommend that the client make a particular decision, provided that he or she does not overwhelm the client’s freedom of choice.  Approaching decision-making in this manner empowers the autonomy and dignity of both client and lawyer, and promotes a free and full exchange of information and dialogue that leads to decisions most favourable to the client’s goals”.[11]

The difference between the approach advocated by Messrs Proulx and Layton, and that advocated by G. Arthur Martin, may be less fundamental than at first appears when considered in the light of the discussion recorded by Mr. Martin and Mr. Robinette in 1953 in a panel discussion of the Canadian Bar Association entitled “Problems in Litigation”.  Messrs Robinette and Martin discussed the considerations involved in deciding whether to call a witness in a trial where counsel is uncertain as to the reliability of the witness’s evidence and, therefore, whether it will advance the client’s case to call the witness to testify.  The following records the essence of the exchange:

“Mr. Robinette:            If counsel has doubts about the veracity of any witness, whether he is an alibi witness in a criminal case, or a witness in a civil case, I think it is his duty to point them out to the client and pretty well leave it to the client to say whether the witness is to be called or not.  The evaluation of a witness’s reliability made in your office is often correct, but sometimes, and not infrequently, the witness makes a better impression in the witness-box than he does in your office, and it is not for you to judge finally as to his veracity.  If you have honest doubts, the proper course is to discuss them with your client and tell him that you think the witness should not be called, but leave the final decision, as I say, pretty well to him.  Of course, if you know the witness is lying, if he has admitted to you that he is lying, it is a breach of your duty to the court to call him as a witness, either in a civil or criminal case, and there can be no question of what your ethical position is. ….

Mr. Martin:                   … I think that if counsel is of the opinion that a witness he is interviewing is not telling the truth he should take a very strong stand in the advice he gives his client.  I suppose if the client insists that the witness be called, you have to call him, provided, as Mr. Robinette has said, that you do not actually know the witness is lying.  However, I usually take a very strong stand, as I say, and tell the client that that witness is not to be called.  He can overrule me, but nobody has so far.  I take a very strong stand against the accused going in the box, too, if I don’t think he should.  … I do not think it is proper for counsel merely to evaluate the possibilities, place them before the client and let the client make the decision whether certain witnesses should or should not be called, or whether he himself should or should not give evidence, because after all he has retained you to defend him and it is for you to see that he is defended properly”.[12]

There is much to commend the opinion of Mr. Martin in this debate at least with respect to the manner in which the case is defended in court.  Advocacy is an art, not a science, and the lawyer has been retained to exercise his or her best judgment in relation to the conduct of the case before the court.  This judgment involves experience, legal analysis, and intuition based, likely, on years of favourable and unfavourable experiences in analogous circumstances which may be factored into the exercise of judgment by the lawyer. A client is not in the same position as the lawyer and, as Mr. Martin states, has hired the lawyer for his or her expertise and is entitled to look to the lawyer to exercise appropriate judgment in the case.

Notwithstanding the persuasive arguments made by Mr. Martin as to the importance of defence counsel controlling the conduct of the defence, the jurisprudence since he made these comments has developed in a manner which confirms the ultimate right of the accused to control all of the significant decisions with respect to the conduct of the defence, including matters routinely left to counsel such as which witnesses to call in the conduct of the defence.  As Chief Justice Lamer stated in Swain:

“Given that the principles of fundamental justice contemplate an accusatorial and adversarial system of criminal justice which is founded on respect for the autonomy and dignity of human beings, it seems clear to me that the principles of fundamental justice must also require that an accused person has the right to control his or her own defence.” 


“An accused person has control over the decision of whether to have counsel, whether to testify on his or her own behalf, and what witnesses to call.  This is a reflection of our society’s traditional respect for individual autonomy within an adversarial system.”[13]

The Court of Appeal adopted a similar view in Regina v. Szostak,[14] where the Court stated:

“Provided the accused is fit to stand trial, counsel must obtain instructions about decisions fundamental to the defence of the case.  In my view, that includes obtaining instructions as to whether or not to pursue a NCRMD defence.  Accused persons provided with all the necessary information may act irresponsibly and against their own best interests, but that is their right”.[15]

It is significant, in my view, that this fundamental affirmation of the accused’s right to control the defence was decided in the context of the fundamental decision of whether to lead the defence of not criminally responsible by reason of mental disorder.  The decision to advance such a defence, may, in certain circumstances operate to the substantial disadvantage of an accused person.  Accordingly, as the Court of Appeal noted in Szostack:

“The constitutional right to control the conduct of the defence prevents defence
counsel from raising the NCRMD defence against the instructions of the client”.[16]

As the authors persuasively argue in Ethics and Canadian Criminal Law, the principles of dignity and individual autonomy require, at a minimum, ongoing consultation and communication between the lawyer and the accused on issues of importance and a requirement that specific instructions be obtained on major issues of importance to the accused. This is particularly applicable to the major issues in the case such as, is the defence identify, or self-defence, or is a defence of not criminally responsible by reason of mental disorder to be advanced?  As the authors state:

“There is thus real merit in widening the scope of the client’s powers and placing within her control any decision that has a substantial impact on the outcome of the case.  This approach finds support in Szostack insofar as the Court of Appeal concluded that the client’s constitutional right to control the conduct of the defence requires that counsel obtain instructions from the client regarding ‘decisions fundamental to the defence of the case’ defined to include ‘possible pleas, possible defences and possible excuses, including NCMRD’.  In other words, Szostack clearly gives the client the last word on important decisions beyond the few usually identified by proponents of the lawyer control model.”[17]

What this analysis confirms is the importance of ensuring that the client is involved from the very beginning of the case in instructing defence counsel on his or her position on the facts, and the key strategic and other fundamental issues in the case, to minimize the risk of fundamental disagreements on these key issues shortly before or during the trial.

A factor which speaks in favour of the assertion of significant control over the conduct of the defence by the lawyer is the position of the lawyer in relation to the administration of justice.  Experienced counsel know that, as a practical matter, any judge hearing the case will have finite patience to hear pre-trial motions, motions to exclude evidence, and indeed to hear the evidence called at trial in relation to a particular issue.  It is fundamental that the advocate must exercise judgment in what arguments should be made, what motions should be brought and how to conduct those motions.  It is simply not the case that the court will have infinite patience to consider a plethora of applications which, while theoretically arguable, have so little prospect of success that they should not be brought.  Prudent counsel will canvass all of these issues with the client early in the retainer, will communicate his or her views on how the case should be conducted, and will obtain clear written instructions on the approach to be taken on the fundamental issues in the case.

Similarly, in the leading of evidence at trial, it is counsel’s responsibility to ensure that the witnesses called address the real issues in the case and do not unduly prolong proceedings in a way which does not advance the interests of the client, particularly in the world of limited judicial resources and time.

For all of these reasons, it will be in the interests of the client that an experienced lawyer exercising good judgment be the person to decide, in the ordinary course, on the details of the presentation of the defence in court after instructions are obtained on the key issues in the case.  Without clear guidance from counsel, the client may well be oblivious to such issues as finite judicial patience, and finite judicial resources which, if not acknowledged in the decision-making process, may actually impair the client’s chance of obtaining a favourable result in the matter before the court.  It will be important for counsel to be candid with the client on the proposed approach to be taken early in the presentation of the defence, and to get detailed instructions from the client on the defence to be advanced, to ensure there is no subsequent disagreement on these issues, both to protect counsel from subsequent complaint by the client, and to recognize the dignity and autonomy of the individual client and the legitimate role he or she has in determining the positions to be taken when charged with a criminal offence.

VII The Role of Counsel when Faced with a Client with Implausible Evidence who is Intent on Testifying

When the accused is intent on testifying, the lawyer’s relationship with the client has several aspects.  Firstly, the client is entitled to legal advice on all aspects of the matter to assist him in making full answer and defence.  Secondly, the client who wishes to testify, is a witness, who in certain respects is like any other witness who the lawyer may be calling to aid in the presentation of the defence.

In relation to a witness, the lawyer must be careful to ensure that he or she does not affect the substance of the witness’s testimony, and that the evidence elicited is the honest testimony of that witness, unaffected by the party calling the witness to testify.  In relation to the accused, and any other witness called by the lawyer, in accordance with the Rules of Professional Conduct, the lawyer shall not “knowingly permit a witness or party to be presented in a false or misleading way…”[18]  
Unlike any other witness, however, the accused has a solicitor/client relationship with the lawyer, and the lawyer has a duty to “represent the client resolutely and honourably within the limits of the law.”[19] Clearly, the client is entitled to the lawyer’s legal advice with respect to the likely impact on her trial if she testifies. 
What is the lawyer to do who has a client with a hopelessly implausible version of facts, which the client is intent on testifying to?

This question is answered when one considers the fact that, when called to the witness stand, the accused is like any other witness.  His or her lawyer can have no role in scripting or tailoring the evidence given by the accused to cause it to differ from the position honestly advanced by the accused in relation to the matter.  It would be unethical for the lawyer to encourage or assist the client to develop more credible evidence than the client advances as his truthful position.

What the lawyer can do is to provide the client with legal advice as to what, in the lawyer’s opinion, the impact will be upon the trier of fact of the client’s evidence.  The lawyer has a duty of candour to the client and, if it is the lawyer’s view that testifying will harm the client, because the client’s evidence is unlikely to be accepted by the trier of fact, it is the lawyer’s duty to say so. 

As Mr. Martin indicates in the 1953 panel discussion, after indicating that he will take a very strong position with the client as to whether or not he should give evidence the following exchange occurred:

“The Chairman:           In other words, you think the accused is entitled to the benefit of your opinion on whether he is going to be believed?

Mr. Martin:                  That is right.”[20]

It is the fundamental right of an accused to testify on his or her own behalf.  It is also fundamental that counsel should not assume the role of a judge in the case.  As Mr. Robinette said in the 1953 panel discussion:

“I am paid as an advocate to advance every argument that can honestly be advanced in favour of a plaintiff or defendant, or of the Crown or accused.  Counsel is an advocate, he is not a judge, and should not assume the functions of a judge”.[21]

While counsel should not fall into the trap of pre-judging the case, or causing the client to lose confidence in counsel by communicating disbelief in the client’s position, the accused client is entitled to your clear advice on whether you think that testifying will assist in defending the case and this opinion should be clearly advanced.

This is the solution for counsel facing an accused who wishes to testify with evidence that appears to be incapable of belief.  The defence counsel cannot affect the substance of the evidence, but he or she can have a fundamental impact on the client’s ultimate decision as to whether it is in his or her interests to testify.
Of course such an opinion should not be lightly given, and any opinion with respect to the unlikelihood of an accused’s evidence being accepted by a court should only be offered after counsel has made all reasonable efforts to obtain confirmatory evidence to support the accused’s position that may, initially, appear to be implausible but ultimately be one which is supported by other evidence.

VIII Conclusion

Notwithstanding the many changes which have occurred in the practice of criminal law in the last 50 years, including the increased rights of the accused to disclosure and other rights under the Charter, some of the best guidance available for current defence counsel can be found in the writings of eminent counsel such as G. Arthur Martin and John Robinette.  The guidance which emerges from these writings suggests that many of the traditional ethical dilemmas debated in academic texts are avoided in practice by a disciplined and principled approach taken by defence counsel at the outset of the case.

This will include an early attention to the accused’s response to the allegations against him and vigorous efforts to find evidence in support of the accused’s version of events, a focus on legal defences which emerge from the accused’s instructions to counsel, and strong direction by counsel with respect to the conduct of the defence based on consultation with the client and the receipt of instructions on all of the significant issues to be raised in the defence.

Early attention to the accused’s response to the allegations, combined with the early communication of the fundamentals of the solicitor-client relationship including: (i) the fact that the lawyer cannot call the accused to give false testimony, (ii) that the lawyer cannot call other evidence known to be false, (iii) identifying for the client early in the discussions the manner in which the client’s admissions to the lawyer may circumscribe the conduct of the defence, (iv) and the fundamental advice by the lawyer to the client to be truthful in his dealings with the lawyer, will put the solicitor client relationship on a proper foundation for the lawyer to have the best chance of successfully defending the case, well within the permissible ethical bounds.

Such an approach also gives appropriate recognition to the lawyer’s role in the administration of justice.  While the lawyer does not have a responsibility to guarantee the truth of the evidence which is led by the lawyer, such an approach maximizes the potential for factually truthful evidence to be led by counsel, and minimizes the risk of the lawyer being manipulated by an unscrupulous client into unintentionally leading false or misleading evidence before the court.

All of this brings the true interests of the client in obtaining a successful defence, and the lawyer’s interests in facilitating the efficient and honourable administration of justice together to mutually support one another.

Such a goal, of having the maximum chance of succeeding for the client, while acting in a manner which facilitates the administration of justice, is also greatly enhanced by the lawyer retaining fundamental control over the conduct of the defence after detailed discussions with the client, and the receipt of clear instructions on the fundamental issues to be raised in the defence.  This will increase the likelihood that only meritorious positions are advanced, court time is not wasted on fruitless applications of dubious merit, and that the witnesses called to testify will, so far as the lawyer can tell after diligent work, be giving truthful evidence which focusses on the essential matters of concern to the court.  All of this will serve both the administration of justice and will give the client the greatest likelihood of succeeding in the case, which, in the end, is the ultimate goal of the defence counsel.

[1] Rule 5.1-2(b)
[2] Rule 5.1-2(e)
[3] Rule 5.1-2(k)
[4] Rule 3.2-2
[5] Regina v. Peavoy 1997 CanLII 3028 (ONCA); Regina v. White 1999 CanLII 3695 (ONCA)
[6] G. Arthur Martin, “Preparation for Trial” in Defending a Criminal Case, Law Society of Upper Canada Special Lectures 1969, at pp. 225-226
[7] Witness Preparation: A Practical Guide, Canada Law Book, 2010, at p. 108
[8] Witness Preparation: A Practical Guide, at pp. 14-15
[9] “Problems in Ethics and Advocacy: Panel Discussion in Defending a Criminal Case, 1969 Law Society of Upper Canada Special Lectures, at p. 283
[10] David Layton and Michel Proulx, Ethics and Canadian Criminal Law, Irwin Law Inc. (Second Edition), 2015, at pp. 116
[11] Layton and Proulx, supra, at p. 116
[12] “Problems in Litigation” (1953) 31 Canadian Bar Review 503, at pp. 516-517
[13] R. v. Swain [1991] 1 S.C.R. 933, at page 972,
[14] Regina v. Szostack, 2012 ONCA 503 (CANLII)
[15] R. v. Szostack, supra, at para. 78.
[16] R. v. Szostack, supra, at para. 78.
[17] Layton and Proulx, Ethics and Canadian Criminal Law, Second Edition, supra, at p. 124; R. v. Szostack, 2012 ONCA 503 (CANLII), at paras 77 - 78.
[18] Rule 5.1-2(k)
[19] Rule 5.1-1
[20] Problems in Litigation (1953) 31 Canadian Bar Review, 503, at p. 517
[21] Problems in Litigation (1953) 31 Canadian Bar Review 503, at pp. 516-517



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