How Can You Defend Those People?!
Ask any criminal defence lawyer what they are asked the most about their work, and this will be the unequivocal number one question on the list.
This is a blog that I have been intending to write for a long time, and I think about it every time I’m asked this question. I have been asked this question by all sorts of people. Not just neo-conservative people, but even by people that purport to have a strong social conscience or liberal values.
The question used to really offend me.
I would become flabbergasted and think ‘how can you even ask this question?!’ and ‘how can you not believe in civil liberties?’ Over time, I have come to recognize that there is more nuance to the question and the reason it is asked.
The standard response that many defence lawyers give is “who would you call if you ever found yourself in trouble?” The problem with this response is that most people asking the question cannot envision themselves being involved as an accused person in the criminal justice system, even though everyone is one bad decision, one fluke event, or one false accusation away from finding themselves defending a criminal charge.
The question typically comes from a place of unintentional ignorance. This ignorance is a product of society, and is largely informed by the media and a perpetual, 24-hour news cycle.
Who are ‘those people’?
An important starting point in parsing out the cause and answer to the question of how I can defend ‘those people’, is defining: who are those people?
Those people could be anyone.
People who have suffered tragedies. People who have suffered with mental health issues, diagnosed and otherwise. People who have suffered with addiction issues. People who have made an isolated mistake. People who have been wrongly accused. People who never thought that they may encountered the criminal justice system.
This barely scratches the surface of who those people are, and these broad categories more often than not overlap, and they do not truly define who anyone is.
Doing this work, one universal truth is that it is a mistake to paint anyone with a broad brush. The vast majority of people who find themselves at the mercy of the criminal justice system are complicated, interesting people with a story to tell.
The stories are often harrowing, heartbreaking, and sympathetic. They are the stories that the media rarely reports, because they do not make for particularly good ‘click-bait’ in a 24-hour news cycle. The media counts on reactions, repulsion, and rhetoric. Media is consumed by the general voting public. Donald Trump is POTUS, Doug Ford is Premier of Ontario, and a ‘tough on crime’ agenda will always win more votes than a ‘high on human rights’ stance. The media generally frames the crime despite the person, which is why ‘those people’ is a generalization that is used to depict everyone charged with a crime as a vile criminal, when the truth is far more nuanced.
The Court of Public Opinion is easy to persuade, and Charter values need not apply.
Defending people, not actions
The majority of my matters are trials or appeals for people asserting their innocence. The remainder are people who are accepting responsibility for their actions. In both cases, my role is to ensure that they are treated fairly by the criminal justice system.
My role is to provide legal, and often emotional, support for my clients. It is to inform and advocate. It is to ask difficult questions and often get difficult answers. It is to make unpopular arguments that are in the best interests of my clients and the protection of human rights.
We are extremely lucky to live in a society in which civil liberties are part of our Constitution. They are the highest law in the land. We are given essential freedoms to religion, free speech, equality, life, and security of the person. We are given essential legal rights which protect democracy and freedom from oppression of the state.
These are the rights that were deemed so central to the Canadian identity that they were engrained as part of our constitution. When I bring a Charter application, it is not an indication that I support illegal behaviour, it is an indication that I vehemently support the freedoms and civil liberties that are Constitutionally protected.
I defend people, not actions. (And I am not ashamed to say that I have borrowed those words from the late, great Eddie Greenspan).
Being a criminal defence lawyer is far from what is portrayed on television. Admittedly, it would be much easier in some cases if we were the Saul Goodman types who lie, cheat, and steal to advance our own interests by getting clients acquitted at all costs.
The Law Society of Ontario enforces strict rules on counsel that require candour and honesty in our practice. I owe a paramount duty of confidence to my clients, but I cannot assist them in breaking the law, which includes lying to the court. I can protect a client’s interests at trial if they have admitted guilt to me, but within very rigid ethical bounds. It may also surprise people to learn that it is very, very rare for a client to say “I’m guilty, but get me off, whatever it takes”.
Representing a person with criminal charges is not an indication that I support crime. I am a person – a husband and a father – and certain crimes are particularly repugnant to me. This does not stop me from defending a person charged with committing those acts. This is because I defend people, not actions.
Well, how can I defend ‘those people’?
There can be challenges. There is the odd client who expects me to bend all morals and ethics to secure an acquittal. The odd client who thinks that they can pay their way out of a situation.
I say ‘odd client’ because thankfully, these people are the exception, not the rule. Just as the trope of sleazy-win-at-all-costs-lie-their-face-off defence counsel is the exception, not the rule.
Most of the people that I represent either understand the code of ethics that binds defence counsel as officers of the court, or they come to understand it with minimal explanation.
I have a good friend from law school who often muses that an ideal version of our criminal justice system would be one in which the Crown and Defence could switch sides mid-trial and still advocate for a just result.
This is something that I think about often. Particularly so when I encounter a Crown Prosecutor who straddles ethical boundaries or engages in sharp practice.
In Canada, Crown Prosecutors are expected to be dispassionate ministers of justice, concerned more with a just result for society as a whole than a conviction at all costs. This is not just an ideal, it is the law. The Supreme Court of Canada held in 1955, in the seminal case of The Queen v Boucher:
It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength, but it must also be done fairly. The role of the prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with a greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.
This, of course, contrasts the role of the defence lawyer, who has a duty to zealously advocate for their client. So long as the lawyer is functioning within the Rules of Professional Conduct laid out by the Law Society of Ontario, the scope of practice is wide, and the defence lawyer bears a duty of confidence to the client.
This is a fiduciary relationship that engages very different advocacy skills and approaches than the less partial prosecutor. I personally always tell my clients that it is important that we trust one another to enjoy a successful solicitor-client relationship. I am always honest with my clients, even when it means being the bearer of bad news, and I am able to best serve my clients when they are honest with me in the confines of our relationship.
I always try my best to put myself in the shoes of my client, even when it may be difficult. It is important for me to approach my job dispassionately at times, but passionately at others. Frankly, the biggest problem that I have with doing what I do is crossing the border between empathy and internalizing the emotional impact on my clients. Even still, I would prefer my work having an emotional impact on me than not being able to empathize.
So, how do I defend my clients?
One day at a time. One hour at a time. It is a huge social responsibility, one that I do not take lightly. Many of my clients have few or no people in their corner, and it is an honour to have them trust me in their time of need.