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When I attend a dinner party, it is inevitable that someone will hear that I am a criminal lawyer and feel compelled to advise me that they’ve always wanted to be one, too, since first seeing television lawyer dramas like Law and Order or CSI.
This is usually followed by the naïve question: “Have you ever acted for a guilty client?”
The answer is yes. A thousand times yes.
Every criminal lawyer acts for guilty clients or they wouldn’t have much legal work. Whether they are charged with domestic assault, theft, sexual assault or impaired driving, many of our clients are actually at fault. They actually did what they are alleged to have done!
When a client comes into my office, the real issue is not whether or not they committed an offence, but rather, can the prosecution prove the case beyond a reasonable doubt.
The term “smoking gun” is often used to describe a crime where an individual is caught red-handed in the act. The police arrive to find the shooter with a warm gun in his hand, smoke emanating from the barrel, and a dead body at his feet.
In many cases, the evidence is overwhelming that a particular person committed a particular crime. In these cases, the role of a criminal defence lawyer is to achieve the best possible result under the circumstances.
The best possible result involves an analysis of the incriminating evidence. If the evidence is admissible in a court of law (according to the rules of evidence) and there are no technical arguments that could exclude the incriminating evidence, then the role of the criminal lawyer is to attempt to negotiate the best possible result for the client, namely a plea of guilty to the lease serious charge, and the best possible sentence.
In many cases there are technical arguments that can be advanced, challenging the propriety of the police conduct or evidence that has been obtained in violation of our rights. All Canadian citizens have certain rights available to them in accordance with the Canadian Charter of Rights and Freedoms, and these rights prevent thousands of people every year from having to serve harsh sentences.
For instance, if the police enter a person’s home without a warrant and without reasonable grounds, and find the “smoking gun,” it’s not likely to be admitted as evidence against the perpetrator. Although justice may be denied in a particular case by ensuring that the police behave in a manner consistent with fundamental civil rights, the more important result is that such behaviour cannot be condoned in a free and democratic society. The principle of the sanctity of our homes from police or state intrusion is of greater importance than justice in a particular case.
The defence lawyer is but one cog in a justice system that is balanced by a judge and a prosecutor. It is the defence lawyer, who, by protecting the rights of each and every one of us, breathes life into the Charter of Rights.
Defence lawyers will challenge every piece of evidence and place the police investigation under a microscope in order to attempt to avoid a client’s conviction.
This is not necessarily because a client is innocent. The greater value is the importance of the civil liberties that we enjoy as a civilized society.
Individuals are presumed innocent, and innocence is the golden thread that runs through the course of a criminal accusation until such time as the prosecution has proven guilt beyond a reasonable doubt. The guilty client may be acquitted in the process, but the more important value worth maintaining is the sanctity of the civil liberties that we enjoy.
The role of the criminal defence lawyer is not to judge their clientele, but instead attempt to ethically raise a reasonable doubt or otherwise challenge the incriminating evidence. If the evidence is overwhelming and there are no legal arguments available to avoid an inevitable conviction, the role of the defence lawyer is to attempt to achieve, the best possible result through negotiation with the Crown Attorney.
Ian Kostman (04/03/2015)