Role of the Defence Counsel

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General Principles

The defence counsel have several duties including:[1]

  • Duty of loyalty to the client
  • Duty of confidentiality to the client
  • Duty of honesty
  • Duties to the Court

These duties overlap and may occasionally conflict.

Counsel's purpose is to "provide professional assistance and advice" which involves allowing him to "exercise his professional skill and judgment in the conduct of the case".[2] He is responsible to conduct the defence and "exercise independent judgment as to what is in the client's best interests" and decide whether a particular course of action is within counsel's "duties as an officer of the court".[3]

Ethical Standards
Counsel who violates some ethical standard of the profession does not necessarily equate to a breach of the right to effective counsel. The two must be treated separately.[4] Concerns only for counsel performance, without a prejudice having occurred, can only be addressed by the profession's self-governing body.[5]

Conduct
All counsel are required to treat witnesses, counsel and the court with "fairness, courtesy and respect".[6]

Counsel who has been suspended from the bar while conducting trial will not necessarily require a new trial. Overturning the verdict requires that the counsel "ability to effectively represent the [accused] was impaired as a result of that disqualification."[7]

Counsel who are intoxicated during trial will result in an overturning of verdict regardless of the impact on the reliability on verdict.[8]

Retainer
Where counsel appears with an accused it is presumed that they have a general retainer. Counsel should tell the court if that is not the case.[9]

  1. ↑ e.g. Myers v Elman, (1940) AC 282 (HL) per Lord Wright ("A solicitor is an officer of the court and owes a duty to the court; he is a helper in the administration of justice. He owes a duty to his client, but if he is asked or required by his client to do something which is inconsistent with this duty to the court, it is for him to point out that he cannot do it and, if necessary, cease to act")
  2. ↑ R v Faulkner, 2013 ONSC 2373 (CanLII) at para 39
  3. ↑ Faulkner, ibid. at para 39
    R v Samra, 1998 CanLII 7174 (ON CA) at para 30-33
  4. ↑ R v GDB, 2000 SCC 22 (CanLII) at para 5 ("the question of competence of counsel is usually a matter of professional ethics that is not a question for the appellate courts to consider")
  5. ↑ GDB, ibid. at para 29
    See also Ineffective Counsel
  6. ↑ R v Felderhof, 2003 CanLII 37346 (ON CA)
  7. ↑ R v Prebtani, 2008 ONCA 735 (CanLII)
  8. ↑ Prebtani, ibid.
  9. ↑ R v Harrison and Alonso, 1982 ABCA 152 (CanLII)
    Salha, 2007 ABQB 159 (CanLII), at para 24

Duty to the Court

Both Crown and defence have a "responsibility in providing relevant case law to assist the court".[1]

In registering objections, Counsel only need to do it once to extinguish their duty. Renewing objections "ad nauseam" or quarreling with the judge is not obligated.[2]

Jury Nullification
Defence counsel are not permitted to direct a jury to ignore the law.[3]

  1. ↑ R v Adams, 2011 NLCA 3 (CanLII)
  2. ↑ Redican v Nesbitt, [1924] SCR 135, 1923 CanLII 10 (SCC)
  3. ↑ R v Morgentaler, [1988] 1 SCR 30, 1988 CanLII 90 (SCC)
    R v Latimer, [2001] 1 SCR 3, 2001 SCC 1 (CanLII)

Duties of Honesty

Defence counsel have an obligation not to call evidence that is believed or known to be false. The lawyer must attempt to dissuade the accused from seeking to call such witnesses and if unsuccessful should withdraw as counsel.[1]

Where an accused admits to committing the offence to counsel, counsel cannot advance any evidence that would tend to contradict this fact.[2] This will also include prohibiting counsel from calling the accused.[3]

A failure to pass a polygraph does not equate to a confession and so does not prevent calling the accused.[4]

When defence counsel become in possession real evidence such as a video of a criminal offence, they are obliged to turn it over to police.[5]

  1. ↑ R c Legato, 2002 CanLII 41296 (QC CA), at para 88
    see also CBA Code of Professional Conduct
  2. ↑ R v Li, 1993 CanLII 1314 (BC CA), at paras 48 to 74
  3. ↑ Li, ibid.
  4. ↑ R v Moore, 2002 SKCA 30 (CanLII)
  5. ↑ R v Murray, 2000 CanLII 22378 (ON SC)

Duty of Loyalty and Confidentiality

See also: Conflicts of Interest

A lawyer representing an accused must have undivided loyalty to their client.[1] Loyalty is a fundamental principle of the solicitor-client relationship and is essential to the integrity of system and the public's confidence in it.[2]

The duty of loyalty requires that there be no conflict of interest with the lawyer. A conflict of interest is where there is "a substantial risk that the lawyer’s representation of the client would be materially and adversely affected by the lawyer’s own interests or by the lawyer’s duties to another current client, a former client, or third person."[3]

The duty of loyalty includes the duty of candor in relation to retainer fees.[4]

  1. ↑ R v M.Q., 2012 ONCA 224 (CanLII) at para 26
  2. ↑ see R v Widdifield, 1995 CanLII 3505 (ON CA), (1996), 25 O.R. (3d) 161 (C.A.), at pp. 171-172
  3. ↑ R v Neil, 2002 SCC 70 (CanLII), [2002] 3 SCR 631, at para 31
  4. ↑ R v Neil, 2002 SCC 70 (CanLII), [2002] 3 SCR 631

Decision Making

Where counsel make good faith decisions in the best interests of the client, a court should not look behind it except to prevent a miscarriage of justice.[1]

A retainer can be employed to set out what authority the counsel has to make without the explicit instructions of the client.[2]

Instructions
While it is not necessary to seek express approval for "each and every decision" in relation to the conduct of the defence, certain fundamental decision ethically require counsel to seek explicit instructions:[3]

  • whether to plead guilty or not guilty
  • whether to testify or not to testify
  • whether to chose trial by provincial court, superior court with or without a jury

Failure to get instructions on these fundamental decisions could "raise questions of procedural fairness and the reliability of the result leading to a miscarargie of justice".[4]

It is often advisable that counsel have instructions provided to them in writing.[5]

Relationship with Client
The defence counsel is not the alter ego of the client. The function of defence counsel is to provide professional assistance and advice. He must, accordingly, exercise his professional skill and judgment in the conduct of the case and not allow himself to be a mere mouthpiece for the client.

There is no principle in law that the defence lawyer is the "mouth-piece" or "alter ego" of the client.[6]

There is no obligation for counsel to "make submissions no matter how foolish or ill-advised or contrary to established legal principle and doctrine, provided that is what the client desires".[7]

In fact, "there are only a small number of fundamental decisions where the client 'calls the shots'".[8]

Trial strategy is the responsibility of defence counsel after consulting with the accused. The accused has the right to terminate the relationship at any time.[9]

  1. ↑ R v GDB, [2000] 1 SCR 520, 2000 SCC 22 (CanLII) at para 34
  2. ↑ E.g. See discussion in Stewart v CBC, 1997 CanLII 12318 (ONSC)
  3. ↑ GDB, supra at para 34
  4. ↑ GDB, supra at para 34
  5. ↑ e.g. see R v Beuk, 2004 CanLII 53603 (ON SC) at para 40
  6. ↑ R v Samra, 1998 CanLII 7174 (ON CA)
    R v Faulkner at paras 27, 39
  7. ↑ Samra, supra
  8. ↑ Faulkner at para 39
  9. ↑ R v Connors, 2011 NLCA 74 (CanLII) at para 11

Withdrawing as Counsel

A judge must grant any request by counsel to withdraw for ethical reasons.[1]

A judge may inquire into the reasons for the breakdown between client and counsel in an in camera hearing to see if there is a possibility of reconciliation.[2]

A judge had discretion to refuse a request to Withdraw for non-payment of fees.[3]

A discharged lawyer has a common law right to exercise a lien on documents in his possession.[4] If counsel withholds materials, they must inform the crown and the court that he is doing so.[5]

  1. ↑ R v Cunningham at para 49
  2. ↑ e.g. see R v Denny, 2014 NSSC 334 (CanLII) at para 22
  3. ↑ Cunningham v Lilles, 2010 SCC 10 (CanLII) at para 17
  4. ↑ R v Gladstone, [1972] 2 OR 127, 1971 CanLII 500 (ONCA)
    see also R v Dugan, 1994 CarswellAlta 492 (ABCA) (*no CanLII links)
  5. ↑ Dugan, ibid.

See Also

Other Parties

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