The Role of Defence Counsel in a Criminal Proceeding
By Hans John Kalina
What is the role of defence counsel in a criminal proceeding? While this may seem like a question with an obvious answer, closer examination, reveals that it is not.
There are two opposing views on the subject. One view is that defence counsel is the client’s agent and operates on the client’s instructions. This is the “client-centric” approach. The opposing view is that the client must do what counsel says. That the lawyer knows best. This is the “lawyer-centric” approach. In Ontario, the courts have ruled that neither approach is correct. Note that the words “counsel”, “advocate”, “solicitor”, “barrister” and “lawyer” are used interchangeably here, by courts, commentators and the general public.
The late Justice G. Arthur Martin characterized the defence counsel’s role as that of an “independent professional adviser.” He wrote in G. Arthur Martin, The Role and Responsibility of the Defence Advocate (1970) 12 Crim. L.Q. 376 that “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.”
Justice Martin stated that the client is entitled to make three fundamental decisions in respect to their case: whether to plead guilty, whether to waive the right to be tried by a jury, and whether to testify. He stated that all other decisions are to be made by counsel, albeit with effective communication of the reasons for those decisions to the client. The courts have since found that there are other decisions that are “fundamental to the defence of the case” and for which counsel must obtain instructions, such as whether to have a preliminary inquiry or proceed directly to trial, and whether to advance a defence of not criminally responsible by reason of mental disorder (which can lead to indefinite detention in a psychiatric hospital).
Subject to those fundamental decisions, the courts have generally continued to endorse a “lawyer-control” view of the solicitor-client relationship in the criminal context. In R. v. Faulkner, 2013 ONSC 2373, affirmed 2018 ONCA 184, for example, Justice Code reviewed several authorities on the issue and remarked that in criminal, unlike civil, litigation, “there are only a small number of fundamental decisions where the client ‘calls the shots’. Otherwise, counsel is responsible for the conduct of the defence and counsel must exercise independent judgment as to what is in the client’s best interests and as to whether any particular course of conduct is consistent with counsel’s duties as an officer of the court.” The justification for that lies in the fact that “[t]he lawyer’s value to each client stems in large part from the independence of his stance, as a professional representative rather than as an ordinary agent.” The idea of counsel as the client’s mouthpiece “is destructive of the lawyer’s usefulness.” Lawyers are retained by clients for their legal expertise and know-how. To solve their problems, or at least improve their chances and minimize their losses by applying legal strategy. It follows that counsel should not act as a simple agent for the client by merely taking and executing instructions. It is critical that a client benefits from the lawyer’s professional judgment and independent perspective.
The surgeon analogy is apt. The patient decides whether to submit to surgery, but does not tell the surgeon how to perform the operation. Similarly, the conduct of the case is generally the purview of defence counsel, not the client. Defence counsel work in collaboration with clients. While there is an obligation to be attentive to a client’s needs and wishes, counsel also has a professional duty not to leave them to conduct their own case. The practice of law (like surgery) is an art that requires legal skill and knowledge that is learned with experience. It is this knowledge, skill and experience for which the client seeks the lawyer’s services.
The Supreme Court of Canada weighed into the debate in R. v. Jordan, 2016 SCC 27 and R. v. Cody, 2017 SCC 31. The Court stated that defence counsel decide what if any motions or arguments of law should be brought, and what facts should be marshalled before the court. Defence counsel is also entitled to concede points, abandon motions, and make admissions where appropriate, without consulting the client. It is entirely within counsel’s purview to focus the case and the triable issues. Counsel are professionally expected, to focus in on what matters and make admissions where appropriate to narrow the issues. It is also still generally the view that “it is defence counsel, not the client, who decides what witnesses to call, whether to cross-examine a witness, and if so how the cross-examination should be conducted.”
A client may think that defence counsel has a duty to raise every argument and bring every motion that can be brought on behalf of the client, in particular when that aligns with the client’s wishes. But counsel’s duty, based on the Ontario Rules of Professional Conduct, is in fact “to raise fearlessly every issue, advance every argument and ask every question, however distasteful, that the lawyer thinks will help the client’s case and to endeavor to obtain for the client the benefit of every remedy and defence authorized by law.” Professional judgment is expected to be exercised, and it is to be exercised by the lawyer. This is not to suggest that counsel acts with no consideration for the client and their wishes. Some decisions are open to debate and the client’s preferred course should certainly be taken into account and may even carry the day. Ultimately, as an independent professional, the lawyer should not appear to be acting at a client’s whim. The lawyer owes it to the client to exercise professional judgment so that the client can benefit from it.
Ultimately, the most fundamental choices in the criminal proceeding are made by the client:
- Whether to plead guilty or not guilty;
- Whether to accept or forego a plea deal in favour of going to trial;
- Whether to request or waive a preliminary inquiry;
- Whether to exercise the right to a trial by jury;
- Whether to advance a defence of “not criminally responsible”; and
- Whether to testify in their own defence.
These properly informed decisions must be made freely and solely by the client. Only once those decisions are made can the lawyer move ahead and advocate on the client’s behalf.
In R. v. Sinclair, 2010 SCC 35 (CanLII),  2 SCR 310 at paragraphs 161-169; the Supreme Court of Canada reminded us that:
… Lawyers are bound by their oath of office, by the rules that govern their profession and by their status as officers of the court. They must ensure that the interests of their clients, however zealously advocated, remain subject to society’s interest in ensuring the orderly and ethical resolution of legal disputes. This Court has long emphasized the essential role that lawyers “are expected to play in the administration of justice and the upholding of the rule of law in Canadian society”
… the obligations of the lawyer extend beyond his or her client, and mandate a role that is “vital to the maintenance of order in our society and the due administration of the law in the interest of the whole community” Rather than having a detrimental effect on the administration of criminal justice, the role played by lawyers actually furthers and ensures the proper administration of justice. … the lawyer’s role as officer of the court extends to the pre‑litigation stage: “As an officer of the court, the advocate plays an essential role in our justice system, in representing the rights of litigants before the courts, but also at the preceding stage of settling disputes”
The assistance of counsel is a right granted not only to detainees under s.10(b) of the Charter, but a right granted to every accused by the common law, the Criminal Code and ss.7 and 11(d) of the Charter. It is not just a right to the assistance of counsel, but to the effective assistance of counsel, and one that this Court has characterized “as a principle of fundamental justice”
In Canada (Attorney General) v. Federation of Law Societies of Canada, 2015 SCC 7 the Supreme Court of Canada began the judgement at paragraph 1 with:
“Lawyers must keep their clients’ confidences and act with commitment to serving and protecting their clients’ legitimate interests. Both of these duties are essential to the due administration of justice.”
Finally, John Davis, former United States Solicitor General placed the role of lawyers in perspective when he remarked that:
“True, we build no bridges. We raise no towers. We construct no engines. We paint no pictures. There is little of all that we do which the eye can see. But we smooth out difficulties; we relieve stress; we correct mistakes; we take up other men and women’s burdens and by our efforts we make possible a peaceful life.”
As lawyers, our role is complex yet critical to ensure the orderly functioning of society in general and the criminal justice system specifically. Through loyalty to our client and strong advocacy, we ensure that justice exists for everyone.
© 2019 Hans John Kalina is a lawyer at the Law Office of Kalina & Tejpal and can be reached at (416) 900-6999.