Role of the Defence Counsel

From Criminal Law Notebook
This page was last substantively updated or reviewed March 2021. (Rev. # 89936)

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 is 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]

Duty to Streamline

For the purposes of analysis under s. 11(b), the defence have an obligation to avoid promulgating a culture of delay.[10]

There is suggestion that defence have some obligation to "identify ... issues that will actually be in play at trial", which should be used to assist the court streamlining evidentiary issues.[11]

  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), 282 CRR (2d) 95, per Code J, at para 39
  3. Faulkner, ibid., at para 39
    R v Samra, 1998 CanLII 7174 (ON CA), 129 CCC (3d) 144, per Rosenberg JA, at paras 30 to 33
  4. R v GDB, 2000 SCC 22 (CanLII), [2009] 1 SCR 716, per LeBel J, 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), 180 CCC (3d) 498, per Rosenberg JA
  7. R v Prebtani, 2008 ONCA 735 (CanLII), 240 CCC (3d) 237, per Rosenberg JA
  8. Prebtani, ibid.
  9. R v Harrison and Alonso, 1982 ABCA 152 (CanLII), 67 CCC (2d) 401, per curiam
    R v Salha, 2007 ABQB 159 (CanLII), 414 AR 395, per Lee J, at para 24
  10. Delay of Trial
  11. R v ZWC, 2021 ONCA 116 (CanLII), per Strathy CJ, at para 100

Civility

Trials are not "tea parties." But "disruptive and discourteous conduct" is antithetical to peaceful and orderly resolution of disputes.[1] It is also said that a "trial is not open season’ for attacks on opposing counsel and litigants."[2]

A mistrial may be required where the conduct is inappropriate such as in the use of:[3]

  • “unrestrained invective” (at para. 34).;
  • “excessive rhetoric” (at para. 34).;
  • “The tone of [counsel's] submissions … descended from legal argument to irony to sarcasm to petulant invective” (at para. 64).
  • “[counsel's] theatrical excess reached new heights …”.
  • “[counsel's] conduct on this occasion more resemble guerilla theatre than advocacy in court” (at para. 91).
  • “unrestrained repetition of … sarcastic attacks";
  • “[counsel's] defence consists largely of attacks on the prosecution, including attacks on the prosecutor’s integrity” (at para. 272).
  1. Groia v Law Society of Upper Canada, 2018 SCC 27 (CanLII), [2018] 1 SCR 772(complete citation pending), at para 2 ("Trials marked by strife, belligerent behaviour, unwarranted personal attacks, and other forms of disruptive and discourteous conduct are antithetical to the peaceful and orderly resolution of disputes we strive to achieve.")
  2. Landolfi v. Fargione, 2006 CanLII 9692 (ON CA), [2006] O.J. No. 1226 (C.A.){{perONCA|Cronk JA}, at para 98
  3. Carleton et al v. Beaverton Hotel et al, 2010 ONSC 898 (CanLII), per Ferguson J, at para 9

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), 267 CCC (3d) 155, per Welsh JA
  2. Redican v Nesbitt, 1923 CanLII 10 (SCC), [1924] SCR 135, per Idington J
  3. R v Morgentaler, 1988 CanLII 90 (SCC), [1988] 1 SCR 30, per Dickson J and Beetz J and Wilson J
    R v Latimer, 2001 SCC 1 (CanLII), [2001] 1 SCR 3, per curiam

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), 172 CCC (3d) 415, per Biron JA, at para 88
    see also CBA Code of Professional Conduct
  2. R v Li, 1993 CanLII 1314 (BCCA), 21 WCB (2d) 497, per McEachern JA, at paras 48 to 74
  3. Li, ibid.
  4. R v Moore, 2002 SKCA 30 (CanLII), 163 CCC (3d) 343, per Tallis JA
  5. R v Murray, 2000 CanLII 22378 (ONSC), 144 CCC (3d) 289, per Gravely J

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 MQ, 2012 ONCA 224 (CanLII), 289 OAC 316, per Goudge JA, at para 26
  2. see R v Widdifield, 1995 CanLII 3505 (ON CA), 25 OR (3d) 161, per Doherty JA, at pp. 171-172
  3. R v Neil, 2002 SCC 70 (CanLII), [2002] 3 SCR 631, per Binnie J, at para 31
  4. Neil, supra

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]

Defence counsel is obliged, "within ethical and legal limits", to protect the interests of their client.[3]

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:[4]

  • 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 miscarriage of justice."[5]

It is often advisable that counsel have instructions provided to them in writing.[6]

Instructions Against Interest

Where counsel receives instructions that will "imperil" imperil the accused's interests, counsel is obligated to resist those instructions, but if unsuccessful, should follow them.[7] It is recommended that defence counsel should prefer getting the instructions in writing rather than simply withdrawing as counsel.[8]

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.[9]

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."[10]

In fact, "there are only a small number of fundamental decisions where the client 'calls the shots'."[11]

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.[12]

  1. R v GDB, 2000 SCC 22 (CanLII), [2000] 1 SCR 520, per Major J, at para 34
  2. E.g. See discussion in Stewart v CBC, 1997 CanLII 12318 (ONSC), 150 DLR (4th) 24, per MacDonald J
  3. R v Joanisse, 1995 CanLII 3507 (ON CA), 102 CCC (3d) 35, per Doherty JA (3:0) leave to appeal refused, [1996] SCCA No 347
  4. GDB, supra, at para 34
  5. GDB, supra, at para 34
  6. e.g. see R v Beuk, 2004 CanLII 53603 (ONSC), per Hill J, at para 40
  7. Joanisse, supra
  8. Joanisse, supra at footnote 15
  9. R v Samra, 1998 CanLII 7174 (ON CA), 129 CCC (3d) 144, per Rosenberg JA
    R v Faulkner, 2013 ONSC 2373 (CanLII), 282 CRR (2d) 95, per Code J, at paras 27, 39
  10. Samra, supra
  11. Faulkner, supra, at para 39
  12. R v Connors, 2011 NLCA 74 (CanLII), 981 APR 234, per Welsh JA, at para 11

Withdrawing as Counsel

Where there is a request to withdraw well in advance of trial. It should normally be granted without enquiring into the reasons.[1]

Counsel may reveal reasons for the request to withdraw, such as for ethical reasons, non-payment or workload, without risking breach of privilege.[2]

Courts "must accept counsel's answer" on the reasons for withdraw at "face value" and not inquire further.[3]

Right to Discharge

The accused has an unfettered right to discharge their legal counsel at any time for any reason.[4]

Withdraw for Ethical Reasons

A judge must grant any request by counsel to withdraw for ethical reasons.[5] For the grounds to be "ethical" related, it must be that it has become "impossible" for counsel to continue in "good conscience", such as a requirement that professional obligations be violated or refusal to listen to advice on an important issue.[6]

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.[7]

Withdraw for Lack of Payment

A judge had discretion to refuse a request to Withdraw for non-payment of fees.[8]

Factor to consider on a withdraw for failure to pay fees include:[9]

  • whether it is feasible for the accused to represent himself or herself;
  • other means of obtaining representation;
  • impact on the accused from delay in proceedings, particularly if the accused is in custody;
  • conduct of counsel, e.g. if counsel gave reasonable notice to the accused to allow the accused to seek other means of representation, or if counsel sought leave of the court to withdraw at the earliest possible time;
  • impact on the Crown and any co‑accused;
  • impact on complainants, witnesses and jurors;
  • fairness to defence counsel, including consideration of the expected length and complexity of the proceedings;
  • the history of the proceedings, e.g. if the accused has changed lawyers repeatedly.

In all factors, the court must consider whether a withdrawal would cause "serious harm to the administration of justice."[10] The relevant harm will include that harm to other persons affected by prolonging the proceedings, including "complainants, witnesses, jurors and society at large."[11]

Whether the time booked can be used for other purposes is not a relevant factor.[12]

Returning Documents in Possession of Counsel

A discharged lawyer has a common law right to exercise a lien on documents in his possession.[13] If counsel withholds materials, they must inform the crown and the court that he is doing so.[14]

  1. R v Cunningham, 2010 SCC 10 (CanLII), [2010] 1 SCR 331, per Rothstein J, at para 47
  2. Cunningham, ibid., at para 48
  3. Cunningham, supra, at para 48
  4. Cunningham, supra, at para 9 ("An accused has an unfettered right to discharge his or her legal counsel at any time and for any reason. A court may not interfere with this decision and cannot force counsel upon an unwilling accused")
  5. Cunningham, supra, at para 49
  6. Cunningham, supra, at para 48 ("ethical reasons means that an issue has arisen in the solicitor-client relationship where it is now impossible for counsel to continue in good conscience to represent the accused.")
  7. e.g. see R v Denny, 2014 NSSC 334 (CanLII), per Rosinski J, at para 22
  8. Cunningham, supra, at paras 17, 50
  9. Cunningham, supra, at para 50
  10. Cunningham, supra, at para 50
  11. Cunningham, supra, at para 51
  12. Cunningham, supra, at para 51 ("...whether allotted court time can be otherwise usefully filled is not a relevant consideration in this balancing of interests.")
  13. R v Gladstone, 1971 CanLII 500 (ON CA), [1972] 2 OR 127, per McGillivary JA
    see also R v Dugan, 1994 CarswellAlta 492 (ABCA) (*no CanLII links)
  14. Dugan, ibid.

Sitting in Court and Order of Matters to be Called

The order in which matters are called is determined by the province's Barrister Act or Law Society Act.[1]

A Justice of the Peace has the authority to order that paralegals not be allowed to sit in the area reserved for Barristers.[2]

In Ontario, it is recommended that the Crown call the list rather than the judge–even where legislation suggests seniority ordering–given that the Crown will "likely has greater knowledge of it than does the judicial officer."[3]

The judicial officer has the jurisdiction to decide what method of ordering is applied, whether it is alphabetically, "first-come, first-served", or seniority of the defending counsel.[4]

Economic impact of being called later in the docket, alone, is not enough to amount to a impugne rights under s. 7 of the Charter.[5]


  1. ON: Law Society Act RSO 19909, c L.8
  2. R v Lippa, 2013 ONSC 4424 (CanLII), per Fuerst J, at paras 21 to 26
  3. Lippa, ibid., at para 36
  4. Lippa, ibid., at para 37
  5. Lippa, ibid., at para 39 (citing Siemens v Manitoba (Attorney General), 2003 SCC 3 (CanLII), [2003] 1 SCR 6, per Major J "ability to generate business revenue by one’s chosen means is not a right that is protected under s. 7")

See Also

Other Parties