CCRM308 – Week 4: The Defence
Monday, February 3 , 2014
We’ve looked at Judges (week 2) and Crowns (week 3), today we’ll look at the Defence, with a guest speaker,
- While Crowns are not supposed to “win” or “lose”; they are there to present the facts and act for the
State, while the Defence only cares about the client. It is important to note that the Defence are acting
in best interest of the client, not the case. You must separate moral/professional compass
• The idea behind this: act as the advocate for that individual
- If the Crown takes things personally, they are likely to make mistakes and thus it can act in the Crown’s
favour – a good defence lawyer can sometimes have a guilty client walk free, unfortunately
- We should accept guilty people go free, but we should not accept innocent people being imprisoned –
rule of law
- Charter arguments: even if someone is found with drugs/guns in the back of the car but the officers
arresting neglect to follow the rule of law, then factually the person may be guilty, but the police cannot
be seizing evidence in such a manner. So, the Charter is put into play to protect citizen rights
- What makes a “good” lawyer? Reputation, testimonials/referrals, price? etc…
• True believers: every case is about police corruption, beating a confession out of their client.
Aggressive, powerful, often thought of as giving a “bad name”
• Part of the rule of law: Dr. Smith case, if the defence lawyers were not aggressive, then we
would not have known about these wrongful convictions. These lawyers keep the system
honest; makes sure the officers do their job.
• One lawyer in the US: Adam Reposa (“lawyer, patriot, champion”) oh.. my… god.
Crude motion in front of judge got him jailed for 90 days: gave a jailhouse interview. The
most important thing in the case is respect for the court system and irrespective of the
facts. His client was innocent, and he felt he was prevented from doing his job he made
an immature gesture, and this case makes it clear that conducts that are inappropriate
and disrespecting the court system will carry this kind of sanction. You are expected to
behave with utmost respect in the court even if your client’s rights are being violated.
You can be aggressive, but you must respect the system.
- Many clients will blame the lawyer no matter the evidence or confession. What is the relationship
between the Defence and the client?
Privilege: Two Important Starting Points
- (1) The privilege belongs to the privilege holder
- (2) Only the privilege holder may waive the privilege
- The privilege exists for the client; the Defence has the duty to keep the information privilege, but the
client can decide if they want to waive 1) Solicitor-Client Privilege
- It protects any communications between the client and the solicitor (and his or her agents) for the
purpose of seeking and providing legal advice
- LSUC Rules of Professional Conduct
• 2.03 (1) A lawyer at all times shall hold in strict confidence all information concerning the
business and affairs of the client acquired in the course of the professional relationship and shall
not divulge any such information unless expressly or impliedly authorized by the client or
required by law to do so.
- Exception: Facilitating a Criminal Purpose
• Legal advice must be lawful to attract privilege. Where the communications are criminal or made
to obtain legal advice to fac