Canadian Criminal Trial Advocacy/Beginning the Case
The case begins with the initial contact with the client. Either by phone or in person, the client will wish to have representation regarding an outstanding criminal matter.
The initial period is where the lawyer must attempt to gain as much information about the circumstances as possible. The lawyer will wish to first learn the name and location of the client, the charges laid, the name of the arresting officer, and the date and location that the charges will be heard.
Establishing the solicitor-client relationship
During the initial meeting, the lawyer should explain the meaning of solicitor-client privilege, and how the contents of the meeting are private and cannot be revealed by the lawyer, even if he is brought before a judge to testify. The lawyer may only reveal contents of the meeting with the permission of the client.
Controlling Ground Rules
It must be made clear that the lawyer controls the proceedings and not the client. Many junior lawyers make the mistake of differing too many aspects of the case to the client. The lawyer is not a mouthpiece for the client. The lawyer has the exclusive choice of which witnesses to call except in the case of the Defendant testifying.
The key decisions of the client are the choice of plea, the election of court, and the choice to testify in their own defence. The lawyer may only provide advice with respect to each decision, but cannot make the decision for the client.
General Advice and Instructions
The lawyer in most cases should advise the client the following:
- not to discuss the case with anyone as they may questioned and the information given could be used against them in trial
- not to attempt to contact potential crown witnesses as it may come out at trial and may result in further criminal charges for interfering with justice system participants
- obtain the names and contact information of potential witnesses that may be useful for the defence's case
Summary of the case
The lawyer should obtain basic background information, including:
- marital status
- living arrangement
- work history
- physical and mental health history
- addiction and counselling history
- criminal record
It is important to identify the charges that have been laid against the client. Once known, the lawyer should determine the factual elements that need to be proven by the Crown attorney to make out the offence.
The lawyer should review the disclosure before meeting to discuss the client's case. The client may be provided with a copy for their review prior to obtaining an outline of events from them.
It is particularly important to review any statement made by the client to the police.
Summary of events
From a defence lawyer's perspective, it is important to get the client's version of events as soon as possible. The client will be in the best position to provide a full summary earlier on in the proceedings than they will at a later point in the proceedings. This can be done by way of client interview in the office. The lawyer may generate a statement by taking notes or dictating summary of the interview or by recording the whole interview for transcription.
Where the client is sophisticated enough and the resources of firm is limited, it may be beneficial to have the client write out the incident on their own.
In all circumstances, the lawyer must be mindful that if the client or witness will be using the statement to refresh their memory in court, the document may need to be authenticated, and the other side will be entitled to review it and cross-examine on it. As such, it is often better to have a third party record the statement, and that the circumstances of the creation of the statement be carefully noted.
At some early stage it is essential to be clear to the client what are the possible penalties for the charges. This would likely include notifying the client of the maximum penalties (including possible crown election), but most importantly the likley penalties involved.
This can be a difficult issue to handle. Many clients want assurances on particular outcomes, especially if there is a prospect of the client going to jail. However, it is always hazardous to guarantee an outcome.
Choice of Trial (Judge or Jury)
The choice of mode of trial is critical for defence counsel and will have a significant effect on how the trial is performed. There is no hard and fast rules to when to chose a judge and jury trial.
Factors that are often considered are as follows:
- the accused's presentation
- whether the accused will testify
- whether the trial relies on technical and legal arguments
- whether there is a strong emotional appeal for the defence
- whether the case is potentially inflammatory or distasteful
- whether the crown witnesses have a strong emotional appeal
- the strength and complexity of the defence's case
- the strength and complexity of the crown's case
- who the judge is
- who the opposing counsel is
- R. v. Brown (CA 2055, Vancouver Registry, October 18, 1984), Nemetz C.J.B.C. and Craig J.A. agreeing : "An accused person does not have the right to dictate to his counsel as to how the case for the defence is to be presented. The exception to this rule is that the accused has the right to testify and cannot be prevented from testifying by his counsel."