A criminal charge is a tremendous burden to carry. After dealing with the initial shock and feelings that accompany being charged, you are left with the realization that action must be taken. This means hiring a lawyer. At a time when you are most vulnerable, you must place your life into the hands of a stranger. But how can you trust someone you have never met before?
To answer this question, it is important to understand the role that the criminal defence lawyer plays in the Canadian criminal justice system.
When a person is charged with a criminal offence, an action or lawsuit is created between two parties. However, it is not between the complainant (the alleged victim) and the accused. Instead, it is a case between the State and the accused. This means that an individual must defend him or herself against the government.
The government is an organized structure with vast and nearly limitless resources. Police, scientists, accountants, and numerous other professionals and experts are employed by the government to detect criminal activity and the person or persons responsible. Once someone is singled out as a suspect, these government resources change focus and set out to prove that person guilty.
On this unequal playing field, how does an individual stand a chance? In an attempt to balance the scales, the law entitles an accused person to a defence lawyer. This is the one and only person within the legal system that is on the side of the accused. While the rest of society may have already drawn its conclusions as to the guilt of the accused, it is the defence lawyers duty to have confidence in the truth of what his client tells him. The defence lawyer is on the side of his client and no one elses. He does not judge his client.
The presumption of innocence dictates that no person shall be convicted of an offence until proven guilty beyond a reasonable doubt. The defence lawyer brings meaning to this presumption by standing up for and fighting on behalf of his client. He does everything within the bounds of the law to defend his client.
This role is as essential to the Canadian criminal justice system as are the roles of the police, prosecutor and judge. The criminal defence lawyer must fulfil this role not only as a duty to his client but to society as well. Without the criminal defence lawyer the justice system would be rendered completely ineffective in its quest to find truth. For how can the truth be discovered unless both sides of the story are presented?
The Law Society of Upper Canada (the body that governs lawyers in Ontario) dictates that a lawyer owes a duty to his client to fearlessly raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his clients case. The lawyer must also endeavour to obtain for his client the benefit of any and every remedy and defence, which is authorized by law.
The criminal defence lawyers loyalty to his client is not a personal choice but a duty he has vowed to fulfil. This unwavering loyalty is what breeds the trust that is essential to open and frank communication between lawyer and client. Such communication is imperative to building an effective defence.