Practice Recommendations on Criminal Law for Law Students (1:XIII)

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on July 27, 2021.

Practice Recommendation - Ensuring the Crown Can Prove Its Case

Prior to asking an accused what happened from their perspective, some counsel want to review the nature and character of the charges and the possible defences with the accused. Even if the client admits their guilt, an accused must be advised regarding the strength of the Crown’s case. A criminal defence lawyer has an ethical obligation to pursue any viable defence, even if only as a negotiation tactic. There is nothing unethical about running a trial with regards to a client who admits their guilt, as long as the clinician is not misleading the court and the client does not take the stand to testify.

Practice Recommendation - Explaining a Client’s Options

Be very sure that the accused understands exactly what they are pleading to, and the consequences of their plea. Also, be very sure that the accused understands that it is ultimately their decision as to which option to apply. Ensure that the accused person understands the consequences and risks of going to trial, any possible defence they may have and the difficulties in raising such a defence. Students must never force an accused person to choose a particular option, particularly one where the accused is required to admit guilt. It is always the client who ultimately decides the course of action they wish to follow. The accused may ask the student what they should do or what option they should take. The student should always remind the client that the choice is up to them, and refrain from telling the client what to do. Explain the options open to the client again and review the risks and consequences facing the client for each option. However, the student must not counsel a client to plead guilty unless they are actually guilty AND the Crown can prove its case beyond a reasonable doubt. In explaining the student’s assessment of whether Crown can prove its case beyond a reasonable doubt the student should never give clients “odds” or their chances of winning an acquittal. Rather, students should point out the possible defences available to the client and the difficulties, if any, of arguing such a defence. Common Ethical Situations Arising in Assisting a Client with their Options In certain circumstances, the course of action the client wants to take may render the student unable to represent the client, for example, if the client insists on illegal or unethical instructions, or where the client wishes to plead guilty for convenience. Some examples of this are as follows: “I didn’t do it, but I want to plead guilty because this is taking too much time away from my job, and it is just more convenient if I plead guilty.” Students have an ethical duty to ensure that the innocent do not plead guilty. Particularly, students cannot represent clients in cases where they wish to plead guilty for the purposes of convenience, not because they actually admit guilt. “What if my wife/girlfriend/husband/boyfriend (complainant) doesn’t come to testify?” At this point in time, the accused may ask what would happen if the complainant does not attend court to testify, even if summoned. Inform the accused that if the key witness does not attend at court, Crown may stay the charges against the client. If a Crown witness wishes not to attend to testify, they should obtain independent legal advice. If any witness has been summoned and fails to attend to a summons, they can be arrested and even jailed. In addition, the accused should be advised that if they tell a witness not to attend court to testify, they would be committing the criminal offence of obstructing justice (Criminal Code, s 139).

Practice Recommendation - Contacting Crown Witnesses

If, while preparing for trial, the defence must contact a Crown witness for whatever reason, the defence must be extremely careful in its approach and speak to a supervising lawyer before contacting the witness. There is no property in a witness and the defence may contact Crown witnesses. However, the witness is not required to speak with the defence and this must be made clear to the Crown witness. It should also be made clear to the Crown witness that the law student is representing the client, and as such may be in conflict with the witness’ interests, and is in no position to provide the witness with legal advice. If a student chooses to interview a Crown witness, they should never do so alone. Another student should attend and should take notes of the conversation in case a dispute develops about what was said in the interview or the circumstances in which the interview took place. The witness may be required to give evidence as to what happened. If interviewing the Crown witness by telephone, a witness should be present via conference call or speakerphone. The student must be careful to avoid any appearance of impropriety or witness tampering, and must never, either explicitly or implicitly, advise a Crown witness to not attend court when summoned. Note: if there is a no-contact order in place, the clinician can contact the witness only to discuss the trial, but the client cannot.Italic text

1. Challenging the admissibility of evidence

Prior to the trial commencing one should have reviewed the key evidence in the case and identified potential challenges to the admissibility of that evidence. One should consider if the admissibility issue or Charter challenge to the evidence can be canvassed with Crown counsel prior to the start of a trial. Generally, unless there is a good strategic reason to not inform Crown counsel, (i.e., informing the Crown will allow it to call additional evidence that the defence knows is available, but is not currently being called) admissibility issues should be brought to the Crown’s attention ahead of time.

Challenging the admissibility of evidence is perhaps the most important work that the defence can perform as an advocate for the client, as lay litigants are ill-equipped to recognize and challenge inadmissible evidence. Rules of admissibility of evidence tend to be complex issues that require a critical analysis of the law followed by an application of the law to the facts. Diligent preparation would allow the student to present challenges to the admissibility of evidence and have inadmissible evidence excluded from the court’s consideration. Some challenges to the admissibility of evidence are simply made through objections and legal arguments at the time Crown seeks to adduce the evidence, while others will require the court to hear additional evidence that is relevant to its admissibility.

2. Setting the trial date

LSLAP clinicians are encouraged to, but are not required to, appear in court to set a trial date. The trial date must be set with the approval of the supervising lawyer and according to LSLAP’s trial availability. Before attending court to set a trial date, confirm the length of time needed by the defence with the LSLAP supervising lawyer.

NOTE: The client must still attend the Arraignment Hearing and enter a plea of not guilty in order for the trial date to be set.

3. Pre-Trial Conference (PTC)

The pre-trial conference is a procedural appearance for LSLAP files to confirm there is a trial supervising lawyer and that the matter is indeed going to trial, that there are no disclosure issues, and that Charter challenge notices have been given.

The clinician is encouraged to, but need not attend the PTC. Clinicians are reminded that they must give notice of any Charter challenges at least 14 days prior to the trial date. In addition, a trial supervising lawyer must be confirmed by the PTC in order for LSLAP to confirm the trial date.

It can be many months between the fixing of a trial date and the trial. The clinician must endeavour to remain in contact with the client during this long time period. LSLAP requires that the clinician contact the client 2 weeks before the PTC to make sure the contact information has not changed and that the client knows when to appear in court.

If the clinician is unable to get in contact with the client before the PTC, the clinician must either appear at the PTC or formally withdraw from the record by sending a letter to the court registry and Crown as well as the client. If both the student and the client attend the PTC, the student should obtain new contact information from the client. If the client does not attend the PTC, the student must formally withdraw from the record at that time. The student should never disclose that there have been attempts to contact the client, or when the last contact was, as this is privileged information and would constitute a breach of solicitor-client privilege. Even when a judge asks for this information, it is ethical practice to politely tell the judge that the information is privileged. The clinician must then mail a letter to the client’s last known address to inform them of the situation.

NOTE: In some cases, a clinician will be transferred a file after the PTC date, and find themselves unable to get in contact with the client. The LSLAP Executive and the Supervising Lawyer must deal with these files on a case-by-case basis.

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