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SECTION THE HERALD Wednesday April IB83 Page How can lawyers defend guilty clients How can you defend someone who is guilty This is perhaps the most frequently asked question of any lawyer in Canada The following excerpt drawn from a article by the Hon Mr Justice Walter Schroeder then a member or the Ontario Court of Appeal address es the obligation of a lawyer defending a client whom he believes may be guilty with permis sion from the Law Society or Upper Canada from Its 1963 special lectures The very nature of the advocates task makes it Inevitable that he will ever bo confronted with ethical problems of the greatest nicety which Imperatively demand sol ution Since he makes his services available to those who seek to retain him he assumes a weigh ty obligation to his client but there his duty does not end for he is also bound by a duty to the Court to the State to his opponent and to himself There Is an honorable way of defending the worst of cases and no less an upon crim inal law than Sir Harry Bodkin C put it rather tersely saying He is to get an acquit tal if he can whatever the merits of the case may be That view so pithily expressed raises the question as to a counsels ethical duty as disting uished from his forensic duty and as to whether Iho two can be reconciled or must be regarded as mutually exclusive Jeremy al lowed his leal for he suppression of crime to carry him so far as to regard counsel who suc cessfully defended a criminal whether he knew him by his confes sion to be or only believed him to be guilty in the light of an acces sory after the fact I would observe that Bentham disregarded the true function of the advoc ate defending a man ac cused of a crime The advocate docs not express his own views but he marshals the facts and In the skilful present ation of them he says all that can be said In favor of his clients view of the facts It is thus no more proper to charge him with insincerity or duplicity than to make that charge against a member of a debating club who has laid upon him the task of supporting the affirma tive or negative side of an argument on a subject not of his choosing and per haps on a side which docs not appeal to him Dr Johnson a contem porary of Bentham was a stem moralist of robust good sense and while not A mans rights are to a member the legal be determined by the profession which he al- Court not by his advocate ways held In high regard or counsel It is for want he disposed of the of remembering this that lem In a reported discus- foolish people object to ably influence the advice that he would feel dispos ed to give the client as to the conduct of the case the broader ques- be expressing his own before the tribunal all beliefs or his own honest- that can be said on behalf ly held but of his clients all that not who when he is In the the client would have said forensic arena What he for himself If he bad with his biographer which has of ten been quoted BOSWEIX But what do you think of supporting a cause which you know to be bad JOHNSON Sir you do not know it to be good or bad till the Judge deter mines it You an the facts clearly you thinking or what you call knowing a cause to be bad must be from reasoning must be from supposing you arguments be weak and that they will advocate a case against their own opinions A client is entitled to say to his counsel I want your not your judge ment I prefer that of the Court lion as to whether he says there Is not end is not possessed the skill and should or should not to be presumed to be the knowledge adequate to expression of his own mind Moreover he has no right to assert his belief in his clients inno cence or in the justice of While counsel who takes any case owes it to slate to jj in full possession of all the material facts he is un der no ethical constraint to satisfy himself vesication that his client is in the right before he undertakes the duly of undertake the case or having undertaken It whether he con tinue to represent the client his personal beliefs or opinions are wholly irrelevant In the ordin ary affairs of life an advocate may be taken to the It Is not for counsel to assume to pre judge the Issue his princi pal concern being that the ThatlTone does not pronounce thing that he must Judgement before having refrain from doing heard all that could possl- It is his business to place be urged on his side RULE OF LAW Should police obey same laws But Sir that is not him enough An argument for to which docs not the clients story yourself may convince improbable and to be the judge to whom you rejected by him To do urge it and If It does that would be to usurp the convince him why then Sir you are wrong and he from By DAVID MATAS A Winnipeg Lawyer The rule of law means the absence of arbitrary It means equality before the law It means a focus on remedies Those were the three the McDonald Commissi on reexamined this tra ditional concept of the rule of law Counsel for the submitted that police had the power to commit acts that would be unlawful If committed by the public bcinB different meanings given was required was that the They maintained all lhat one else Hon a good defence to a charge the police had acted illegally The commission con cluded there Is no general defence of reasonable necessity open to the police They are subject to the same law as every to Judge and you to be confident In your own opinion that a cause Is bad but to say all you can tor your client and then hear the Judges able such a course could only lead in most Instanc es to great injustice Ex perience in the courts has demonstrated again and again that Improbable stories can be and arc true despite their appar ent improbability What ever counsel may private ly think about the truth fulness of the client or of any of his witnesses or whatever doubts he may sons pronouncement entertain about a he stated alibi would Almost a century after Dr Johnsons death Bar on Bramwell delivered a judgement In Johnsons v Emerson In which he expressed broadly the substance of Dr John- the rule of law by AV Dicey in his book Intro duction to the Study of the Law or the Constitution Equality before the law means everyone is subject to the same law acts be reasonably necessary for the per formance of police duties The Canadian Bar Association appearing before the Commission argued that the police did Laws do not differ for not have a general power those in power and for the public The highest government of Canada however dis agreed with the commiss ion The government maintains despite the McDonald Commission Report that there is one law for the police and another for the public In in the land is subject the same law as everyone else The Commission of In quiry Concerning Certain Activities of the to commit that would other words it maintains be illegal if committed by that the defence members or the public The defence that the acts were reasonable necessary for the per formance of police duties was not to the The judicial function- by Marvin A Pro viocial court J Ontario The function of the judge is In its simplest and yet most majestic form the use of his judgement making choices where there are no clear mandates re quiring him to decide one way or the other Another generalization is compelling is that the only judge most citi zens will ever see or know at first hand Is the trial Judge He Is In most communities the embod iment of justice It Is bis style the tone of his performance and the re sults that emerge from his courtroom lhat give the law its character and flavour For most people other judges and other courts are remote and quite commonly of only passing interest at The judge Is the umpire in the contest that every legal case becomes under the adversary Justice system It Is assumed that the judge as umpire is neu tral It is his obligation to be But the neutral umpire is not strictly confined to making simplistic judge ments based on arbitrary rules for the legal contest He can and often does Intervene deeply and di rectly in the case Itself while it Is in preparation or after it la in prepara tion or after It hot gone to trial MUST RULE A significant part of his role is to keep the case in proper bounds legally by ruling on points of law and procedure But just as Important more Important actually for the trial Judge is the part he plays In seeing that the facts are brought out as fully as is to make a legal Judgement upon them A trial judge often In vites opening statements by lawyers prior to the commencement of a case The opening statement puts before the court a clear statement in narra tive form of the facts and Issues The parties are identified and in a jury case a brief outline of the background of the plain tiff If relevant to a claim for damages is mention ed Reference is also made to any legal principles which may apply You must keep in mind that the jury is the sole Judge of the facts while the trial judge is the sole Judge of the law Trial Judges are obliged to use their authority to control the conduct of all participants In the trial They must ensure a fair and impartial adminis tration or justice Judges must avoid conducting themselves so as to threaten their ability to remain impartial with re spect to the proceedings before them Did You Know There are approximate ly offences listed In the Criminal Code of Canada Canadians are subjected to an estimated federal offences for example the Income Tax Act the Fisheries Act and some provincial offence for example Highway Traff ic Acts Environmental Protection Acts as well as countless offences created by- municipal laws Less than 10 per cent of all crimes in Canada involve violence Our Clinic Helps Those With Legal Problems By Giving Summary Legal Information and Advice Assisting people to obtain the legal representation they require Representing low income residents in the area of land lordtenant rent review welfare workers compensation and unemployment insurance law THERE IS NO CHARGE FOR ANY OF OUR SERVICES SERVING ACTON GEORGETOWN MILTON GRANT ISAAC BCOM IAB BARRISTER SOLICITOR NOTARY Suite Plaza Road South Georgetown Ontario 416 Toronto Toll Freo 7910619