There are a few Charter-protected rights that accused people enjoy in Canada that are fundamental to the proper functioning of our justice system. Among those, one of the most critical is the right to retain and instruct counsel.
As Frank Addario once put it in a presentation to the Trial Lawyers Association of British Columbia at it criminal justice conference: we are the only lawyers in the Charter.
But the special status that we should enjoy as gatekeepers against wrongful conviction, guardians of the presumption of innocence, and warriors for truth and justice for people facing the greatest societal stigma and the most serious charges is under attack. And this is by design, rather than by accident.
Despite being officers of the court, members of the Law Societies in which we practice, and held to the same professional and ethical standards as our colleagues in Crown Counsel, defence counsel have always been viewed with skepticism. In the early days of my career, it was small things that showed me that even though I was just as much a lawyer as anyone else, I was still equated to my clients.
Take the comments I get on almost every social media post, calling me scum, accusing me of supporting the crimes my clients are accused of (and often acquitted of), and effectively being an accomplice.
Take the fact that court clerks would routinely unlock locked courtroom doors to let Crown Counsel in the room, without letting in defence. Or that Crown were permitted to bypass COVID-19 screening requirements at front doors of the courthouse because “their office has screening policies,” ignoring the fact that mine did too, and that all businesses were required to have a COVID-19 safety plan.
When we moved to online hearings, Crown Counsel were automatically given access to the chat and screen sharing abilities as “presenters” in the system, while defence lawyers remained mere “participants” and had to ask permission to be given those powers.
Or how Crown Counsel was often given — until recent changes made it publicly available — an advanced copy of the court list so they could have a better sense of whether their trials would run or be adjourned for lack of court time based on older, more serious matters scheduled at the same time.
Those complaints may be something you could chalk up to the daily gripes in any job. Indeed, for the first eleven years of my career that is basically what I did. But not now.
Things have become a lot more serious. It appears there is an all-out war being waged against defence lawyers.
