A glimpse into daily life in and out of court
The phone rings. A police officer puts you through to your client in jail, who has been arrested for a criminal offence. Whether it’s your first call or your thousandth, 1:00 a.m. or 1:00 p.m., it’s still exciting for a criminal lawyer.
Criminal practice is a fast-moving river. In that initial telephone call, we advise the client of their rights under s. 10(b), find out the offence they’re being charged with, and arrange to meet them at the courthouse where they will be held until they have a bail hearing. At the provincial court hearing, we advocate for our client’s release, citing the primary (will the client attend court?), secondary (will the client commit other offences while on bail?) and tertiary (is the client’s detention necessary to maintain confidence in the administration of justice?) grounds for bail.
After the bail hearing, a decision is made whether to plead guilty or not guilty. That decision is made in consultation with the client, and in light of facts contained in the disclosure from Crown Counsel.
If the client pleads guilty, there is a sentencing hearing, where the court crafts an individualized sentence based on the submissions of both Crown and Defence counsel, and any victim impact statements, keeping in mind the principles of sentencing: denunciation, deterrence and rehabilitation. Depending on the seriousness of the offence, these principles carry greater or lesser weight in relation to each other. There are lots of other considerations that go into the ultimate sentence as well: aggravating and mitigating factors of the offence, Gladue considerations for those with Indigenous or Aboriginal heritage, level of intent, drug and alcohol addictions, mental health concerns. All of these factors play a role in the ultimate sentence.
If the client pleads not guilty, the matter is referred to the trial coordinators to set a date. The date estimate is based on pretrial applications, voir dires to determine the admissibility of evidence, number of Crown and Defence witnesses, and how complex the case is. In some cases, we set a preliminary hearing, with the trial later in Supreme Court, depending on the seriousness of the matter and whether the defence wants to test the Crown witness’ reliability and credibility under oath.
At trial, the Crown opens with an Opening Statement and then proceeds to call their witnesses. Defence has the opportunity to cross examine each witness, to try and get the witness to give evidence that supports their theory of the case, or to discredit some aspect of the Crown case. After the Crown closes their case, Defence has the opportunity to call their witnesses, including the accused, or they can decide to not call any witnesses if, in their view, the Crown has not met the burden of proving beyond a reasonable doubt that the accused is guilty. If the Defence doesn’t call any evidence, they submit to the judge last. If the Defence does call evidence, the Crown has the opportunity to submit last.
A criminal lawyer’s primary duty is always as an officer of the court. We do not, and cannot, submit anything we know not to be true or to allow an accused to take the stand and testify to a fact or piece of evidence we know to be a lie. Crown is an administrator of justice and should not zealously advocate; the Defence is an advocate for our client and pursues every proper avenue for the accused.
Lisa Jean Helps is a senior criminal trial and appellate lawyer practising since 2004 at Helps Law Corporation in Vancouver.