Lawyering up and why you should- Part II


Last week, I addressed the importance of contacting a lawyer at the time of arrest.

This week, I will be covering the many benefits of retaining a lawyer in advance of a set court date.

Of course, if an accused individual is in custody, it is extremely important to get a lawyer to assist with the issue of judicial interim release (commonly referred to as bail). (I wrote an overview of Canada’s bail system at the beginning of November (http://www.londoncriminaldefence.com/the-end-of-innocence/).) Of course, each case is unique, so it is vital to have a discussion with legal counsel prior to determining the best course of action on a go-forward basis.

With the vast majority of criminal cases, the accused individual will be released from police custody right after being charged and will be assigned a court date that he is required to attend.

For some types of charges, if a lawyer is retained in advance of the court date, the lawyer can attend court without the accused necessarily having to be present (this can vary depending on a number of factors, so it is key to speak with legal counsel about this issue in advance of a court date).

The lawyer will then obtain disclosure from the Crown. (This may sometimes take weeks or months, depending on the complexity of the investigation.) Essentially, disclosure is a copy of all relevant evidence stemming from an investigation. The lawyer will review the disclosure and will contact the accused in doing so.

The Crown will almost always provide sentencing positions, revealing what the prosecution would seek on sentence if the individual were to plead guilty without the need for trial along with what would be sought on sentence if the accused were to be found guilty at trial. (The former offer is typically a lower position, meant to incentivize the accused to plead guilty rather than to take the case to trial.)

Even if an accused individual feels that he is “guilty as charged,” it can often be beneficial to contact a lawyer. Investigations are seldom perfect. A highly trained, competent, and experienced criminal defence lawyer can often point out potential issues with the Crown’s case. These issues can sometimes be significant enough for the Crown to decide not to proceed with a prosecution. Of course, even if the Crown proceeds with a prosecution, the defence lawyer may be able to persuade the Court that the Crown has failed to prove guilt beyond a reasonable doubt, as a result of issues with the Crown’s case, which would result in an acquittal at trial. In other cases, in discussions with the Crown, the defence lawyer may be able to persuade the prosecution to reevaluate its sentencing position in recognition of the existence of potentially triable issues.

Having a strong advocate can make all the difference in the world for an accused individual. Negotiating the criminal justice system on one’s own can be a nightmare. It can also be very difficult to separate emotions from reason and logic if an accused individual tries to represent himself. As the old adage goes, “He who represents himself has a fool for a client.”


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About Brandon Trask

Brandon Trask is a regular blog contributor and former colleague of Daniel Murphy and currently a doctoral student at the University of Toronto’s Faculty of Law. He was formerly a Crown Attorney in Newfoundland and Labrador. Brandon holds law degrees from the University of Manitoba and the University of Toronto.