A basic goal of a good lawyer is to cultivate an informed client who is able to engage constructively in the decision-making process for his or her own case. This is especially true in criminal law where the client is regularly called upon to make choices that profoundly impact his or her freedom, ability to remain in Canada, future job prospects, ability to drive a car, ability to travel, or ability to volunteer their time with children, to name a few. As a result, it is critical that counsel have detailed discussions with a client in advance of those important decisions to ensure that the client is able to provide informed instructions. The decisions regarding a resolution offer and whether your client gives evidence are two such decision points. These examples illustrate the need for defence counsel to maintain a running conversation with clients throughout the life of their case so that the client can approach these critical decision points with the necessary information and context.
The importance of on going efforts by defence counsel to educate their clients about their circumstances has two aspects in the context of plea negotiations.
First, Parliament’s increasing turn toward mandatory minimum sentences places an increased premium on effective legal representation at the pre-trial plea negotiation stage. In many cases the most valuable contribution defence counsel can make to a client’s cause is to negotiate a resolution that limits the disproportionate impact that mandatory minimum sentences have on clients who would otherwise face a limited risk of a custodial sentence. Clear, on going conversations with your client regarding the viability of her defence and the likely consequences of a finding of guilt are necessary to ensure that when a proposed resolution crystallizes, the client has the context necessary to weigh it intelligently.
Clients bring a spectrum of attitudes toward the prospect of a negotiated resolution. Some are so ashamed of even being accused of a criminal offence they want to latch on to the first opportunity to escape the criminal justice system no matter how unreasonable the resolution offer. Others arrive with an uncanny ability to deny even the plainest of cases against them. The role of effective counsel in this context is to give an objective evaluation of the client’s case and the proposed resolution. That means laying a foundation with the client so that she knows the strengths and challenges of her defence in advance of being confronted with the choice of pleading guilty or setting a matter for trial. It can take a long time for a client to process your analysis of her case. Having this discussion over time allows the client to absorb what you tell her about the context of her case and to place a proposed resolution in that context.
The second aspect is the trend towards ever expanding collateral consequences to a criminal conviction. Not only does a criminal defendant face the immediate penalties imposed by the trial judge, she often faces a cascade of further and in many cases more serious consequences as a finding of guilt ripples through her life. A finding of guilt can have immigration, professional regulatory, civil and family law consequences. As employers and volunteer organizations gain access to ever more inclusive police background checks, resolutions that in the past were thought to have no standard criminal record consequence are now captured by vulnerable persons checks. Sex offender registry legislation imposes long term reporting requirements on clients. Which of these collateral consequences are relevant and important to a particular client can only be determined through detailed solicitor-client discussions. These consequences need to be brought to the attention of a client considering a resolution so she can properly evaluate the risks and rewards of a trial. Where the issues are outside the competence of defence counsel, the client needs the opportunity to seek an opinion from a lawyer practicing in the relevant field.
All of this is to say that an on-going dialogue with the client in the early stages of a case is necessary to develop both the client’s appreciation for the legal context of her case and a level of personal trust in counsel’s advice.
The Decision to Testify
While most of the decisions regarding the conduct of a trial rest with counsel, whether the defendant takes the stand to give evidence in her own defence is something the client must decide for herself. That decision, however, can only be made with a clear-eyed understanding of the risks and benefits of testifying.
In April, the Nova Scotia Court of Appeal ordered a new trial on the basis of ineffective assistance of counsel in R. v. Ross. Ross was charged with Sexual Interference and Sexual Assault. His defence was an honest but mistaken belief that the complainant was over the age of consent. He did not, however, testify at his trial. Among the many problems that the Court of Appeal found with the conduct of defence counsel was his opting to leave the decision about testifying entirely in Mr. Ross’s hands without any professional guidance.
The Ross decision highlights three important elements to effectively assisting a client in forming a decision about whether to testify in her own defence. First, it is critical that defence counsel understand the law, the available defences and the evidence necessary to establish those defences. A defendant can only make an informed decision about testifying if she has an accurate understanding of how her evidence fits into the overall defence argument. What important points need to be put into evidence through the defendant? Is there any other way to lay the evidentiary foundation for the defence argument? What aspects of the defence argument could be damaged by the defendant’s evidence? A client might choose to tell her story to the Court even where it is not strictly necessary or might be prepared to run the risk of trying to make out a positive defence on the basis of the Crown’s case alone. The final decision rests with the client. However, the client’s decision must be made with knowledge of how her evidence relates to the legal arguments available to her and the risks she is accepting in choosing to proceed one way or the other.
Second, decisions about the defendant’s prowess as an effective witness can only be made in the context of proper witness preparation. In Ross, trial counsel explained that he was concerned that his client would perform poorly as a witness. He was worried that Ross would “give ground” in cross-examination. The Court was skeptical. They noted that this evaluation of the defendant’s prospects as a witness was made without the benefit of any witness preparation. A person’s ability to testify effectively is not static. Giving evidence in court is a foreign experience for most people. However, explaining the informal rules around giving evidence effectively and more importantly giving the client a chance to practice telling her story within the framework of those rules are critical pre-conditions to properly evaluating the performance risks attached to the defendant testifying. There needs to be a process in the lead up to a trial to identify the client’s strengths and weaknesses as a witness and work on remedying the problem areas.
Third, the defendant’s decision about testifying should be re-evaluated as the trial progresses. It is rare that the Crown’s case at trial ends up exactly as it appeared in the disclosure brief. Sometimes the Crown fails to ask the important questions. Sometimes witnesses fail to give the important answers. Sometimes the Crown does a wonderful job of filling in every hole that appeared in their case before trial. Sometimes the defence cross-examination is so blistering there is nothing left for the defendant to add. Regardless of whether the Crown’s case has strengthened or dissolved, it is critical that defence counsel re-visit the rationale for the defendant’s decision whether to testify in light of the state of the case at the close of the Crown’s case. Are the evidentiary points that required evidence from the defendant before the start of the trial still in issue? Are there new issues that demand a response from the defendant? These questions can only be effectively discussed with the client in the midst of a trial if the proper foundation was laid with the client in the lead up to the trial.
If going into the trial the client understands the legal issues in the case and how her evidence advances or harms the defence arguments on those issues, explaining how the Crown’s case at trial altered that original assessment of risk and reward is doable. Trying to start from scratch and explain a change in circumstances to a client who did not really understand why she was or was not testifying in the fifteen minute recess between the end of the Crown’s case and the start of the defence is not.
Obtaining instructions from a client in a criminal case cannot be a single conversation. It is an on going dialogue that stretches through the life of the proceedings from the first meeting to the end of the trial. It requires the lawyer develop a clear understanding of the client’s objectives and priorities. It requires the lawyer develop as early as possible an understanding of the strengths and weaknesses of the Crown’s case and the defences available to the client. The lawyer needs to cultivate in his client an understanding of the risks attached both to resolution and to fighting a matter to the end of a trial. The client needs to be educated about how her story helps or runs counter to the legal arguments available to the defence. She needs to understand the mechanics of telling her story effectively in court and be given an opportunity to develop the practical skills of a good witness through mock cross-examinations. If that does not seem onerous enough, the lawyer and client need to continuously re-evaluate their approach to the case in light of the prosecution’s case.
Too many people find themselves enmeshed in the criminal justice system because the world treats them as passive actors in their own lives. Defence counsel should be the one person who our otherwise marginalized clients can count on to treat them with dignity and a recognition of their right to decide their own fate. Our job is to empower our clients with the knowledge and context they need to make these big decisions. Counsel may not agree with a particular client’s decisions about whether to plead guilty or run a trial or about whether to tell his story or remain silent, but her job is done where she has ensured that the client made her decisions with her eyes wide open.
Note: This article was originally published in the Ontario Bar Association Criminal Justice Section Newsletter. Footnotes from that article have been omitted.