Defending the Guilty

AuthorDavid Layton; Michel Proulx
Almost every defence lawyer h as been asked, whether by family, friends,
or strangers, “How can you defend a guilty person?” The typical mem-
ber of the public probably has no problem with counsel representing
a culpable accused on a guilty plea. What may raise her ire is coun-
sel who helps the guilty client tr y to avoid conviction. In response to
this challenge, the lawyer can often def‌lect the inquir y by posing other
questions in reply, such as, “How can you say that a person is guilty be-
fore the verdict?” “But guilty of what?” or “How do you know the per-
son is guilty?” But the persistent interlocutor, not satisf‌ied with these
partial answers, may push further and say, “What I mean is, how can
you defend an accused person who you know is guilty?” It is this issue
— how can counsel ethically f‌ight against the conviction of a client he
knows to be guilty — that is the focus of this chapter.
Defending an accused who has confessed guilt to counsel or whom
counsel otherwise knows to be guilty has been described as “the
supreme test problem in the ethics of advocacy.”1 It encapsulates an
existential question that goes to the very core of a defence lawyer’s
mission. Academics who study the adversarial, rights-based nature of
our criminal justice system have long grappled with issues surrounding
1 Hugh Macmill an, “The Ethics of Advocacy” in Jame s Ames, Jurisprude nce in Ac-
tion: A Pleader’s Anthology (New York: Baker, Voorhis, 1953) at 307.
the defence of the guilty client, and, if anything, the debate has grown
more intense of late. As we will see, controversy prevails among many
commentators regarding how best to handle the diff‌icult problems re-
lated to this issue. Of course, it is practising lawyers and their clients
who are most immediately affected by the issue, which engages diverse
ethical duties — to the client, the administration of justice, and the
profession — and implicates counsel’s own conscience and sense of
morality. On a broader scale still, this issue foments public debate and,
sometimes, misunderstanding as to the fundamental rights of the ac-
cused and the aims of the criminal justice system. Some members of
the public will always be galled by defence counsel’s zealous and ag-
gressive representation of a client who is “obviously” guilty.
Most Canadian rules of professional conduct contain identical or very
similar standards addressing t he role of lawyer as advocate.2 These
standards are important in ascertaining the proper approach to the
defence of an accused who is known to be guilty. They seek to promote
the need for zealous representation of the client but without counten-
ancing the improper subversion of the truth. The rules collected in
most of the codes, under the heading “The Lawyer as Advocate,” begin
with the following general provision: “[W]hen acting as an advocate, a
lawyer must represent the client resolutely and honourably within the
limits of the law, while treating the tribunal with candour, fairness,
courtesy, and respect.”3 The commentaries to this provision continue
the theme:
[1] Role in adversarial proceedings: In adversar ial proceedings, the
lawyer ha s a duty to the client to rai se fearlessly every issue, adva nce
every argument a nd ask every question, however distast eful, that the
lawyer thi nks will help t he client’s case and to endeavour to obtain
for the client the benef‌it of every remedy and defence authorized by
law. The lawyer must discharge this duty by fair a nd honourable
means, without illegality and in a man ner that is consistent with the
lawyer’s duty to tre at the tribunal w ith candour, fairness, courtesy
2 Alta, Sask r 4.01; BC, Man, Ont, NS, N L r 5.1; NB ch 8; CBA Code ch IX.
3 Alta, Sask r 4.01(1); BC, Man, Ont, NS, NL r 5.1-1. Very similar are NB ch 8 a nd
CBA Code ch IX.
Defending the Gui lty 17
and respect and in a way that promotes the part ies’ rights to a fair
hearing in wh ich justice can be done . . . .4
[3] The lawyer’s function as advocate is openly a nd necessarily p ar-
tisan. Accordi ngly, the lawyer is not obliged (except as required by
law or under these r ules and subject to the duties of a prosecutor set
out below) to assist an adversar y or advance matters har mful to the
client’s case.5
[5] A lawyer should refrain from expre ssing the lawyer’s personal
opinions on the merits of a client’s case to the court or tr ibunal.6
These commentaries are useful in ascertaining the ethical duties
and limits imposed on counsel who represents a client known to be
guilty. But, in addition, most Canadian codes contain two further com-
mentaries that offer still greater specif‌icity w ith respect to the role of
criminal defence counsel:
[9] Duty as defence counsel: When defending an accused person, a
lawyer’s duty is to protect t he client as far as pos sible from being
convicted except by a court of competent jur isdiction and upon legal
evidence suff‌icient to suppor t a conviction for the offence with which
the client is charged. Accordingly, and notwithsta nding the lawyer ’s
private opinion on credibil ity or the merits, a law yer may properly
rely on any evidence or defences including so-called technicalities,
not known to be fals e or fraudulent.7
[10] Admissions made by t he accused to a lawyer m ay impose strict
limitations on t he conduct of the defence, and the accused should be
made aware of this. For example, if the accused clearly admits to the
lawyer the fact ual and mental elements necessary to constitute the of-
fence, the lawyer, if convinced that the admissions are true and voluntary,
4 Alta, Sask r 4.01(1) (commentary); BC, Man, Ont, NS, N L r 5.1-1, commentary 1.
NB ch 8, commenta ry 14(b) & (c) and CBA Code ch IX, commentar y 1 use very
similar language.
5 Alta, Sask r 4.01(1) (commentary); BC, Man, Ont, NS, NL r 5.1-1, commentary 3.
Similar to o is the wording used in NB ch 8, com mentary 3(a) and CBA Code ch
IX, commentar y 17.
6 Sask r 4.01(1) (commentary); BC, Ont, NS, NL r 5.1-1, commentary 5. Man
r 4.01(1) (commentary) use s the same wording but adds the follow ing sentence:
“A lawyer’s role is to present t he evidence on behalf of a client fa irly without
assert ion of any personal knowledge of the fact s at issue.” Similar wording is
found in Alta r 4.01(1) (commentary) and CBA Code ch X VIII, commentary 3.
7 Alta, Sask r 4.01 (commentary); BC, Man, O nt, NS, NL r 5.1-1, commentary 9.
NB ch 8, commenta ry 14(b) & (c) and CBA Code ch IX, commentar y 10 use
almost identical wordi ng.

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