Criminal Law

Duty to defend your client is paramount: Dale

By Peter Small, Contributor

Courtroom civility, though important, must never come at the expense of mounting a vigorous defence, says Toronto criminal lawyer and civil litigator Laurelly Dale.

“If you need to make the decision between civility and defending your client, the defence of your client will win because you need to make sure they have a fair trial,” says Dale, principal of Dale Law Professional Corporation.

The defence bar breathed a sigh of relief last summer when the Supreme Court of Canada (SCC) overturned a Law Society of Ontario Appeal Panel finding of professional misconduct against Toronto securities lawyer Joseph Groia for allegedly being uncivil during a trial, she tells

Former criminal lawyer, Justice Michael Moldaver, wrote the decision for the majority, finding that when there’s a conflict between civility and the best interests of your client, the duty to defend is paramount, according to the SCC judgment.

“Criminal defence lawyers are the last line of defence before someone's liberty is going to be taken away,” Dale says. “So, it's our duty to put up a zealous and unfettered fight without fear of reprisal from regulatory bodies because the prosecutor is offended by your tone in court.”

Some people were worried the SCC decision would result in increased rude courtroom behaviour by defence lawyers, but that has not been the case, she says.

“The signal that it sends to counsel is that we must continue doing our jobs. We can defend our client with such vigour that we have this ability to criticize how the prosecutor handles their case,” Dale says.

Such criticism is sometimes necessary because prosecutors wield enormous power as agents of the state, and must be held to account, she adds.

If a criminal lawyer suspects that the Crown is failing to disclose evidence, or is causing unnecessary delay, it’s their job as zealous advocates to point that out, Dale says.

“And it doesn't mean that we need to file an abuse of process application for everything that we suspect is wrong,” she says.

Every criminal defence lawyer has an issue with some prosecutor, Dale says.

“That’s just human nature," she says. "It’s humans that are running this profession. But, it’s our job to make sure that none of their personal biases are negatively impacting your client.”

Dale notes that the SCC found that Groia, in defending his client from securities charges, acted in good faith when he made allegations of prosecutorial misconduct over disclosure issues.

It all comes down to making sure your client receives a just trial, she says. “If you're missing disclosure, you're not going to get a fair trial.”

The court did not strike down law society rules governing the behaviour of lawyers, it merely disagreed with its application in this case, Dale says. “There’s a code of civility that we abide by in court anyway.”

Deference, in the sense of respectful regard for each other, is still important, she says.

“You have to remember that the livelihood, and the sustainability of a lawyer's career, depends on their reputation.”

If a lawyer is known for being unreasonable, and making baseless allegations, he or she will find it hard to get work, Dale says.

And the other tripwire against courtroom rudeness is the judge, who will vigorously intervene if counsel makes baseless accusations, she says.

“I would argue that civility in court reigns the majority of the time,” Dale says. For example, lawyers refer to each other as “my friend.”

“We only really bust out that fierce advocacy side when we're pitted against one another in an open sentencing, or any sort of contested hearing.”

The system depends on civility to make sure matters move efficiently, she says.

“The real fight and fierce advocacy comes out when we have these heated trials,” Dale says. “If you can't resolve your matter, then proceed to trial and throw your gloves down and battle with one another. That's what the adversarial system is for.”

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