Defence lawyer presents case, jury decides guilt

Lawyers who practice criminal defence are often asked how they can defend criminals in good conscience.

While this is certainly a valid question, it is often predicated on the assumption that when criminal defence lawyers argue for a client’s acquittal, or not guilty verdict, they are presenting their personal belief that the accused is innocent.

This is a misconception that requires an explanation of legal principles.

In Canada, our criminal justice system is designed to protect the public from arbitrary imprisonment and wrongful convictions.

It is a major difference from many other systems around the world, where governments and dictators can throw people in jail without adequate proof or a fair trial.

Under our Charter of Rights and Freedoms, every person has the right to be presumed innocent until proven guilty according to law in a fair and public hearing. His or her guilt must be proven beyond a reasonable doubt.

The criminal law requirement of proof beyond a reasonable doubt is a high standard, akin to certainty and distinct from the balance of probabilities or “more likely than not” standard of proof used in civil trials.

Reasonable doubt has been defined as doubt that causes an honest juror, after considering all of the circumstances, to be unable to say, “I am morally certain of his guilt.”

Therefore, when an accused is found not guilty, it simply means that the judge or jury was not certain of his guilt. The right to the presumption of innocence therefore remains.

The onus of proving the accused’s guilt beyond a reasonable doubt rests with the crown. In other words, an accused is not required to prove his or her innocence. The crown must prove the accused’s guilt, and until that guilt is proven, he is presumed innocent. The accused is entitled to all of the benefits of the rule of law, which includes the right to a defence and a fair trial.

The reasonable doubt standard is meant to balance the dual interests of holding guilty parties accountable and the prevention of convicting those who are innocent.

The high standard of proof placed on the crown means we are balanced toward the latter interest, and rightly so. Even under the current balance, that unfortunate situation sometimes occurs. David Milgaard is one example.

Answering the original question and understanding the criminal defence lawyer’s role becomes easier with these principles as a backdrop.

It is not the lawyer’s role to decide the guilt of the accused: that is left to the judge or jury. The lawyer is the accused’s agent, and the role is to advocate zealously on the accused’s behalf to the fullest extent allowed under the law, no matter how heinous the crime or unsavoury the offender, until his guilt is proven to the required standard. The right to this defence is available to everyone in Canada.

Lawyers’ arguments are not based on personal opinion, but rather a belief in the underlying principles of our criminal justice system and an awareness of the danger that would result if we decided to infringe on those rights to satisfy the media or the public, who sometimes demand an immediate judgment.

As a society, we afford rights to accused persons, no matter how unsavoury the offender or offences, not to protect criminals, but to protect society as a whole. People who suddenly find themselves or a family member thrown into the criminal justice system often quickly realize the importance of those rights.

 Acknowledgment to Paul Wood, student at law in McDougall Gauley’s Regina office, for research and drafting of this article.

This article is presented for informational purposes only and does not constitute legal advice. The views expressed are solely those of the author and should not be attributed to McDougall Gauley LLP. Contact:

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