The Role of the Defence Counsel in Canadian Society
Publication
The Empire Club of Canada Addresses (Toronto, Canada), 19 Nov 1987, p. 120-136
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Greenspan, Edward L., Speaker
Media Type
Text
Item Type
Speeches
Description
Three favourite anecdotes of the speaker. The concept of the right to counsel as one of the most significant manifestations of our regard for the dignity of the individual. The role of a criminal defence attorney in different societies. The emphasis of that role in a free society. The rising popularity of the victim and the new suggested role for the victim. How that is at odds with the tenets of democratic justice. A discussion of the concerns and values of a democratic society. The speaker's answer to the question "How do we represent a guilty man?" "Guilt" as a legal term. An example of problems caused if one makes a personal judgment about guilt or innocence. A defence counsel's job not to believe or disbelieve; not to make moral judgments. Defence counsel in the role of advocate. "Let justice be done."
Date of Original
19 Nov 1987
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English
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The speeches are free of charge but please note that the Empire Club of Canada retains copyright. Neither the speeches themselves nor any part of their content may be used for any purpose other than personal interest or research without the explicit permission of the Empire Club of Canada.
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Full Text
THE ROLE OF THE DEFENCE COUNSEL IN CANADIAN SOCIETY
Edward L. Greenspan, Q.C., Senior Partner, Greenspan, Rosenberg
November 19, 1987
Chairman: Ronald Goodall, President

Ronald Goodall

When I learned that our guest speaker had written his autobiography, which I certainly intend to read, I thought that it would be appropriate for me to look at our literature to gain some insight into the problems, experiences and rewards of lawyers.

There have always been laws and lawyers. In the 14th century, a sergeant of law accompanied Geoffrey Chaucer on that famous pilgrimage to Canterbury. He told the pilgrims a tale of love and romance with a religious twist.

Several centuries later, Sir John Falstaff during his attempt at wooing the merry wives of Windsor crossed Robert Shallow, Esquire, a justice of the peace in the county of Gloster. Sir John beat Justice Shallow's men and killed his deer.

In the last century, Charles Dickens' Mr. Samuel Pickwick (general chairman-member Pickwick Club) got into a legal tangle and found that there were three grades of legal clerks: "The articled clerk, who has paid a premium, and is an attorney in perspective; who runs a tailor's bill, receives invitations to parties... the salaried clerk who devotes the major part of his 30 shillings a week to his personal pleasure and adornment, repairs half-price to the Adelphi Theatre at least three times a week" and finally "the middle-aged copying clerk, with a large family, who is always shabby and often drunk."

Our guest speaker has told tales. He is the author or co-author of several books: Greenspan: The Case for the Defence, By Persons Unknown and Vengeance.

I do not know if Mr. Greenspan has any deer on his North Toronto estate. As for the grades of clerks, our guest is paid a premium, receives invitations to parties and does have a family, a wife Suzy and two daughters, Julianna and Samantha.

Edward Greenspan was born and raised in Niagara Falls, Ontario. He graduated from Osgoode Hall Law School in 1968 and was called to the bar in Ontario in 1970. In 1982 he was made Queen's Counsel.

He has lectured on criminal law at the University of Toronto Law School, Osgoode Hall Law School, York University and on the Bar Admission Course. He is involved with the University of Calgary Law School, the faculty of law at the University of Western Ontario and the University of Saskatchewan Law School.

Mr. Greenspan serves on numerous editorial boards, is a radio host and personality and has written numerous articles for publication in legal journals including "What Bugs Greenspan" and "Crime and Punishment by the Media."

Mr. Greenspan has been and continues to be active as a member or director of many professional and community associations. In particular, I am pleased to note that Mr. Greenspan is a member of The Empire Club.

Ladies and gentlemen, please welcome Edward Leonard Greenspan, Q.C., senior partner in the firm of Greenspan, Rosenberg, who will address us on "The Role of the Defence Counsel in Canadian Society."

Edward Greenspan

Thank you for the kind introduction. I can now die and hopefully go to heaven. I have spoken everywhere over the years but never at The Empire Club and The Empire Club is "Carnegie Hall." I have now made it in the big city. I even joined The Empire Club five years ago hoping you would notice me. I don't even mind that I am the 2,521 st speaker you have had in your 84-year history. Or that you waited so long to invite me. I am here and nobody can take this away from me.

I was going to take this opportunity to speak on the subject of free trade. I feel eminently qualified to speak on this subject because I don't know anything about it at all nor do I appreciate its ramifications and that seems to be a condition precedent to being an expert on the subject.

Then I decided to speak on the role of the defence counsel in Canadian society. But before I begin I want to suggest to you that in a trial lawyer's arsenal of weapons there is no more important weapon than a sense of humour. The humour of the law punctures the tensions of trial work, and keeps up our spirit and faith in the system. We have been blessed in this country and in the United States with some great, colourful and humorous judges and lawyers and I want to relate to you three of my favourite anecdotes. I have the actual transcripts all three cases.

The first occurred in Vancouver where the legendary Judge Mussalem, a provincial court judge sitting in criminal court, had reached the end of the road with a federal drug prosecutor's office. They kept loading his Friday court list when all the good judge wanted was a long weekend on his boat. The transcript reads as follows:

Mr. Kittle (for Calling number 35, Your Honour, Joseph the Crown): McLaughlin.
The Court: What do you want to do with your case, Mr. McLaughlin.
The Accused: I'll plead guilty.
The Court: Go up to Court 102, let the Sheriff know what you want to do and they'll attend to you there, sir.
Mr. Kittle: Your Honour, 102 is not sitting today. You are the only court sitting today.
The Court: Oh, hold it ... they don't sit today.
Mr. Kittle: Perhaps then ...
The Court: A curse on you, Kittle, and a curse on your house and the whole damned federal Crown for setting these cases down on Friday. I've told you about this before. Get a transcript with my profanity Kittle and give it to whoever is in charge there.
Mr. Kittle: Your Honour, this matter was set down by appearance not by ...
The Court: I know, Kittle. You don't send out the instructions. Just a minute. I'll deal with it right now. Give me the information and if you do that, which I suspect you won't, Kittle, tell them I had a scowl on my face.
Mr. Kittle: Very well, Your Honour.
The Court: All right, read the charge.
The Clerk: Joseph Arthur McLaughlin, you are charged that at the City of Vancouver, Province of British Columbia, on the 25th day of January,
A.D. 1979, did unlawfully possess a narcotic, to wit, cannabis (marijuana), contrary to the provisions of the Narcotic Control Act. Joseph Arthur McLaughlin, how do you plead to this charge, guilty or not guilty?
The Accused: Guilty.
The Court: Go ahead, Mr. Kittle, tell me the heinous circumstances surrounding this offence.
Mr. Kittle: At approximately 2:15 a.m., January 25, a search was being conducted of the accused's room. He was found lying on the bed awake and in between the mattresses was found one plastic baggie containing five small plastic baggies containing suspected marijuana. A conversation ensued: "Do you know what this is?" Answer, "Yes." "Whose is it?" Answer, "It's my weed." Question, "Is it Michelle's?" Answer, "No," and there was further conversation which I think is unnecessary in this respect.
The Court: Any record?
Mr. Kittle: None, Your Honour.
The Court: How old are you, McLaughlin? Accused: Nineteen.
The Court: How long have you lived in Vancouver?
The Accused: Off and on for the last two years.
The Court: Are you with your parents or on your own? The Accused: On my own.
The Court: What do you do for a living?
The Accused: I'm an insulator on an apprenticeship.
The Court: You won't know why I'm doing this, McLaughlin, because I think you're a useless idle bum who pretends to be a citizen of Canada and flagrantly breaks the law of Canada doing little or no good to yourself or your country. I have not much use for you or your type, a bunch of long-haired freaks, and you won't understand why I'm giving you an absolute discharge, but I'm doing it because I'm vexed with the Crown. An absolute discharge. Get out. No one will ever know how lucky you are. You certainly won't, you haven't got the brains. Tell them that too would you, Kittle, and tell them that's the Friday routine from hereon in.
Mr. Kittle: Yes, Your Honour.

The late Walter Martin, Chief Judge of the County Court for the Judicial District of York was truly a great character. When he was a child, the first number he learned was 10, then 11, then 12, then 13 up to 35. He was a particularly intelligent man but in the area of mathematics he only knew numbers 10 through 35. It never became a real handicap in his professional life, but it caused havoc with the lives of any poor accused who had the grave misfortune to appear in front of him for sentencing. He was so infamous that in the jails if someone said they were "Martinized," it needed no further explanation and immediately caused all the other convicts to feel better off about their sentences.

One such unfortunate soul was one Pilon, a visiting Montreal robber. Pilon was ahead of his time. He demanded a bilingual trial in the late '60s. Judge Martin said no, but accommodated him with the best French interpreter money could buy. After Judge Martin convicted him he appeared to listen carefully to submissions on sentencing and then sentenced Pilon as follows: "You wanted a trial in French. Well, Monsieur Pilon, here comes the French. C'est la vie! Life imprisonment. Take him away."

But the funniest and most inspired sentence ever imposed comes out of New Mexico, 1887. This is the actual sentence of the court. This is the judgment of Mr. Justice McKay:

Jose Manuel Xaviar Gonzales ... in a few short weeks it will be Spring. The snows of Winter will flee away. The ice will vanish. The air will become soft and balmy. In short, Jose Manuel Miguel Xaviar Gonzales, the annual miracle of the years will awaken and come to pass. But you, Jose Manuel Miguel Xaviar Gonzales, won't be there.

The rivulet will run its scaring course to the sea. The timid desert flowers will put forth their tender shoots. The glorious valleys of this domain will blossom as the rose. Still ... you won't be here to see it.

From every treetop some wild woods songster will carol his mating song. Butterflies will sport in the sunshine. The busy bee will hum happily as it pursues its accustomed vocation. The gentle breeze will tease the tassels of the wild grasses ... and all nature ... Jose Miguel Xaviar Gonzales ... will be glad ... but you.

You won't be here to enjoy it because I now command the sheriff to lead you out to some remote spot ... swing you by the neck from a knotting bough of some sturdy oak ... and let you hang until you are dead.

And then, Jose Manuel Miguel Xaviar Gonzales ... I further command the sheriff to retire quickly from your dangling corpse ... that vultures may descend from the heavens upon your filthy body until nothing shall remain but the bare ... bleached bones of a cold-blooded, bloodthirsty, throat-cutting, sheepherding, murdering son of a bitch.

Now, I should get on to my topic.

I am always asked how can you defend "those people." How can you act for a guilty man? And not just non-lawyers ask but, sadly, law students, indeed other lawyers, ask.

Even my own mother is ambivalent about what I do for a living. When she reads about some "horrible" person who has retained me, she can't understand why I would take the case. I've often said Al Capone's mother was more tolerant of her son's profession than my mother is of mine.

Then I read an article on the great American criminal trial lawyer and owner of the Washington Red Skins football team Edward Bennett Williams in which William Buckley said:

If Edward Bennett Williams had defended Adolph Eichmann, he would no doubt have introduced him by saying: `Adolph Eichmann's steadfast devotions to his own ideas on controversial ethnic issues earned him a horde of admirers and a horde of detractors." Whereupon he would proceed ... to move in on the deficiencies in the legal case against Eichmann.

Then I got a letter that really got me thinking about my topic today. It was during a trial that received some attention in the media. It involved the distribution of some soft-core pornographic video home rentals. Judge Borins was the presiding judge. My client was a married man, two kids, no criminal record whatsoever-he had been a successful musician in Toronto, best known for his song about Eddie Shack, a popular hockey player in Toronto, back in the days when we had a real hockey team in Toronto. The song was "Clear the Track, Here Comes Shack." He became a distributor of home rental movies, most were Hollywood-made movies that could be seen in any theatre, some were "soft-core" and I emphasize soft-core pornographic movies. In the trial, Alderwoman June Rowlands was a Crown witness on the issue of community standards. This is the letter.

Dear Mr. Greenspan:

As a high-profile member of the judiciary, you were always respected by me, and I am sure by others.

I was absolutely shocked to read that you are defending the lowest form of amoeba life on this earth. The pathological types who distribute pornography of the worst kind should be fined up to their proverbial eyeballs. Here you are, supposedly a respected lawyer, a member of the Queen's Counsel, fighting against June Rowlands. She knows what she is talking about. She is a mother of several children [I'm the father of two wonderful girls but I guess that doesn't matter] and she has researched the facts about pornography, and the spin-off sociological implications of that smut trade, on wife and child abuse, etc.

Your mother would be ashamed of you, as I am. [Little did she know how right she was about this.] With your acumen, you should be fighting with concerned citizens to stop the flow of the most degrading and sick literature and videotapes coming in from the States.

I had the highest regard for you prior to this incident, but now, I feel that you do yourself a great injustice by aligning yourself with these people. You do not need the money that badly! [Well, she obviously does not know my wife.] Your profession is an honourable one. You have a great opportunity to help the law-abiding citizens. Please-leave the creeps and bums to face their own just rewards. They have contributed nothing to society. Thank God for sane, sensible, and honourable men, like Judge Borins. Please listen to him.

Yours truly,

I have a simple answer to all those concerns and it is involved in a consideration of the right to counsel. It is the only context in which these questions can be considered.

The concept of a right to counsel is one of the most significant manifestations of our regard for the dignity of the individual. No person is required to stand alone against the awesome power of the government. Rather, every criminal defendant is guaranteed an advocate-a "champion" against a "hostile world," the "single voice on which he must rely with confidence that his interests will be protected to the fullest extent consistent with the rules of procedure and the standards of professional conduct." Our Charter of Rights and Freedoms in this great land says an accused person has the right to retain and instruct counsel. It does not say every accused except gamblers, thieves and robbers. It does not say every accused except communists, members of the FLQ, members of organized crime and narcotics offenders. The right to counsel is an absolute right which extends to every person charged with a crime, no matter how socially or politically obnoxious he may be, no matter how unorthodox his thinking or his conduct or how unpopular his cause or, yes, no matter how strongly the finger of guilt may point at him. And I say that the right to counsel would be an empty sham if the members of the bar did not have a corresponding duty to defend all those who seek representation within only two limits. The limits of honesty and integrity.

For me, a criminal lawyer who refuses to act for an alleged "organized" criminal, a corporate accused, a businessman (and there are such lawyers), a Nazi, or for someone accused of crimes against women, children or the environment is like a medical doctor who refuses as a matter of principle to treat someone suffering from syphilis or AIDS.

Freedom of religion, freedom of speech, the right to bail, the right to trial by jury all have been forged and reforged through the years in the cases of men and women already condemned by society. As H.L. Mencken once put it: "The trouble about fighting for human freedom is that you have to spend much of your life defending sons of bitches, for oppressive laws are always aimed at them originally, and oppression must be stopped in the beginning if it is to be stopped at all." It goes without saying that one's obligation to defend a client does not import any obligation to defend his client's crime. You don't defend an accused murderer by arguing that your client's victim deserved to die. In short, it is the client and not the crime which a criminal lawyer must defend.

The role of a criminal defence attorney in a totalitarian state is different. A law professor at the University of Havana put it best: "The first job of a revolutionary lawyer is not to argue that his client is innocent, but rather to determine if his client is guilty and, if so, to seek the sanction which will best rehabilitate him."

A Bulgarian attorney began his defence in a treason trial by noting that "in a Socialist state there is no division of duty between the judge, prosecutor, and defence counsel ... . The defence must assist the prosecution to find the objective truth in a case." In that case, the defence attorney ridiculed his client's defence, and the client was convicted and executed. Some time later the verdict was found to be erroneous.

In repressive countries, there is no independent defence bar. A sure sign that repression is on the way is when the government goes after the defence lawyers. Hitler, Stalin, the Greek colonels, and the Chinese Cultural Revolutionaries placed defence lawyers-especially vigorous and independent ones-high on their hit lists.

The emphasis in a free society is, of course, sharply different. Under our adversary system-in a free society-the interests of the state are not absolute, or even paramount. The dignity of the individual is respected to the point that even when the citizen is known by the state to have committed a heinous offence, the individual is nevertheless accorded such rights as counsel, trial by jury, due process, and the privilege against self-incrimination. I have always felt that a criminal lawyer can never excuse himself for accepting a defendant's confidence and then betraying it by a halfhearted defence.

Project yourself for a moment into the position of a defendant. If you should one day find yourself accused of crime, you would expect your lawyer to raise every defence authorized by law of the land. Even if you were guilty, you would expect your lawyer to make sure that the government did not secure your conviction by unlawful means. You would be justifiably outraged if your lawyer sat silent while the prosecution deprived you of your liberty on the basis of a defective indictment, perjured testimony or a coerced confession. In the movie, And Justice for All, Al Pacino was cheered by the audience both in the movie and in the movie theatre when he announced to the jury that his client was guilty. Surely that is not the kind of lawyer you want. You would scarcely want him to decide that these things were "technicalities" and that society would be better off if you were in prison. The most unpopular defendant has the right to expect the same kind of defence you would want yourself.

And the role of the defence counsel, the obligation the community places on him, is a societal role-to defend the constitutional guarantees of presumption of innocence and the requirement that in our democracy no one can lose freedom unless and until the state can prove guilt beyond a reasonable doubt. Our community can retain justice and freedom only as long as it gives standing to one person to take, within the limits of the law, the defendant's side in court and to remind society when the scales of justice are tilting in the wrong direction. For instance, we live in the Dawning of the Age of the Victim. You may think the defence counsel will naturally oppose the interests of the victim. Not true. What we must do is remind you all the time of the potential danger that fashionable and trendy ideas might have on the law. Will it upset the delicate balance the justice system desperately tries to maintain. John Robinette, the dean of Canadian lawyers, says, "It's so easy for the victim to exaggerate ... I'm not happy about this new rule for the victim. It worries me."

I would add this. Whatever the reason for the rising .popularity of the victim, the new suggested role for the victim is at odds with the tenets of democratic justice. The function of criminal law in theory and in fact is not the resolution of disputes between individuals. In the law of torts it is the individual suffering the delict who is conceived to be wronged. In criminal law, though the act may be and often is a recognizable tort, the important difference is the notion that it is the state or the collective community that has been injured. The substantive criminal law is not concerned with violations of the rights of individuals, but with violations of the collective interest in the security of the state, the safety of its citizens, or the shared morality of the community. A civil trial may be a fight between neighbours, each asserting rights. In a criminal trial, the state, on behalf of the community, accuses an individual of violating some collective value in the society.

A democratic society is not, however, solely concerned with dealing with crime as an attack on the law-abiding majority. We also value freedom and dignity of the individual and this has implications for how we treat the accused throughout the criminal process. It is the need to recognize these values which creates what may appear to be an imbalance, or as Ronald Dworkin thinks of it, an asymmetry. "The geometry of a criminal prosecution, which does not set opposing rights in a case against one another, differs from the standard civil case in which the rights thesis holds symmetrically." It is this peculiar configuration of the sides in criminal cases, the prosecution representing the collective values of our society set against the defence representing not only the individual defendant but the individualist values of our society, which makes it critical that we never blur the distinction between civil and criminal law.

Both sets of values are of great importance and are seemingly irreconcilable in the criminal trial. The ever-increasing popularity of the victim and the new role for the victim obscures the role of the state, attempts to legitimate personal revenge as a justification for public punishment, and tends to overshadow the primary focus of the criminal trial-the legalized attempt by the state to deprive the individual of his liberty. There are other forums for redress of the violence done to victims. The legitimacy of the violence we do to an individual accused of a crime can only be determined in a criminal trial.

The most important, the most frequent question I am asked, the question that comes up at my cocktail parties, is: How do we represent a guilty man? There is a simple, quick and complete answer. Our whole system of criminal justice is built on the basic premise that every man is presumed innocent until he is proven guilty beyond a reasonable doubt. His guilt must be shown by evidence produced by a prosecutor in a courtroom-not in a newspaper or broadcast.

"Guilty" in this frame of reference is not a moral term. It is a legal term. No one is legally guilty until a judgment of guilt has been made by the court. The lawyer is neither expected nor qualified to make a moral judgment on the person seeking his help. Moral guilt or innocence is no more within the province of the lawyer than within the jurisdiction of the court. The accused is entitled to have a trial and to have his legal guilt proven beyond a reasonable doubt by evidence tested in the crucible of cross-examination. He is not entitled to produce perjured evidence in court or to testify falsely. But he is entitled to sit silent and force the proof of guilt. Moral judgments by the lawyer are frequently wrong and he learns not to make them. No lawyer can assume the character of a judge.

Some time ago I was called to the local jail in Toronto to see a man accused of first-degree murder. The man I saw in the cells lived and worked about 100 miles out of Toronto. He was charged with killing a lawyer (that's still a crime in Ontario). The exact charge was that he and the lawyer's wife did him in. She had left her lawyer husband and taken up with my client. Shortly before the lawyer's death, she returned to him and re-established her relationship with him. My client moved back to Orillia where he became a life insurance agent. He told me on that particular day, the day of the murder, he had never left his home town about an hour-and-a-half drive north of Toronto and he had an alibi. I left the jail elated and determined. At the bail hearing, I cross-examined the chief investigating officer vigorously and after building up to the great finish I said to the officer, "And I suggest to you, Sir, that you have no evidence whatsoever that my client was in Toronto on the day of the murder and, in fact, I suggest that all the evidence shows he was in his home town when the victim was murdered." To my horror, the officer said, "That's not true, Mr. Greenspan, we do have evidence that your client bought gasoline in Toronto the night of the murder, at around the time of the murder."

Despite the horror I felt, outwardly I was a rock. I said, "You do not have such evidence:" He said, "We do." I said, "You do not." He said, "We do," and I said, again very forcefully, "You do mot." At this point, the judge stepped in to help the beaten officer and suggested I move to another area of crossexamination. My client got bail.

Naturally, I called my client in to discuss what the officer said in the witness box. Before anyone says he's about to breach privilege, I can tell you that most of what I will tell you came out in court and my client has authorized me to talk about those things that didn't, because of the lesson it teaches. I said to my client, "The officer says you were in Toronto buying gas the Monday night, the very night of the murder. Why did he say that?" And my client said that "the mistake was obvious." He had been in Toronto the night before the murder (the Sunday night) and had filled his car before his drive back to Orillia. It was so late Sunday that what must have happened was the date must have been changed on the credit card machine. I was thrilled. And after consultation with my client, we retained a private investigator to tie down the facts, get the copy of the credit card, etc.

After several weeks, my investigator brought me the necessary documents that proved beyond any doubt whatsoever that my client had been in Toronto the night the victim died and that he had purchased gas at around the time of the murder. No doubt about it. Our private investigator proved this fact better than the police could ever prove it!

So I brought my client back again. My secretary, "Della Street," was there. Two articling students were there as an indication of the solemnity of the situation. And I said to my client, "You've spent $1,500 of your own money proving beyond a shadow of a doubt that you were in fact in Toronto buying gas at about the time of the murder. For another $1,500 I think our private investigator can prove beyond a reasonable doubt that you personally killed that 'Bruce Lorenz. " It was quite obvious I was furious with my client for wasting my time in the preparation of his defence, in not telling me the truth. My client was deeply upset. He was silent. Then he told us the following story. He started by saying he was afraid to tell me the truth because he thought I wouldn't act for him if I knew he was in Toronto the night of the murder. This is a problem lawyers have-getting the client to tell the truth and not saying what the client thinks the lawyer wants to hear.

He told me he met a young Toronto woman at a dance at the Orillia Fairgrounds several weeks before he was charged and he had made arrangements to take her out in Toronto on what turned out to be the very night of the murder. He drove to Toronto, called her and she apologized, said she forgot their arrangements and was having dinner with her mother. She told him to call again. He hung up the phone, went next door to a gas station, filled up his car and returned to Orillia. I said, "What's her name?" He said, "I don't know." I said, "What's her phone number?" He said, "I don't remember." But he remembered she was related to someone in his home town and he would try to call me with her name and number that week if he could remember. My secretary "Della Street" was laughing. The two students were snickering.

If you had made a personal judgment at that point as my secretary and students did, you would have been dead wrong. The story sounded far-fetched, implausible, but he had the name of the lady in Orillia who introduced him to the woman at the dance. We called her. My client did not know her well. She owned a business in Orillia and told us her cousin had indeed come to visit for the weekend and she had introduced her cousin to our client at a dance. She gave us her cousin's name and phone number. We called. The lady was reluctant to get involved. She had a boyfriend and had broken off the relationship. She went to Orillia for the weekend to get away and forget her problems. She went to the dance at the fairgrounds where she met our client and danced with him. He seemed nice. She agreed to go out with him in Toronto later. Coincidentally, it turned out to be the night the lawyer died. She came back to Toronto, made up with her boyfriend, and by the time our client called her saying he was in Toronto, ready to take her out on a date, she had completely forgotten about my client or that she had made a date. She did not want to get mixed up in any murder case but yes she had met my client and yes they made the arrangements as he said. When he called she was having dinner with her parents and had forgotten about the date and because she was a nice person she lied when she said, "Do call again." More importantly, she remembered when he called. She remembered the time of the call because she had just returned from a special course she was attending and in remembering the exact time she confirmed my client's story precisely. She proved he could not

have been the murderer and she was a reluctant witness. By the time of the trial, her boyfriend was now her fiance and he didn't want her involved. So she did not come forward willingly to help my client. And her evidence went a long way to achieving an acquittal. What if my client could not have remembered how he met her and we couldn't find her or produce her? Would I have been entitled to advance his story halfheartedly because it sounded implausible, because I had made a personal judgment about his guilt or innocence?

If I had, I would have been wrong. A man called Evans was charged with murder in England. He confessed to killing his wife and baby. Yet at trial he said he was not guilty and he claimed Christie, his landlord, had done it. Christie testified and said Evans was lying. The jury preferred Christie over Evans and Evans was convicted and hanged. Some time later, Christie sold his house at the now famous 10 Rillington Place in London and the new owner wanted to do some renovations and discovered some dead bodies behind a wall. The police were called and by the time they had dug up 10 Rillington Place, Christie was one of England's great mass murderers. He was later hanged too. Evans had been right. The Queen pardoned Evans making his heirs and successors a happy lot but it did nothing for poor old Evans. At an inquiry held into whether or not the infallible English judicial system could ever make a mistake, Evans' lawyer admitted he always believed Evans to be guilty. The horrible inference is that had he believed Evans to be innocent, he would have fought just that much harder, appeared that much more sincere, crossexamined just that much better. He might have been just that much better in the important decision-making process that inevitably goes on in every criminal case. A defence counsel's job is not to believe or to disbelieve. A defence counsel's job is i not to make moral judgments. If you must make them, don't practise criminal law. Indeed, the Professional Rules of Conduct clearly say a lawyer should keep his private opinions as to credibility or merits to himself.

When a defence lawyer takes on a brief he must do so as in the words of a famous English lawyer:

An advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and, amongst them, to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others. Separating the duty of a patriot from that of an advocate, he must go on reckless of the consequences, though it should be his unhappy fate to involve his country in confusion.

Let justice be done-that is, for my client let justice be done, though the heavens fall. That is the kind of advocacy that I would want as a client and I feel bound to provide as a Canadian advocate.

The appreciation of the audience was expressed by The Hon. Justice Joseph Potts, a Past President of the Club.

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The Role of the Defence Counsel in Canadian Society


Three favourite anecdotes of the speaker. The concept of the right to counsel as one of the most significant manifestations of our regard for the dignity of the individual. The role of a criminal defence attorney in different societies. The emphasis of that role in a free society. The rising popularity of the victim and the new suggested role for the victim. How that is at odds with the tenets of democratic justice. A discussion of the concerns and values of a democratic society. The speaker's answer to the question "How do we represent a guilty man?" "Guilt" as a legal term. An example of problems caused if one makes a personal judgment about guilt or innocence. A defence counsel's job not to believe or disbelieve; not to make moral judgments. Defence counsel in the role of advocate. "Let justice be done."