FULL ANSWER AND DEFENCE, MISTRIAL, THE CLEAREST OF CASES AND THE SOLICITOR-CLIENT RELATIONSHIP
FULL ANSWER AND DEFENCE, MISTRIAL, THE CLEAREST OF CASES AND THE SOLICITOR-CLIENT RELATIONSHIP
It is important for defence counsel and his or her client to have a good working relationship. A good relationship is based on both respect and trust. A firm belief in the reliability, truth, ability and strength of one’s choice of counsel is critical to the solicitor-client relationship. This is so because the client must have confidence in the advice and instructions offered by his or her lawyer. The client must also feel comfortable that he or she can communicate effectively with defence counsel.
full answer and defence
Effective communication is important for the purpose of preparing for trial and ultimately making full answer and defence.
Making full answer and defence is not simply a matter of reviewing disclosure, cross examining witnesses and presenting arguments, it is also a product of a functional solicitor-client relationship where the accused is a reasonable and active participant in his or her own defence. By way of example, a lawyer cannot necessarily fully, completely and competently present the client’s case if the client has not effectively communicated with his or her lawyer. By the same token, the lawyer may be constrained in presenting a full defence if the client neglects to report important details that might assist the case.
To be sure, there may be good reason to delay conversations about the case until disclosure has been received, but once disclosure has been provided, the lawyer should seek instructions from his or her client.
RETAINER AGREEMENT
As a Calgary criminal lawyer, I often lose potential clients because my retainer agreement is quite demanding. Over years of practice, I have learned that a blunt, detailed and serious retainer agreement is important; for it protects both parties. Representing a client is not only about what happens in court, it is a business relationship.
Due to my retainer agreement, clients not only have a very good idea what they are paying for, they understand the expectations that I have of them.
A good retainer agreement not only addresses fees and services (important to the business relationship), it details expectations important for the solicitor-client relationship. For instance, my retainer agreement includes clear examples of grounds for getting off record. If the client misleads, misrepresents or asks me to do something illegal or unethical, there is good chance I will discontinue representation.
In my opinion, it is wise to outline fee structure, services and expectations before the client retains the lawyer. I understand that in criminal law there may be occasions where this is not reasonably practicable, but this should always be the goal.
PEOPLE ARE PEOPLE
Sometimes a circular reasoning makes the point.
As an experienced criminal law practitioner, I am acutely aware that accused persons looking at serious jail time may become desperate. Desperation can cause people to behave erratically. People are people.
I also know that lawyers are not immune from making mistakes. Despite our long years in school and for many of us, extremely long years practicing in a challenging profession, we are still just human beings, subject to human frailty. Again, people are people.
Understanding my own frailty, I am constantly evaluating my performance on a case-by-case basis. To be sure, in my long legal career I have made judgment errors, faulty legal arguments and other mistakes. As a result of hard work, instincts, a bit of talent and some luck, I am fortunate that my mistakes have been few and far from egregious. As the saying goes, “but for the grace of God go I”.
THE MISTRIAL APPLICATION
The Calgary Herald recently reported about a homicide case where a convicted accused was seeking a mistrial in a homicide case. It should not surprise anybody that a person in this situation might be desperate.
The purpose of this blog is not to suggest that the accused is acting desperately or dishonestly or that the defence lawyer made a mistake; rather, I will use this case as a real life example to discuss the concept of mistrial and the clearest of cases standard.
https://calgaryherald.com/news/crime/convicted-child-killer-never-told-perjure-himself-lawyer-says
A mistrial is essentially an application to have a trial declared invalid because of an error in the proceedings capable of causing a miscarriage of justice. Mistrial is a legal remedy of “last resort” and as such, can only be granted in the “clearest of cases”. To meet the clearest of cases test it must be plainly obvious that the integrity of the administration of justice has been brought into disrepute.
In the opinion of this criminal defence lawyer, the clearest of cases test is too high a standard. I say this because the standard often permits cases to continue where one party has behaved atrociously. For example, in R. v. O’Conner, [1995] 4 S.C.R. 411 Justices Cory and Iacubucci described the Prosecution’s conduct as “high handed” and “reprehensible”, but still not drastic enough to meet the clearest of cases test. This begs the question, what’s worse than “reprehensible”?
In the case reported by the Herald, the basis for the mistrial was that the accused’s full defence had apparently not been presented at his trial; meaning, he was not afforded the opportunity to make full answer and defence. The accused testified that he was “gaming” with another person when he heard a scream. Essentially, it appears his claim was something along the lines of, “I was gaming with this person when the bad thing happened. I didn’t do it. The person I was gaming with could confirm to this”. Of course, both the Crown and Defence would have been very interested in hearing from the person who the accused was allegedly with. I surmise that this witness was not called to testify. The reason the witness wasn’t called was because the lawyer didn’t know the witnesses existence until the last moment.
THE IMPORTANCE OF SHARING DETAILS WITH YOUR DEFENCE LAWYER
It is important that defence counsel has all information prior to being tasked with the responsibility of presenting the defence. This means that the defence lawyer has received and reviewed all disclosure and at a minimum, obtained a synopsis of the event(s) from the accused.
As reported by the Calgary Herald, this is precisely what defence counsel did in this case. He had the accused write a synopsis outlining his version of events. According to the Herald report, nowhere in that synopsis did the accused mention that he was gaming with anybody.
Suffice it to say, if true, this is a vital piece of missing information.
It is important to remember, defence counsel wasn’t present at the time of the incident. The only way defence counsel can understand what transpired is by reviewing disclosure and learning details from the client. If the client leaves out information, full answer and defence may be compromised. This is why I am of the view that the solicitor-client relationship is built upon reasonable communication between the lawyer and client.
I understand from reading the Calgary Herald article that the court was presented with an outline of events prepared by the accused prior to trial and that no mention was made of the accused being present with a third-party. To reiterate, that is significant missing information.
Notwithstanding that over the years I have developed a lot of respect for the lawyer, it is otherwise not my place to make comment about the accusations levelled by the accused or the response of the lawyer in this case. The matter is before the court.
CONCLUSION
This news report served the purpose of permitting me to speak about the importance of the solicitor-client relationship, while at the same time, providing a forum to speak about the basics of mistrial and the clearest of cases test.
My advice to anybody searching for a criminal defence lawyer is to remember that the lawyer may only be as good as the information provided.
Mistrials are difficult applications that are not easily or routinely granted. In Canada, the objective is a single trial. Since a single trial may be the only trial an accused will receive, it is important to make the best of it; for there may not be a second chance.
David Chow
Calgary Criminal Defence Lawyer