Flight of the Accused and the attack on solicitor-client privilege
Flight of the Accused and the attack on solicitor-client privilege
I watched the local news with some concern about a situation where a wealthy Calgary businessman may have fled Canada while on bail. I say "may" because I can never be sure that I have all of the details from reading a news article.
I was reminded of a similar situation I was involved with as trial counsel last year when a client fled the jurisdiction for Pakistan. In that case, a Calgary judge actually said to me (words to the effect): "isn't it your job to get your client here". Not surprisingly, I was quite perturbed by the comment, for being a defence lawyer does not make me a babysitter; and let's be clear, as far as defence lawyers are concerned, I have little patience for clients that I have to babysit. The comment was also concerning because it clearly indicated to me that the judge had little understanding of the role of defence lawyers in our criminal justice system.
In the case of Walton Carter, a person commented on the CBC news feed:
And the lawyer,...in his wisdom and abundance of sense did not volunteer - back some months ago when he could have - that his client had foreign business relations and a recent wife who lived in a foreign country with her family.
solicitor-client privilege
Though I appreciate it is sometimes difficult to remember, it is important to recognize that all lawyers (not just Calgary criminal lawyers or defence lawyers generally) have solicitor-client privilege obligations. Just as a divorce lawyer cannot offer private information about his or her client, criminal defence lawyers cannot just volunteer information about clients without their client's consent. Certainly it is expected that any criminal lawyer who becomes aware that a client may breach bail conditions will properly instruct the client -- perhaps even admonish the client -- but it should never be expected that a defence lawyer (or any counsel) will improperly divulge information about a client to a Judge or anybody else. With all of this in mind, the lawyer for Mr. Carter could not -- and certainly was not -- obligated to volunteer information about his/her client.
Solicitor-client privilege is a bedrock principle in our criminal justice system. Within certain defined limits, every criminal defence lawyer in Calgary and throughout the Country has a duty of loyalty to his or her client. Trust me when I tell you that remaining steadfast to this duty can sometimes be challenging, but as difficult as it may be, it is important; for the client needs to have confidence that he or she can openly communicate with his or her lawyer without fear that those communications will be passed along to a third-party.
It is easy -- and I see becoming a little to common -- to cast criminal defence lawyers in the role of "bad guy" because we represent people who are accused of being bad guys. In Mr. Carter's case, it does not appear that the defence lawyer did anything wrong. There is no reported evidence that he was complicit.
the presumption of innocence
It is important to remember that every accused is "presumed innocent" until proven guilty. And make no mistake, some accused are actually innocent and many accused are actually not guilty of what they have been accused of. Of course, some accused are guilty, but they deserve no less a defence; for the irony is that it is through the prosecution of persons accused of crime that the interests of all law abiding Canadians are protected.
I know law abiding people think, "I'll never get into trouble", but what if you do?
If trouble happens to you, the Government may unleash seemingly endless resources to prosecute you. The Government employs hundreds of police officers, lawyers, doctors, experts, civil servants and even judges. In almost every case, all an accused has is a defence lawyer, along with some principles designed to even the playing field. As those principles are watered-down, the playing field shifts.
Based on my case from last year, along with the case of Mr. Carter and others, I worry that there may be a knee-jerk reaction by police, prosecutors and Judges who would otherwise grant reasonable bail to non-Canadian citizens or persons of means to shy away from granting judicial interim release. To this I say: it is important to remember that the majority of people who are granted bail do not abscond from the jurisdiction or flee prior to trial. In our system of justice, where the presumption of innocence is its golden thread, the right to reasonable bail should be assiduously upheld and protected. Though the system may fail occasionally, it works the vast majority of the time.
calgary criminal lawyers looking to earn your business
If you have been charged with a criminal offence and need a bail hearing, there are certainly many Calgary criminal lawyers looking to earn your business. For a free consultation with David Chow, call 403.452.8018.