The Ethics of Criminal Defence Lawyers on Defending the Guilty.pdf

Canadian defence lawyers ensure fair trials by protecting clients’ rights, challenging the Crown’s case, and upholding justice through ethical advocacy. For more at akramlaw.com

2. The Ethics of Criminal Defence: Lawyers on Defending
the Guilty
Contents

.................................................................................................................................................................... 2
Understanding the Role of a Criminal Defence Lawyer .......................................................................... 3
Legal Obligation to Provide a Vigorous Defence ................................................................................ 3
Presumption of Innocence and Burden of Proof .................................................................................. 3
Why Every Accused Person Deserves Representation ........................................................................ 4
What If the Lawyer Knows the Client Is Guilty? .................................................................................... 4
The Difference Between Legal Guilt and Factual Guilt ...................................................................... 4
Ethical Rules: Lawyers Cannot Lie or Mislead the Court ................................................................... 4
The Focus on Challenging the Crown’s Case, Not Proving Innocence ............................................... 5
Ethical Boundaries in Criminal Defence ................................................................................................. 5
Rules of Professional Conduct (e.g., Law Society Guidelines) ........................................................... 5
Prohibited Actions: Fabricating Evidence, Coaching Witnesses ......................................................... 6
Permitted Actions: Challenging Evidence, Cross-Examining Credibility ........................................... 6
The Morality Debate: Public Perception vs. Legal Principles ................................................................. 7
Common Misconceptions About Defending Guilty Clients ................................................................ 7
Balancing Moral Judgment With Legal Duty ...................................................................................... 7
Why Defence Lawyers Are Vital to a Fair Justice System .................................................................. 8
Plea Bargains and Sentencing Advocacy ................................................................................................ 8
Negotiating a Fair Resolution, Even When Guilt Is Clear ................................................................... 8
Protecting Client Rights During Sentencing ....................................................................................... 9
Ensuring the Punishment Fits the Circumstances ................................................................................ 9
Why Ethics Matter in Criminal Defence ............................................................................................... 10
Maintaining the Integrity of the Legal Profession ............................................................................. 10
Safeguarding Constitutional Rights for All Citizens ......................................................................... 10

3. Upholding Trust in the Justice System .............................................................................................. 10
Contact Details of Calgary Criminal Defence Lawyer ............................................................................ 11

Understanding the Role of a Criminal Defence Lawyer
Legal Obligation to Provide a Vigorous Defence
Under Canadian law, criminal defence lawyers are ethically and
professionally obligated to provide their clients with a vigorous and
competent defence—regardless of the crime alleged or the client’s
perceived guilt. This obligation stems from the lawyer’s duty to both the
client and the justice system. The Rules of Professional Conduct
established by provincial law societies, such as the Law Society of
Ontario or the Law Society of Alberta, underscore this responsibility.
A vigorous defence means examining every aspect of the Crown’s case,
challenging the admissibility of evidence, cross-examining witnesses,
and raising legal defences that are available and appropriate.
Presumption of Innocence and Burden of Proof
A foundational principle in Canadian criminal law is the presumption
of innocence. Every person charged with a crime is presumed innocent
until proven guilty beyond a reasonable doubt. This standard is not a
mere technicality; it is a safeguard against wrongful convictions and
arbitrary state power.
It is the Crown’s responsibility to prove the accused’s guilt. A defence
lawyer’s role is not to prove innocence but to ensure the prosecution
meets its burden. This often includes highlighting weaknesses in the
Crown’s case, seeking exclusion of unlawfully obtained evidence, and
ensuring the client’s Charter rights—such as protection from
unreasonable search and seizure or the right to silence—are respected.

4. Why Every Accused Person Deserves Representation
The right to legal counsel is guaranteed under Section 10(b) of the
Canadian Charter of Rights and Freedoms. It ensures that even the most
unpopular or seemingly guilty individuals receive a fair trial.
A defence lawyer does not condone criminal behaviour by providing
representation; rather, they act as a check on the state’s power. Without
robust defence advocacy, wrongful convictions would become more
common, and public trust in the justice system would erode.
Representation ensures that trials are fair, evidence is lawfully obtained,
and legal procedures are followed properly.

What If the Lawyer Knows the Client Is Guilty?
The Difference Between Legal Guilt and Factual Guilt
In the criminal justice system, factual guilt refers to whether the
accused actually committed the act. Legal guilt, however, is determined
by whether the Crown has proven the charge beyond a reasonable doubt
in a court of law.
A client may admit to their lawyer that they committed the act, but
unless the Crown has met its burden of proof, that admission does not
automatically translate to a conviction. The lawyer’s responsibility is to
work within the legal framework—not to judge the client but to ensure
the process is fair and just.
Ethical Rules: Lawyers Cannot Lie or Mislead the Court
While defence lawyers have a duty to represent their clients zealously,
this does not include deceiving the court. The Canadian Bar
Association’s Code of Professional Conduct and provincial law
society rules prohibit lawyers from knowingly presenting false evidence,
lying to a judge, or allowing their client to do so.

5. If a client confesses and insists on testifying falsely, the lawyer must
take steps to prevent this. In some cases, this may mean withdrawing
from the case or restricting the scope of the defence. However, lawyers
are still permitted—and obligated—to ensure the Crown’s case is
properly challenged, and that their client’s rights are respected
throughout the proceedings.
The Focus on Challenging the Crown’s Case, Not Proving Innocence
When a lawyer knows their client is guilty, the focus of the defence
shifts. The lawyer may no longer argue that the client is innocent, but
they can:
 Ensure that illegally obtained evidence is excluded
 Challenge the credibility of prosecution witnesses
 Argue that the Crown has failed to meet its burden of proof
 Raise legal or procedural defences (e.g., Charter violations, lack of
intent)
This approach upholds the adversarial process while respecting the
lawyer’s ethical boundaries. The goal is not to “get someone off the
hook,” but to ensure the state proves its case lawfully and fairly. Even
guilty individuals have legal rights—and protecting those rights is
essential to the integrity of the Canadian justice system.

Ethical Boundaries in Criminal Defence
Rules of Professional Conduct (e.g., Law Society Guidelines)
Every practising lawyer in Canada is governed by their provincial or
territorial law society. These regulatory bodies—such as the Law
Society of Ontario or the Law Society of Alberta—enforce Rules of
Professional Conduct that outline the ethical framework for legal
practice.

6. Under these rules, criminal defence lawyers must:
 Act with integrity and candour
 Maintain client confidentiality
 Avoid bringing the administration of justice into disrepute
 Promote respect for the legal system
These ethical rules ensure that lawyers do not become complicit in
unlawful activity and that their advocacy strengthens, rather than
undermines, the justice process.
Prohibited Actions: Fabricating Evidence, Coaching Witnesses
There are clear lines that must never be crossed in a criminal defence:
 Fabricating evidence: Lawyers must not manufacture or
encourage the creation of false documents, witness statements, or
other forms of evidence.
 Coaching witnesses: While lawyers can prepare witnesses for
court, they are strictly prohibited from telling witnesses what to
say or encouraging them to lie.
 Misleading the court: A lawyer cannot knowingly allow a client
or witness to provide false testimony, nor can they make false
statements themselves.
Permitted Actions: Challenging Evidence, Cross-Examining
Credibility
Despite these restrictions, defence lawyers are given wide latitude to
challenge the prosecution’s case—within the law:
 Challenging the admissibility of evidence: Lawyers can seek to
exclude evidence obtained through unlawful search or seizure, or
evidence that violates the Charter.

7.  Cross-examining Crown witnesses: Lawyers can test the
reliability and consistency of testimony, question motives, and
highlight contradictions.
 Raising legal arguments: Even if a client appears guilty, the
defence can argue technicalities such as procedural errors, breach
of rights, or insufficiency of proof.

The Morality Debate: Public Perception vs. Legal Principles
Common Misconceptions About Defending Guilty Clients
One of the most persistent myths is that criminal defence lawyers are
trying to “help criminals get away with it.” This perception
misunderstands both the role of the lawyer and the purpose of the justice
system.
In Canada, a defence lawyer’s job is not to prove innocence, but to
ensure the Crown meets its legal burden. Even if a client is factually
guilty, they are still entitled to due process, protection of Charter rights,
and access to competent legal representation. Without these safeguards,
anyone—guilty or innocent—could fall victim to abuses of power,
procedural errors, or false accusations.
Balancing Moral Judgment With Legal Duty
Defence lawyers may personally struggle with the conduct of certain
clients, but professional ethics require them to set aside personal
feelings. The duty of loyalty and confidentiality to the client, along
with the obligation to uphold the integrity of the legal process, takes
precedence over moral judgment.
Lawyers are not endorsing the crime; they are defending the right to a
fair trial, a principle that benefits everyone in society. As many lawyers
have said: “I don’t have to agree with what my client did to make sure
the law is applied fairly to them.”

8. Why Defence Lawyers Are Vital to a Fair Justice System
The Canadian justice system is adversarial, meaning it depends on each
side being represented fairly to reach a just outcome. Defence lawyers
play a critical role in:
 Preventing wrongful convictions
 Holding the Crown to its burden of proof
 Exposing unlawful police conduct
 Protecting constitutional rights
Without dedicated defence counsel, the justice system would tip
dangerously in favour of the state—undermining fairness and public
confidence. In this way, defence lawyers are not defending crime; they
are defending justice.

Plea Bargains and Sentencing Advocacy
Negotiating a Fair Resolution, Even When Guilt Is Clear
A plea bargain—also known as a resolution agreement—involves the
accused pleading guilty to a lesser charge or receiving a reduced
sentence in exchange for foregoing a trial. While some view plea deals
as “letting offenders off easy,” they are often used to:
 Avoid lengthy and costly trials
 Secure accountability in cases where conviction is likely
 Prevent harsher outcomes that may not reflect the facts of the case
Defence lawyers are ethically bound to negotiate resolutions in their
client’s best interests, ensuring that any guilty plea is informed,
voluntary, and based on accurate facts.

9. Protecting Client Rights During Sentencing
During sentencing, defence counsel ensures that the client’s Charter
rights and procedural protections are respected. This includes:
 Presenting mitigating factors, such as mental health issues,
addictions, lack of prior criminal record, or a history of abuse
 Submitting character references and supporting documentation
 Ensuring the client understands the consequences of the plea,
including immigration implications, employment impact, or travel
restrictions
Lawyers also ensure the Crown and court comply with sentencing
principles under the Criminal Code of Canada, such as restraint,
rehabilitation, and proportionality.
Ensuring the Punishment Fits the Circumstances
In Canada, sentencing must align with section 718 of the Criminal
Code, which outlines the purposes and principles of sentencing,
including denunciation, deterrence, rehabilitation, and promoting a sense
of responsibility in the offender.
Defence lawyers play a vital role in arguing for a sentence that:
 Matches the degree of moral blameworthiness
 Considers the client’s individual circumstances
 Avoids excessive or unjust penalties
 Upholds Gladue principles for Indigenous offenders, where
applicable
Even when a guilty plea is entered, a defence lawyer’s job is far from
over. Their advocacy ensures that the punishment is fair, humane, and
appropriate to both the offence and the offender.

10. Why Ethics Matter in Criminal Defence
Maintaining the Integrity of the Legal Profession
Criminal defence lawyers are officers of the court. Their work must
reflect the highest standards of professionalism, honesty, and
responsibility. When lawyers act ethically, they reinforce public
confidence in the legal profession and demonstrate that legal advocacy is
not about “winning at all costs,” but about ensuring justice is served
properly and lawfully.
The Law Society of Ontario and other provincial law societies enforce
ethical standards to prevent abuses of power and to discipline
misconduct. Lawyers who maintain integrity strengthen the reputation of
the profession and contribute to a culture of accountability and fairness.
Safeguarding Constitutional Rights for All Citizens
Ethical defence work helps protect the Charter rights of every person
in Canada—not just those accused of crimes. This includes:
 The right to be free from unreasonable search and seizure
 The right to silence and legal counsel upon arrest
 The right to a fair and public hearing by an independent
tribunal
Without ethical lawyers who are willing to challenge police misconduct
or prosecutorial overreach, these rights could be eroded. In that way,
defence lawyers act as guardians of civil liberties, ensuring the state
does not exceed its lawful authority.
Upholding Trust in the Justice System
A justice system that is perceived as biased, arbitrary, or unjust will
quickly lose the confidence of the public. Defence lawyers who follow
ethical rules—while advocating fiercely for their clients—help maintain

11. a balance between the rights of the accused and the interests of
society.



Contact Details of Calgary Criminal Defence Lawyer

Akram Law - #280, 700 - 6th Avenue SW, T2P 0T8, Calgary, AB

Phone Number: 403-774–9529
Email: [email protected]
Website - akramlaw.com

Business Hours: Monday-Thursday: 9 AM-5 PM, Friday: 9 AM-12 PM,
Saturday: 10 AM-1 PM