Following my call to the Bar, I traded in my dogeared copy of the Rules of Civil Procedure, turned my back on the Masters’ courts at 393 University, and returned to the world of criminal defence advocacy.
In the past five weeks, there’s five things that I have quickly learned to be universal to the practice of criminal law.
Before law school, as a clerk, I once emailed a seasoned litigator a rudimentary question about service not knowing where to look for answers. In response, I heard a loud thunk as the Rules fell onto my desk. This gift came accompanied with an emotionless “Here – just read this. It’s in there” before subsequently walking back to his office. He bestowed this book with all the excitement of a weary hotel employee handing a perky tourist a pamphlet to answer a common question which he had answered countless times before. While this probably wasn’t the most helpful answer, I quickly understood how true it was. Despite his enthusiasm, I learned my lesson quickly. I became reliant on the Rules of Civil Procedure as a “Bible” that I could address at almost any crossroads – especially with the footnotes and case commentaries.
While criminal lawyers are still governed by Court Rules and practice directions, the Criminal Code and unwritten conventions seem to determine most aspects of our practice, We don’t have an intractable map like the Rules of Civil Procedure or the Family Law Rules.
The criminal process is less reliant on hard structures, standardized forms, and motions. We’re forced to run the ball down the field reliant on only a few sign-posts such as Crown resolution meetings, Judicial pre-trials, and sometimes a Preliminary Hearing. Ingenuity and social skills play a large role in effectively navigating the criminal court system. Success requires speaking to more senior counsel, colleagues, Crowns, and court staff who have more experience in a more obscure area or procedure that we haven’t had the opportunity to delve into.
A mentor of mine once told me – “Criminal defence lawyers are like alley cats, you never find more than a few of us one place at one time.” Many criminal defence lawyers are sole practitioners or work in small groups with a few exceptions.
Due to this quality, we are forced to be civil and reliant on other members of the Bar for guidance, insight, and advice. This builds collegiality, a close-knit community, and provides someone to send your client’s co-accused to. While we all may not have someone down the hall to bounce ideas and plans off of, we should all have someone we can meet for coffee or pin down in the lawyers’ lounge to pump for strategies to solve our new or unique obstacles.
I have many colleagues on (and off) Bay Street who work hours spanning far beyond nine to five. I’m not asserting that oppressive or inconvenient scheduling is exclusive to the criminal bar. However, I doubt many of my colleagues working in tax law or real estate law get calls from their clients in the small hours of the morning from cellblocks.
It doesn’t matter that the markets are closed or insurance adjusters have gone home for the day. Your client isn’t bound by such arbitrary boundaries. He or she has surely managed to make some questionable decisions that landed them in police custody after the bars let out on a late Saturday night. As a teenager, my parents told me that – “nothing good happens after 2:00AM.” Well, Mom and Dad, I guess you were right. These events lead to weekend hours in the office preparing a surety and making bail arrangements for a Monday or Weekends and Statutory Holiday (WASH) court.
In the practice of criminal defence, you don’t have the luxury of defending faceless insurance companies or large corporations with advanced clerical departments and in-depth records. When you adjourn a matter because the Crown isn’t prepared to proceed, you can’t bring a motion for costs. Similarly, you can’t note the Office of the Attorney General in default for not responding to your disclosure request on your schedule.
While there is excellent value in keeping the Crown on their heels to resolve matters quickly and efficiently, acting friendly and welcoming wins more cases over a career over being aggressive and short – even if you do have the upper hand. Earning the trust of the Crown and Court is essential to practice if you want to continue your successes. Hostility and aggression on an uneven battlefield is never the path of least resistance. The criminal bar is both a small pool and a carousel; it turns around quickly with the same people. Learning how to push the limits as far as you can to advance clients’ interest, while still working towards the trust you need with others is significant challenge and art that must be crafted.
Unlike working for institutional clients who routinely issue “Cease and Desist” letters, write and breach contracts, or defend thousands of insurance suits every year, criminal clients are personally at risk in many ways.
Even a summary offence can have impacts on a client’s reputation, family life, travel prospects, or future employment. If they are successful in defending the charge(s) and receiving an acquittal or diversion, it can still be a very stressful, emotional, and financially challenging journey. The stigma associated with a singular criminal charge – let alone a conviction – has far reaching social impacts. As combatants, we sometimes forget this since we are so deep in the trenches and separated from the civilian life that we once knew.