Difference between revisions of "Practice Recommendations on Criminal Law for Law Students (1:XIII)"

{{LSLAP Manual TOC|expanded = criminal}}

The accused may ask the student what they should do or what option they should take. The student should always remind the client that the choice is up to them, and refrain from telling the client what to do. Explain the options open to the client again and review the risks and consequences facing the client for each option. However, the student must not counsel a client to plead guilty unless they are actually guilty '''AND''' the Crown can prove its case beyond a reasonable doubt.  

In explaining the student’s assessment of whether Crown can prove its case beyond a reasonable doubt the student should never give clients “odds” or their chances of winning an acquittal. Rather, students should point out the possible defences available to the client and the difficulties, if any, of arguing such a defence.   

In certain circumstances, the course of action the client wants to take may render the student unable to represent the client, for example, if the client insists on illegal or unethical instructions, or where the client wishes to plead guilty for convenience.  Some examples of this are as follows:

At this point in time, the accused may ask what would happen if the complainant does not attend court to testify, even if summoned. Inform the accused that if the key witness does not attend at court, Crown may stay the charges against the client. '''If a Crown witness wishes not to attend to testify, they should obtain independent legal advice.''' If any witness has been summoned and fails to attend to a summons, they can be arrested and even jailed. In addition, '''the accused should be advised that if they tell a witness not to attend court to testify, they would be committing the criminal offence of obstructing justice''' (''[https://laws-lois.justice.gc.ca/eng/acts/c-46/ Criminal Code]'', s 139).

There is no property in a witness and the defence may contact Crown witnesses. However, the witness is not required to speak with the defence and this must be made clear to the Crown witness.

'''Note: if there is a no-contact order in place, the clinician can contact the witness only to discuss the trial, but the client cannot.'''''Italic text''

Prior to the trial commencing one should have reviewed the key evidence in the case and identified potential challenges to the admissibility of that evidence. One should consider if the admissibility issue or Charter challenge to the evidence can be canvassed with Crown counsel prior to the start of a trial. Generally, unless there is a good strategic reason to not inform Crown counsel, (i.e., informing the Crown will allow it to call additional evidence that the defence knows is available, but is not currently being called) admissibility issues should be brought to the Crown’s attention ahead of time.  

Challenging the admissibility of evidence is perhaps the most important work that the defence can perform as an advocate for the client, as lay litigants are ill-equipped to recognize and challenge inadmissible evidence. Rules of admissibility of evidence tend to be complex issues that require a critical analysis of the law followed by an application of the law to the facts. Diligent preparation would allow the student to present challenges to the admissibility of evidence and have inadmissible evidence excluded from the court’s consideration. Some challenges to the admissibility of evidence are simply made through objections and legal arguments at the time Crown seeks to adduce the evidence, while others will require the court to hear additional evidence that is relevant to its admissibility.  

LSLAP clinicians are encouraged to, but are not required to, appear in court to set a trial date. The trial date must be set with the approval of the supervising lawyer and according to LSLAP’s trial availability. Before attending court to set a trial date, confirm the length of time needed by the defence with the LSLAP supervising lawyer.

:'''NOTE:''' The client '''must''' still attend the Arraignment Hearing and enter a plea of not guilty in order for the trial date to be set.

The '''pre-trial conference''' is a procedural appearance for LSLAP files to confirm there is a trial supervising lawyer and that the matter is indeed going to trial, that there are no disclosure issues, and that ''Charter'' challenge notices have been given.