In Defence of the Accused – The Value and Importance of a Fair Defence in our Criminal Justice System


Rachel Lichtman is a criminal defence lawyer in the GTA and the founder of Lichtman Law. She is passionately dedicated to providing every one of her clients with a full and fair defence. For more information about Lichtman Law please visit http://www.lichtmanlaw.ca/.


As a criminal lawyer, one of the most popular questions I hear is, “how can you defend a rapist or a murderer?” It’s a loaded question, so it’s worthwhile to first unpack some of its pitfalls. The first problem with the question is that it assumes that once someone is charged they are automatically guilty, before their trial, which is not the case. The question blatantly ignores the very laurels the Canadian criminal justice system stands  on  which  include  that  an  accused  person  is  presumed  innocent  until  proven  guilty.


After explaining this, the next question I get is “well what if you know he/she did it, how do you bring yourself to defending them?” The very simple answer is that if a client tells their lawyer they are guilty of an offence the lawyer cannot stand up in court and say or imply that their client is innocent.


However, there are other avenues to help a client who has admitted guilt. This is what most people refer to as the “small technicalities that set a heinous guilty person free.”


I would like to explore this idea because it is these small technicalities that allow each and every Canadian citizen to enjoy a free and democratic society. The police cannot break down your door, search your house and throw you in jail without just cause or reason. This is because in Canada we have the Canadian Charter of Rights and Freedoms which lays out the basic rights each citizen is afforded. Similarly if you are wrongfully charged, you cannot remain incarcerated for the rest of your life without having the right to a fair trial and being presumed innocent until you are proven guilty. It is important to note that the presumption of innocence is so crucial because of the automatic stigma attached to any person who had been accused of committing a criminal offence.


To highlight the importance of the rights each Canadian citizen has under the Canadian Charter of Rights and Freedoms, I will give you an example of a recent case I worked on. A black male in his early thirties was driving in Toronto at about 9:00 pm and he happened to be speeding. Two officers in a police cruiser pulled him over and issued the driver a speeding ticket. When issuing the ticket, the one officer decided that he smelt marihuana. The officer immediately arrested the driver without having any evidence that there actually was any marihuana on the driver’s person or in the vehicle. The officer then searched the driver’s vehicle and did in fact find marihuana. The marihuana was wrapped up and in the glove box compartment. The amount of marihuana found was enough for one joint, for one person, and for one instance of use. The officer also found a cell phone and $40.00 cash in the car. At the conclusion of the search the driver was charged with 3 criminal offences – possession of marihuana, possession of marihuana for the purpose of trafficking, the reason for this being that the marihuana was found in the same car as the cash and a cell phone, and possession of proceeds obtained by crime, which was the $40.00 cash.


There are a whole host of issues in the above scenario. The police abused their powers and acted outside of their authority. First, it is almost impossible for any human being to have actually smelt the marihuana given its small amount and location. The police simply wanted a reason to search this male so they created this fictitious smell so they could arrest him (a search incident to arrest is legal). However, the smell of marihuana in this case was not enough to arrest the male because there was no evidence of its existence. Even if the officer had somehow smelt marihuana the smell could have been there for many other reasons, such as someone smoked marihuana in the car at some point earlier that night. Further, after the police blatantly abused this man’s rights they decided to over-charge him as much as they could. The only real charge the police had against this man was possession of marihuana. Even then, the amount was so insignificant that the majority of police officers would not typically issue criminal charges.


Because of the charge of “possession of marihuana for the purpose of trafficking” the male in the above scenario is held in custody for a bail hearing instead of being released from the police station. The next day he is brought to the courthouse where he waits in the cells until his matter is addressed in court. If this man is lucky his matter will be heard that day and he will have a loved one appear to be his surety (supervisor) for his bail. However the term “lucky” here is quite crucial. This is usually not the case and an accused person will usually be held in custody for about 3 days before he is released on bail, if he gets bail. Keep in mind this whole scenario took place because the police breached this individual’s right to be free from “unreasonable search and seizure” as defined by the Canadian Charter of Rights and Freedoms, those crucial rights that usually get described as small technicalities.


Now this individual is criminally charged and the public will automatically see him as a criminal. Further, anyone aware of his charges will assume he is a drug dealer because of the charge related to trafficking. His case will take about 8 months – 1 year to get to trial. At his trial his lawyer will argue that his rights were violated and the charges should all be withdrawn. If the accused person is acquitted he will still be seen as a drug dealer who used a small technicality to his advantage. His lawyer will be asked how they could possibly defend a guilty drug dealer and have him acquitted based on a small technicality.


Now let’s go back to the initial question of how I could defend a person accused of rape or murder. First I understand they are only accused of the offence and they are still presumed innocent. Nonetheless, sometimes an accused person has committed the offence they are charged with, however even then there is usually more to the story. For example, the alleged murderer could have been a woman who suffered in an abusive relationship for years and she finally defended herself. Moreover, even if the accused did commit the offence, there is no excuse for their fundamental human rights to be violated by the state.


I can defend these people because I see them as just that, people. Sometimes they have done horrible things, but they are still people with rights. Further, I believe that every single individual deserves a fair trial and, it is this right that differentiates our democratic society from all oppressive forms of government.


In conclusion, it is precisely the defence of people charged with serious offences that affords every Canadian citizen the luxury of the rights they have in this country. A strong criminal defence bar ensures that every Canadian citizen, including those charged with serious offences, are free from unreasonable search and seizure, are free from unjustly being detained, enjoy the freedom of expression and religion, and all the other rights afforded to us under the Canadian Charter of Rights and Freedoms.


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