Toronto Criminal Defense Lawyer – Common Questions from the Public

Introduction

Criminal defense lawyers are often at the centre of many questions from the public on topics such as becoming a Toronto Criminal Defense Lawyer, the ethics of being a criminal defense lawyer, how much it costs to retain a defense lawyer, how can a defense lawyer represent a guilty person — and the list goes on!

As a practicing criminal defense lawyer in Toronto, you hear these questions asked by a wide range of people, from clients, to the media and even friends and family.  Some people have pre-determined notions of how criminal defense lawyers practice and operate by watching fictional TV shows and movies, such as Suits, The Lincoln Lawyer, Better Call Saul, Law & Order, amongst others.

I will provide you answers to some of these general questions, thoughts and queries from the perspective of a practicing Toronto criminal defense lawyer.

What is a Criminal Defense Lawyer

Toronto Criminal Defense Lawyers are lawyers that have a focus on representing individuals charged with crimes. Any lawyer licenced to practice law can choose which area of law in which to practice. Defense Lawyers have chosen an area of law that involves a variety of skillsets and work, including:

• Client communication
• Court appearances, from Trials to Appeals
• Legal research and drafting

The bulk of a Toronto Criminal Defense Lawyer’s work is litigation oriented, as compared with, let’s say, a real estate lawyer, who tends to be involved in non-litigation legal work. Criminal Defense Lawyers are often referred to as Barristers, given the amount of time they spend in court.

Why Do You Need a Criminal Defense Lawyer

There is an old saying which is that “A lawyer who represents him/herself in court has a fool for a client”.

The implication in this saying is that it is not wise to represent oneself in a legal proceeding, even if they are legal counsel.   It is legally possible to represent yourself in a criminal case.  You have to ultimately make the decision as to whether you will self-represent, but here are some factors as to why doing so would be doing yourself a disservice:

• The criminal justice system and process is exceedingly complex – there are deadlines, timelines and procedure that only a criminal defense lawyer will know about
• Criminal law is complex and always evolving.  It would be impossible for you to “catch up” to speed on the many, any years that a Toronto criminal defense lawyer would have spent learning the law, both in law school and practice
• This is not a civil case where, for example, only money might be on the line. In criminal cases, your life, liberty and freedom are on the line.  Criminal law has implications that are far reaching and that can impact your entire life, not just your bank account
• Criminal Law is vast, and comprises a number of different body of rules and laws that would be impossible to learn while self-representing.  For example, there the Criminal Code of Canada, the Youth Criminal Justice Act, the Controlled Drugs and Substances Act, the Charter of Rights and Freedoms, and the list goes on
• A lay person will be unable to effectively negotiate with an experienced Crown Attorney in more complicated criminal cases

Should I Hire a Toronto Criminal Defense Lawyer

The answer to this question is really answered in the question directly above.  It is highly recommended that you do not self represent if you can avoid it.  If you cannot retain a Toronto Criminal Defense lawyer privately (by paying) and do not qualify for Legal Aid, there are other ways in which to secure counsel at either reduced rates (for example, via Justice Net) or without any cost to you (via Legal Aid) or Pro Bono legal services (which are harder to come by).

How Much do Local Criminal Defense Lawyers Cost

A local Toronto Criminal Defense Lawyer in Toronto does may bill you on an hourly rate or on a flat (or block) fee. Hourly rates range from $250 (for a junior defense lawyer) to $1,000 for more senior and experienced defense lawyers.  Some Toronto Criminal Defense Lawyers will charge you on a flat rate basis.  The flat rate may be for the entire case itself or for portions of the case (called a Limited Scope Retainer).  Factors that influence cost when it comes to flat rate billing include:

• The number of charges
• The seriousness of charges
• The complexity of the case
• The volume of disclosure expected
• The court location
• And other factors

Some defense lawyers accept Legal Aid. For those lawyers, if you qualify for Legal Aid and they accept your Legal Aid certificate, they do not charge you any fees – the government will pay them for their work. 

What if You Can’t Afford a Criminal Defense Lawyer in Toronto

Not everyone who is charged with a crime has the financial capability of retaining a Toronto Criminal Defense Lawyer privately (by paying them).  If money is an issue, the start point is to consider an application for Legal Aid. 

Legal Aid Ontario is your point of contact here, and you would contact them to inquire about obtaining a criminal Legal Aid certificate.  You would need to submit an application and Legal Aid will determine if you qualify.  Typically, Legal Aid looks at your income and whether there is a risk of jail in your case.  Currently, if you earn of $22,720 and do not have any family for whom you provide, you will not meet their financial eligibility.  Additionally, if you cannot establish that the Crown will be seeking jail time in your case, you would not meet the “legal” criteria.  Legal Aid may make exceptions to their “cut offs”, however, so an application may be worth it.

When Do You Need a Toronto Criminal Defense Lawyer

There are a few different times at which you may consider retaining a Toronto Criminal Defense Lawyer, including:

• When you receive a call from the police who ask you to speak to them
• When you have been arrested for a crime
• When you have been arrested and charged for a crime
• When you have been convicted of a crime and are seeking an appeal

The most common point at which a defense lawyer begins his/her work is when a client reaches out to them after being arrested and charged.  Once the individual has a court date, the client and a lawyer can discuss a plan of action on how to approach the case, what the steps might be and what legal fees would be as well.

Is a Criminal Lawyer and a Criminal Defense Lawyer One and The Same

A criminal lawyer may include a criminal defense lawyer and a Crown prosecutor.  A criminal defense lawyer, on the other hand, only describes lawyers who represent individuals accused of crimes.  Therefore, a “Criminal Lawyer” is a broader category of lawyers that captures the two types of lawyers that are involved in a criminal court proceeding.

Do Criminal Defense Lawyers Always Know the Truth About What Happened

A Toronto Criminal Defense Lawyer, or any criminal defense lawyer for that matter, has a number of roles when serving a client, including:

• Zealously representing that client and protecting each of their rights
• To ensure that the client gets a fair trial
• To carefully examine the evidence put forward by police and ensure there determine whether there have been any abuses of state power leading up to the point at which charges are laid
• To expose flaws and problems with the prosecutor’s case and evidence

A criminal defense lawyer does not have an ethical obligation to “seek” the truth – that is not necessarily the function of a defense lawyer.  Attempting to find the truth from a client may be but one strategy a defense lawyer employs, but there may be others. 

For example, some defense lawyers will not ask their client for their version of events and, instead, simply focus on the state’s case and whether or not the state can prove the case beyond a reasonable doubt.   Note that, if a defense lawyer obtains a client’s story about what happened, the lawyer cannot later mislead the court by suggesting that something the client said happened did not happen.

What Should You Say (Or Not Say) To a Criminal Defense Lawyer

A common question the public has involves around what to reveal to a Criminal Defense Lawyer. Criminal Defense Lawyers have a number of duties to satisfy, including:

• A duty to their clients (privilege and confidentiality)
• A duty to the courts and administration of justice (such as a duty to not mislead the court)

If a client reports a particular “fact” to a Defense Lawyer, that may limit the Defense Lawyer’s ability to question witnesses and advance theories at a trial. For example, if client A tells a lawyer that he committed the murder against individual B, the lawyer cannot suggest otherwise in court. The lawyer, however, still must advocate for the client and protect that person’s rights, such as by exploring whether there may be defences based on the evidence compiled by police. This is technically how a Criminal Defense Lawyer can represent someone who admits to a particular act, but still wants their day in court.

The best practice may be to ask your lawyer, before divulging information to them, about what they want you to disclose and when. Each Toronto Criminal Defense Lawyer may have their own approach for this, and this may, invariably, depend on the charges the accused is facing.

How Does a Criminal Defense Lawyer Defend Someone Who is Guilty

The million dollar question!   When I tell other people that I a criminal defense lawyer, this is one of the most common questions I get.  And speaking to colleagues in the profession, I’m not the only one who gets it.

The starting point to the answer is that every individual has a legal right to representation, regardless of how serious, heinous or morally unacceptable the crimes they are accused of are. A defense lawyer has a duty to uphold this right. Secondly, what takes place at a trial is a determination of one specific issue – can the Crown Attorney prove beyond a reasonable doubt that a particular crime occurred.   Defense lawyers are solely concerned with “legal guilt” and not whether the crime actually, or factually, occurred.

Is a Prosecutor Above a Defense Lawyer in Rank

No – a prosecutor (or Crown Attorney) is on the same playing field as Criminal Defense Lawyers. They are simply on the other end of the table, representing the State (now His Majesty the King) in all prosecutions of crimes. A Judge, on the other hand, is of a higher “rank”, if you want to call it that, than a Crown or Defense Lawyer.

About the Author – Toronto Criminal Defense Lawyer – Andrew Captan

Andrew Captan is an experienced Toronto Criminal Defense Lawyer who has been practicing criminal law for over 11 years. For a free, no obligation consultation, call (647) 878-6355, e-mail andrew@captanlaw.com or visit his site HERE.