*Note: this blog post is not legal advice. If you are seeking assistance on a legal matter, I highly suggest you consult or hire a lawyer or paralegal. By reading this blog post, you understand that there is no solicitor/client relationship between you and the author.*
Recently, I was speaking to a good friend who was very intrigued by the way legal thinking works. I was surprised to see how much he knew about some common legal principles, and we had a nice discussion about how some of these principles work in day-to-day life.
After doing some reflection, I decided to share some insight on common legal principles that might come up in your future conversations. I hope they give you some new information, as well as insight about how lawyers and judges approach legal issues.
Principle 1: “Beyond Reasonable Doubt”
This is by far one of the most commonly discussed principles of law, and it usually makes an appearance during high-profile criminal cases.
For centuries, we as human beings have grappled with the reality that we have falsely or wrongly imprisoned people in the past. Some of those wrongly imprisoned were people accused of crimes like murder, and had to spend most of their lives languishing in a prison for a crime they didn’t commit. After advances in medical and forensic sciences were made, we came to understand that some of those people were falsely imprisoned. Even though some steps were taken to correct those mistakes, the damage was already done – these people had to suffer in prison for years, and when the death penalty was still legal in Canada, some of those falsely accused even lost their lives.
As a precautionary measure, we developed this legal principle to reduce (if not eliminate) the number of cases where a person is wrongfully sent to prison. It requires the prosecutor to prove to the trier of fact (either the judge or the jury) that the person accused of the crime has actually committed the crime. This means presenting evidence that shows that the elements of the crime have been committed by the accused person, and there is little, if any, reasonable doubt that the person didn’t do it.
Let’s put it another way; even if you have a very strong belief that the accused person is guilty, it is not enough to send them to prison. There has to be very little doubt in the judge’s mind to be able to convict them. Unless that burden of proof is met, judges would rather release the accused of the charges against them rather than wrongfully imprison them for a crime they didn’t commit.
This is a principle that often gets overlooked by the public in high-profile criminal cases. We are often quick to judge the accused based on the charges brought against the person, and sometimes even judge them based on some of the evidence that points to the accused. Although that evidence might be sufficient to lock the accused away for their crime, that evidence needs to be assessed rigorously through a trial in order to make sure that the evidence properly points to the real perpetrator. The strength of that evidence has to be so strong, that there is very little, if any, doubt that the accused person is the one who committed the crime.
Principle 2: “Guilty vs Not Guilty”
Somewhat related to the first principle is the concept of the accused’s plea. What is often misunderstood is that the words “guilty” and “not guilty” in a court of law is not the same as “guilty” and “not guilty” in our common language. In a court of law, if the accused pleads “guilty”, it means that they are admitting to the elements of the charged offence, and that the Crown does not have to prove its case to the court. If an accused pleads “not guilty”, it does not mean that they are saying they are innocent – it could mean a number of different things! For example, it could mean that the accused does not agree with the version of events that the prosecutor is going to present, or it could mean that the accused does not agree with the charge brought against them, even though it’s clear that an illegal act was committed.
Let’s take a simple example; if a person committed a theft of $4,000 in cash and stole some other items that are worth approximately $500, and the Crown prosecutor decides to charge the person with the crime of “theft in excess of $5,000”, that person could plead “not guilty” to the charge, even though there is enough evidence to suggest that he stole something. The reason for that is simple: the accused would have to face less serious consequences if they are charged with a lesser offence.
In a case like that, the prosecutor would have to make a judgment call about what charge they should pursue; if there is sufficient evidence to convict the accused of theft under $5,000, and the accused is willing to plead “guilty” to that, then a prosecutor may pursue that charge instead of the more serious “theft in excess of $5,000” charge. In either case, both sides are aware that some sort of act has been committed, and that it warrants criminal sanction in some way. A plea of “not guilty” by the accused is not the same as saying “I’m innocent” or “I didn’t do anything wrong”.
Principle 3: “The Freedom of Speech Rights”
In my opinion, this is one of the most misunderstood legal concepts in society. I often see people speaking their mind to express their opinions on certain topics, and when they feel that their opinions may be perceived as controversial or unwelcomed by people, they follow that up by saying that they are simply “asserting their rights to free speech”.
The fact is, we all have freedom of speech, and in Canada, that right is constitutionally protected under s. 2 of the Canadian Charter of Rights and Freedoms. However, that right mainly pertains to protecting you from the powers of the state. This means that, if you want to express your opinion, you can do so without fearing that the government will imprison you simply for speaking your mind. Some things that have been protected in the past as being “free speech” include freedom to criticize government in the press, expressions of culture on television and radio, even some forms of pornography. There are some interesting cases in recent history that demonstrate how the courts interpret “free speech”, and I suggest you read up about them if you have a chance! In other words: the right to freedom of speech protects you from criminal sanctions (with some exceptions, discussed below).
However, what this right does NOT do is give you an unrestricted right to use your speech against other individuals! This is especially true if the expression of speech is something that might be considered as hate speech or something that incites violence against certain groups. In fact, in those case, you can be arrested for violating certain sections of the Criminal Code, or become the basis of a complaint to a provincial or federal human rights complaint. Depending on the consequences of the expression of speech, you may even face a libel/slander suit in a civil court. If you were to try to assert your right to freedom of speech that is protected by s. 2 of the Charter in a civil court, the judge may not even listen to you, since that is not the proper application of that law.
Another thing that people often forget about this right is that it does not protect you from real-life consequences of expressing certain opinions. For example, if I am openly critical of a certain political party and make it abundantly clear that I disagree with their positions, I cannot rely on my freedom of speech rights in s. 2 of the Charter to force that party to accept me as one of their electoral candidates in the future. So, although the right to free expression exists, it is not a free ride to say whatever you want; so use your rights wisely!
Principle 4: Not all cases have the same impact
During some of my attendances to court, I often see self-represented people taking on the difficult task of making submissions to the judge by themselves. Oftentimes, these individuals have done some legal research and have found a legal case that they want to rely on to make their point.
However, there is usually a surprised look on their face when the judge disagrees with their case and rules against them. My guess is that they are surprised by the fact that the judge dismissed their legal arguments. What most people don’t know about the way the common law legal system works is that judges can distinguish case law from the situation in front of them, even on the tiniest difference.
For example, let’s say your car was broken into while it was parked in a public parking lot, and you want to sue the parking lot for not properly securing the parking lot and protecting your car. The parking lot company might argue that they are not responsible for protecting your car, and show that they had a clear warning on the front of the parking receipt that they gave you when you entered the parking lot. You might find case law that looks very similar to this situation, and you may even rely on it because the judge ruled in favour of the plaintiff in that case. However, the judge could still distinguish that case from your case if, for example, the case law that you are relying on had different facts (e.g. the warning was written on the back of the receipt instead of the front). This tiny difference, although seemingly irrelevant, can make a huge impact on the outcome of your case.
Legal reasoning and research is also a bit more complicated than simply finding a case with identical facts. Sometimes, it could hinge on the interpretation and implications of a certain word or sentence in a contract or a piece of legislation, and a thorough research effort should be done to understand how courts have interpreted those terms in the past before imputing your own interpretation. So if you are relying on your own legal research in a personal case, use that case law with caution!
Principle 5: Present the best possible defence in every case, for every client
“How can you defend a murderer/rapist/criminal, etc?”
I am sometimes asked this question by friends and acquaintances when I tell them I am a lawyer. Despite the fact that I don’t practice criminal law, it’s still a question that I think many lawyers get asked on a regular basis, even if it’s in a hypothetical sense.
Underlying this question is a dangerous assumption that many people don’t pick up on. That assumption is this: a person accused of a crime must have, or has at least likely, committed the crime. This assumption flies in the face of another pillar of our criminal justice system: innocent until proven guilty.
The danger in adopting the first assumption about the culpability of an accused is that it essentially denies the accused the right to a fair trial and a chance to present a good defence. It implies that the right to a fair trial should only be available to those who are not accused of serious crimes. It’s easy to forget the importance of a fair trial when the charges are very serious, or when the evidence strongly suggests culpability, and the allegations behind the charges are emotionally repulsive. However, it’s absolutely crucial that emotions are removed from this entire process, and that includes setting aside any presumptions we might have about the accused.
At this point, it’s the unenviable job of a criminal defence attorney to step into the shoes of the disinterested, emotionally neutral advocate for the accused individual. Those shoes are difficult ones to wear, especially as the trial goes on. I can guarantee you that this lawyer is constantly thinking critically of their client, wondering if their client really did commit the act they’re accused of, and whether the client is lying to them about the extent of their moral culpability. It’s an exhausting job on a mental level to be constantly thinking about that, and it sometimes doesn’t end when the judge has made their decision and the case is closed. It could continue for years after the fact.
Yet, despite this, the job of the advocate is to remove their emotions from the equation and focus on presenting the best possible defence for the accused. It’s a method to ensure that each individual who is accused of a crime is given a fair chance of fighting the charges, and to ensure that justice has been served.
Another related question that comes up is “what about lawyers who continue to represent these criminals, even after they told them they committed the crime? How do they live with themselves?”.
This is a question of legal ethics and professional responsibility. Although I can’t speak on behalf of all lawyers, I can speak to the fact that there are Rules of Professional Conduct that govern lawyers in Ontario, and that there are similar rules in every jurisdiction in Canada. In fact, every country with a well-established legal system has a similar code of conduct, although the extent of applying those rules can vary. This comes as a huge shock to people that ask me this question, and I have discovered over the years that there is an underlying assumption that lawyers are reckless, unregulated, unethical, and irresponsible individuals who will do anything to make a quick buck, even if it means lying and defending criminals. And when you see portrayals of lawyers on some TV shows and movies, you realize that this assumption is being fed into the minds of people on an almost daily basis.
The Rules of Professional Conduct that govern lawyers in Ontario emphasize the importance of advocating zealously for clients. However, they also emphasize that lawyers should not assist or encourage any conduct that they know is fraudulent or dishonest [Rule 3.2-7 of the Rules of Professional Conduct]. This could include fraudulent criminal proceedings where the client told their lawyer that they committed the act they are accused of, and they want the lawyer to lie on their behalf.