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High School Confidential

Earlier this week I had the pleasure of speaking to two law classes at Canterbury High School. I always like speaking to classes, seeing what kind of things they are curious about and what kind of questions they'll ask. In this instance, we got into some interesting issues. After a few questions about youth records and possession of marijuana (and a rather insightful question from a student in a wheelchair about whether he could be charged with impaired driving for operating his wheelchair) we got into some larger, ethical issues that face criminal lawyers every day. One student asked the following: 

"What if you have a client who says that they're guilty, but then wants to plead not guilty. What do you do?"

At first blush, this is a pretty simple question. But it actually brings in a number if issues that are fundamental to how criminal law works.

The short answer is: you go to trial. The individual pleads not guilty and then a judge decides whether they find they guilty or not guilty. But I think the student was trying to see if there was an ethical issue with representing someone as not guilty, when in fact they've admitted to committing an offence.

The starting point, of course, is that a defendant in criminal court does not have to prove that they're innocent, but instead the Crown has to prove that they are guilty. The burden of proof is always on the Crown to prove each element of the offence and individual is absolutely entitled to go to trial and test the Crown's evidence.

The other important consideration is that just because someone has technically committed an offence, and may be guilty 'in fact' does not mean that they are guilty 'in law.' A simple example is impaired driving. Most people who are charged with driving with over 80 mg of alcohol in their blood indeed were driving with alcohol in their system. But does that make them guilty? Not necessarily. The police need to have followed the proper procedures to ensure that they came up with a breath sample that is reliable. They need to have respected the client's Charter rights. They may not be guilty 'in law.'

As another example, consider an assault where somebody punches someone in the face. We need to consider the larger context. Were they engaged in a consensual fight? Was it self-defence? What actually happened? The facts of the case might bring up a defence, which then would result in the person being found not guilty.

Of course, when a client admits to having committed an offence, it might affect the way in which the lawyer can run a trial, but that is a post for another day.

Thanks for having me, Canterbury!

(If you have a question that you'd like me to explore on the blog, be sure to leave a comment below or send an e-mail to annemarie@mcelroylaw.ca)

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