Top Five Criminal Defence Myths to Avoid: A Barrister Explains How to Save Money While Still Getting an Optimal Result

Despite these challenging times, the wheels of justice continue to turn. Albeit perhaps a bit more slowly than usual.

Even though you’re hardly leaving the house, you might still find yourself in need of a criminal or regulatory defence lawyer. And now is definitely not a time anyone wants to be detained in custody (not that anyone ever wants that).  It’s understandable you could be particularly stressed about how you can afford a lawyer when every dollar counts.

You might be shocked to learn that criminal law is the bargain basement fire sale of the legal world. I’ve more than once had people casually mention to me with complete certainty at social gatherings how they know criminal lawyers are the richest of all lawyers, while the reality of them being the poorest paid of all the legal specialties is exactly the opposite. I’m never sure where people get that impression from, since watching cops and robbers shows usually doesn't reveal lifestyles of the rich public defender (which perhaps seems more reserved on TV for civil and family litigators). But nonetheless, that’s the impression. 

However, the true reality of criminal lawyer fees is good news for anyone in Canada charged with or being investigated for an offence, or with a family member, loved one or friend in that position. The secret to this criminal law bargain is predictability and efficiency in criminal court procedure.

Unlike in family or civil litigation, where it’s mostly private litigants butting heads who can and do spend each other into the ground if they so chose, in criminal litigation you’re up against the Crown. While there is some variability in the way the Crown might respond depending on who is the individual Crown assigned to your file, they still in theory all have to play fair and follow lots of rules. And if they don’t, you can turn to the courts for help. I served for many years as a Federal Crown myself, so I’m speaking from experience. 

Here are my top five myths to avoid on defending a criminal charge and hiring a criminal lawyer that can all cost you plenty in the end if you fall into their traps.

1. I’m Guilty So I Don’t Need a Lawyer 

What you “did” or didn’t do may have little bearing on a court being able to convict you of what you are accused of. Even if you “did” something, you might be charged with an offence completely unrelated to that something. Or charged with many offences unrelated to anything you did. Or there may be major technical problems with the charges, like their being laid outside the limitation periods. 

Even if you do ultimately plead guilty, the type of punishment you get can vary from potentially wrecking your life to having only innocuous effects, all without jail being a risk on either end of the punishment spectrum. For example, if you don’t have a criminal record, and you get offered a harmless little sounding thing called a “suspended sentence,” you might think you should jump at it, because there’s no jail and no fine!

But what if you then lose your job or can’t travel internationally, because you’ve suddenly got a criminal record? The small amount of money you might have saved on not hiring a lawyer will be more than set off by potentially huge loss of income or life freedoms.

A lawyer might have been able to get you a “discharge” for exactly the same conduct, which wouldn’t be a criminal conviction counting against you. Or could at least explain and negotiate all the possible outcomes in order to get the optimal one for you, that would best fit your life circumstances.

2. Always Hire the Lawyer Who Guarantees a Result

It’s never a bargain to hire a lawyer who is offering you “guarantees” they can’t uphold. Run away from any criminal lawyer as fast as you can who guarantees you a result. Trust me, that just isn’t possible. Criminal law results are ultimately up to the judge hearing your case, even on a guilty plea where the Crown is in agreement with the defence as to sanction.

If anything, you want to hire the lawyer who tells you the truth, not what you want to hear. 

That doesn’t mean you should hire (or keep) anyone who you feel is unreasonably pressuring your to plead guilty, by telling you you’re guaranteed to lose at trial. It’s always completely your choice on whether or not to plead. Your lawyer can only give you advice. It’s always better going to trial and losing, than pleading guilty to something you didn’t do. 

3. The Cheapest/Most Expensive Lawyer is Always the Best

In law, like in many things in life, you don’t always get what you pay (or don’t pay) for. There are no law society rules in Canada dictating what defence lawyers can and can’t charge. The market sets their rates. 

Certainly defence lawyers have to be competitive. But you’ll need to carefully compare fee quotes to see what is or isn’t being included in the quote. This isn’t like buying a car, where the brochure carefully explains the extra options of each more expensive trim level.

The cheapest lawyer quote risks not including all the services you need, or having hidden extras. The most expensive lawyer quote risks you buying more services than you need. And neither cheapness nor expense may be tightly tied to experience, where while one might think the cheap lawyers are the least experienced and the most expensive are the most experienced, that isn’t always true, and especially may not translate into who can achieve what results for you. 

Most agree that a “block” flat legal fee quote is best where possible for criminal court cases (and is a thing most criminal lawyers will provide), but check what that really includes:

• is it for the entire proceeding including the trial and do you really need that?

• if it is for part of the proceeding, how much of the proceeding is included?

• are there extra charges for other optional proceedings?

• are you paying for travel time, travel costs, or other disbursement?s

• does the lawyer clearly set out all her or his fees in writing?

And as attractive as a block fee might be, sometimes an hourly rate might actually be cheapest for you depending on your type of case as it lets you only use the services you need. Ask any prospective lawyer about the pros and cons of block fees versus hourly rates. 

4. Rolling the Dice at Trial is Always the Best Plan

The most certain way to cost yourself way more money on a defence lawyer than needs to be spent, and get an inferior result, is to think it best to always gamble with a trial. True, proof beyond a reasonable doubt is a high standard for the Crown to meet. And your lawyer will tell you how strong or weak the Crown’s case is.

But insisting on a trial where a good early plea resolution deal is to be had will definitely cost you way more money than resolving (generally proportionate to the number of trial days required), and could make all the difference between jail or no jail, or discharge versus conviction, because going to trial means you’re not cutting a discount deal with the Crown, and the trial judge likewise isn’t giving you a discount for an early plea because you’ve taken up trial time. 

Yes, you’ll always have a shot at an acquittal at trial. But that’s what it is: a gamble. You might get lucky or unlucky with the judge you get. You might get lucky or unlucky as to what witnesses remember. But at the very least, you’ll pay a lot more in fees. 

Remember, as a criminal defence lawyer, I support myself and my family from those who do pay more by going to trial. But it’s my duty to get you the optimal result, not to needlessly take your case to trial so that I can bill you more. Sometimes trials are absolutely needed. I’ve done hundreds of them. But often they aren’t required, and that will save you lots of money.

5. No Need to Worry Too Much About the Trial Result Since You Can Always Appeal

Your best legal shot is always at trial as compared to an appeal, if you can’t resolve your case pre-trial. At trial, there is an at least in theory level playing filed. On appeal, according to Court of Appeal for Ontario statistic you’ll at best stand a 1 in 3 shot. And that’s not of acquittal, only of getting some remedy. Maybe only a reduced sentence. Or maybe a new trial, which will cost you lots more money. 

And be certain that appeals are definitely not cheap. For the most part, they cost more than trials, because of the transcript costs of all the trial proceedings, and because of all the time that is required to be devoted to drafting complex legal written submissions and combing through all trial exhibits. 

So think of an appeal as a last resort. Yes, if you’re facing really serious charges, you might need to budget in advance for an appeal in addition to the trial in order to lesson the risk of a decade in jail if you lose the trial. But if your budget is tight, it’s definitely the trial rather than the appeal that you should be investing in by hiring a good lawyer at earliest time possible.

Gordon Scott Campbell is a defence lawyer who represents clients on criminal, regulatory and professional conduct hearings, trials and appeals throughout Canada up to the level of the Supreme Court of Canada. He previously served as a Federal Crown Prosecutor and is author of The Investigator’s Legal Handbook/Le manuel juridique de l’enquêteur (Carswell/Yvon Blais, 2006, 2010 francais, 2014 2nd ed, 3rd ed forthcoming). Learn more at www.defenceeast.com and www.proconductlaw.com.

Must I Consent to a Police Search Request? And the Uncontrollable Urge to Say "Yes"

"No." Unlike some of my what can unfortunately seem like long winded and not as definitive as clients might like answers, consent to search spawns a clear cut single word answer. At least in Canada. 

Police questioning is totally different from police searches as to whether you have a choice or not in responding. While my default advice is always “say nothing” in response to police questions, unfortunately the real world is much more nuanced than that. Sometimes you must answer police questions, depending on what they are asking about (like insurance automobile questions). And sometimes it's in your best interests to answer police questions in an attempt to clear up suspicions and avoid being charged, even if you aren't obliged to answer (though often its not a good idea to do so). But never do you have to consent to a search.

Either the Police Have a Power to Search or They Don't

Either the police have powers and grounds to search, or they don't. It's only when they don't have grounds that they might ask you a question after a highway speeding stop like: "you mind if I take a look in your trunk?" And sometimes if you do say "no", you might get a response like "hey, if you don't have anything to hide, why would you say no?" Your best response is to remain firm and polite in your "no." At the very least, call a lawyer for advice. 

Sometimes, the police might even pull out a form for you to sign, which says that you've been told: (1) you don't have to consent, (2) that you can withdraw your consent at any time, and (3) anything found during the search can later be used against you as evidence in court. Now reading this, you might be thinking: "Why would anyone consent? I would certainly never consent! I'm not that stupid!"

Why Do So Many People Consent to Police Searches?

But thousands of people a year throughout Canada (and in other countries with similar constitutional protections against unreasonable search and seizure, like the United States) do just that, and consent to searches where the police have no grounds to search. Some even carefully read those forms, do understand them, but sign anyway. Why?

It seems to be something to do with people feeling that: (1) they have no choice, (2) they have nothing to hide, or (3) even though they do have something to hide, the police won't find it, and this is the best way to get rid of them. These "yes" men and women are wrong on every count. 

First, you do have a choice if the police ask if you mind if they do a search. Be it a search of your vehicle, a search of your house or office, a search of a bag you are carrying, or a search of your person, just say that you do mind. Be polite about it. You can even ask whether the police will go ahead without your consent, because they believe they have some kind of other authority?

The Police May Already Have Other Authority to Search Anyway

Sometimes the police will already have - or have sufficient grounds to obtain - a search warrant to search your vehicle, house or office. If they do, then your consent is irrelevant. Don't try to stop the police from executing a warrant (or otherwise conducting any kind of search), unless you want to be charged with obstructing justice. But they must get the warrant from a judge or justice before conducting a search, or have some other kind of lawful power to search without consent. 

Sometimes the police will already have grounds and powers to search incident to arrest without a warrant. Again, if they do then your consent is irrelevant. But they must have first arrested you, told you what you are being charged with (unless it is an emergency), and not exceed the limits of the search incident to arrest power (usually limited to your person and what you are carrying - though occasionally it might extend to a vehicle you are in; it will never extend to your whole house or office). 

Sometimes the police will be able to invoke exigent circumstances to search without a warrant or arrest if there is an emergency situation, where the search just can't wait. Again, your consent will be irrelevant. Though be aware that true exigent circumstances searches are very rare, since the police do have investigative detention powers to hold you, your vehicle, or even your home or office for a reasonable period of time pending the arrival of a search warrant. 

All Consent Searches are Vulnerable to Challenge

If my police powers to search explanation is starting to sound a bit complicated, that's because it is complicated. Lawyers and judges disagree frequently about when particular powers exist, and well intentioned police officers can certainly get it wrong if the judges are having trouble getting it right. Though throughout the training I still do for police officers on search and seizure, the best mantra for those officers to repeat is: "if in doubt, get a warrant." I especially teach my police students: never rely on consent, it's too uncertain of an authority, with too unpredictable later results. 

If you are the subject of a police search - by consent or otherwise - and something incriminating is found that leads to you being charged, my recommendation is to consult a lawyer about your prospects for challenging the search in court. I'm not saying you are guaranteed success on such a challenge, but in my experience most people never challenge police searches. Sometimes a search will be completely legal, and sometimes it won't be. But only by involving a lawyer will you be able to find out which category your search falls into.

No One Would Believe This In a Movie Script

While serving as a Federal Crown Prosecutor I once was involved in a case where a BMW speeding along the TransCanada Highway was stopped by police for a traffic violation. The stopping officer only had grounds for a traffic violation, but his suspicions were quite appropriately aroused.

The occupant of the fancy car seemed overly polite when stopped. And overly nervous, constantly shifting in his seat, eyes darting about, hands tightly gripping the steering wheel. Plus the vehicle had out-of-province plates, and the conscientious officer remembered from his training that fast food wrappers strewn about a car might be a sign that the occupants were driving non-stop over a great distance for illicit purposes (yes, there is a course on that, I've seen the materials; it might motivate all of us to tidy our vehicles). 

So, after giving him a speeding ticket, the officer asked the driver if he minded if the officer took a quick look in the trunk of the car. This officer was very well trained, and made it clear to the driver that he didn't need to consent, that he was free to go, and that anything he found could be used against the driver in court. The officer even pulled out a consent form for the driver to sign. Now what the officer definitely didn't know in advance was that the driver had 10 kilos of coke and $100,000 in cash in the trunk. And what do you think that driver did? He signed, and popped the trunk!

Gordon S. Campbell practices criminal defence law throughout Ontario, with a focus on search and seizure cases which he has appeared on up to the level of the Supreme Court of Canada. He also trains law enforcement agencies throughout Canada on search warrant & wiretap drafting, and is author of The Investigator's Legal Handbook series of books.