Courtroom civility, though important, must never come at the expense of mounting a vigorous defence, says Toronto criminal lawyer and civil litigator Laurelly Dale.
“If you need to make the decision between civility and defending your client, the defence of your client will win because you need to make sure they have a fair trial,” says Dale, principal of Dale Law Professional Corporation.
The defence bar breathed a sigh of relief last summer when the Supreme Court of Canada (SCC) overturned a Law Society of Ontario Appeal Panel finding of professional misconduct against Toronto securities lawyer Joseph Groia for allegedly being uncivil during a trial, she tells AdvocateDaily.com.
Former criminal lawyer, Justice Michael Moldaver, wrote the decision for the majority, finding that when there’s a conflict between civility and the best interests of your client, the duty to defend is paramount, according to the SCC judgment.
“Criminal defence lawyers are the last line of defence before someone’s liberty is going to be taken away,” Dale says. “So, it’s our duty to put up a zealous and unfettered fight without fear of reprisal from regulatory bodies because the prosecutor is offended by your tone in court.”
Some people were worried the SCC decision would result in increased rude courtroom behaviour by defence lawyers, but that has not been the case, she says.
“The signal that it sends to counsel is that we must continue doing our jobs. We can defend our client with such vigour that we have this ability to criticize how the prosecutor handles their case,” Dale says.
Such criticism is sometimes necessary because prosecutors wield enormous power as agents of the state, and must be held to account, she adds.
The system depends on civility to make sure matters move efficiently, she says.
“The real fight and fierce advocacy comes out when we have these heated trials,” Dale says. “If you can’t resolve your matter, then proceed to trial and throw your gloves down and battle with one another. That’s what the adversarial system is for.”
Originally published in the Advocate Daily February 5th, 2019: https://www.advocatedaily.com/profile/laurelly-dale-duty-to-defend-your-client-is-paramount-dale.html