In Defence of “No Concessions”

By: Diana Lumba

Concessions: it’s a topic that seems to incite particularly strong reactions among defence counsel, Crowns, and judges. Some take the position that defence counsel should never make concessions. Others believe defence counsel should concede issues liberally. Unsurprisingly, the latter position appears to be quite popular among Crowns. What may be slightly more surprising is that it is also advocated by some judges, who, during judicial pretrials where defence counsel utter the dreaded words “no concessions”, make their displeasure known through heavy sighs, eye-rolling, and knowing glances with the Crown. Confronted with such disapproval, more junior defence counsel may understandably feel discouraged and succumb to the pressure to agree to concessions they would not otherwise have made.

This is unfortunate. There is good reason for defence counsel to not make concessions. That is not to say they should never be made. Despite what they may say, even the most zealous defence counsel make concessions. There is a time and place for them. Concessions may be more appropriate at the preliminary inquiry stage. At trial, there may be situations were conceding an issue actually benefits the accused. For example, in an aggravated assault trial where the victim was stabbed repeatedly, it makes perfect sense to concede the element of wounding to avoid the jury being bombarded with the gory medical details of the victim’s injuries.

Generally speaking, however, it is not in an accused’s interest for their lawyer to make concessions that make the prosecutor’s job easier. Our criminal justice system is adversarial. The Crown bears the burden of proving guilt beyond a reasonable doubt. How does lightening that prosecutorial burden benefit the accused? It is telling that more than one Crown has admitted that if they were defence counsel, they would not make concessions.

Consider the professional and ethical obligations of defence counsel under the Rules of Professional Conduct. Rule 5.1-1 states:

When acting as an advocate, a lawyer shall represent the client resolutely and honourably within the limits of the law while treating the tribunal with candour, fairness, courtesy, and respect.

The following passage in the Commentary section is instructive:

[9] Duty as Defence Counsel – When defending an accused person, a lawyer’s duty is to protect the client as far as possible from being convicted, except by a tribunal of competent jurisdiction and upon legal evidence sufficient to support a conviction for the offence with which the client is charged. Accordingly, and notwithstanding the lawyer’s private opinion on credibility or the merits, a lawyer may properly rely on any evidence or defences, including so-called technicalities, not known to be false or fraudulent [emphasis added].

The duty of defence counsel could not be stated more clearly: with few exceptions, “protect the client as far as possible from being convicted”. Criminal trials are unpredictable. Crowns make mistakes. Witnesses don’t show. Paperwork goes missing. If there is even a slight possibility of winning on a “so-called technicality”, why give it away?

It has been suggested that counsel have a duty to agree to “reasonable” concessions, but that is not what the Rules say:

7.2-1.1 A lawyer shall agree to reasonable requests concerning trial dates, adjournments, the waiver of procedural formalities, and similar matters that do not prejudice the rights of the client [emphasis added].

Apart from the Rules, choosing the strategy that maximizes an accused’s chance of winning is protected under the right to full answer and defence enshrined in s. 7 of the Charter.

From the Crown’s perspective, there is no denying that “no concessions” is inconvenient to say the least. At a minimum, it likely means more trial preparation. The benefit to the Crown is weaknesses in the case will be identified and addressed. It is true that many Crown offices are understaffed and as a result, time for trial preparation is limited. But this is not the fault of defence counsel or the accused, so any frustration from a lack of resources should be directed at the government instead.

Similarly, from the perspective of the judiciary, a trial with no or few concessions may be longer and more tedious. But it is within an accused’s constitutionally protected right and defence counsel’s ethical and professional obligation to adopt such a strategy, and neither the accused nor defence counsel should ever be punished for it.

In the post-Jordan era, all actors in the criminal justice system – judges, Crowns, and defence counsel – are exhorted to work together to ensure accused are tried within a reasonable time. It is true that a trial with no or few concessions may take longer, but as the Supreme Court of Canada made crystal clear in R. v. Cody, at para. 34: “Defence counsel may still pursue all available substantive and procedural means to defend their clients.” Again, any frustration about the delay which may arise from an accused’s proper exercise of his or her right to full answer and defence should be aimed at the government, not the accused or defence counsel.

It is understandable that some defence counsel are wary of not making concessions because they fear alienating the Crown or judge. But so long as defence counsel remain courteous and civil, Crowns and judges should respond in kind. Indeed, they may even develop a grudging respect for defence counsel, especially if the strategy results in the occasional win. Even if defence counsel is unfairly censured, they can take solace in having fulfilled their duty to give their client every chance to win. Our adversarial system demands no less.