Role of Defence Counsel in a Criminal Proceeding
Original article: April 9, 2019 | By Hans 'John' Kalina | Reviewed and updated October 6, 2026
A defence lawyer is neither a client’s unquestioning mouthpiece nor someone entitled to make every important choice for the client. Counsel provides independent professional advice, protects the client’s lawful interests and conducts the defence within the law. Effective representation requires both professional judgment and meaningful communication.
Independent advice and effective representation
Counsel reviews the evidence, investigates relevant issues, identifies available defences, advises on risks and prepares the case. The right to effective assistance of counsel and the distinction between tactical judgment and decisions requiring client instructions are discussed in R. v. G.D.B., 2000 SCC 22, particularly paragraphs 24–35. The case does not mean that counsel can disregard every instruction or avoid explaining important decisions.
The value of a lawyer’s work includes an independent assessment. A client may understandably want every possible argument raised, but weak or irrelevant arguments can distract from what matters. Counsel should explain which issues may help the defence, which are legally unavailable and which require further investigation.
Fundamental decisions requiring the client’s instructions
After advice about the evidence, law and consequences, the client must make important personal choices. These include:
Whether to plead guilty or maintain a not-guilty plea, and whether to authorize a proposed guilty-plea agreement.
Whether to testify at their own trial.
The choice of mode of trial or waiver of a jury right, where the law permits that choice.
Other consequential choices—such as requesting or waiving an available preliminary inquiry or advancing a not-criminally-responsible defence—require careful discussion of the applicable law and instructions. A preliminary inquiry is not available in every case. An NCR outcome is not an ordinary acquittal and may lead to continuing court or Review Board jurisdiction; its consequences must be understood. The legal allocation of a particular decision cannot be reduced to a single rule for every situation.
Counsel’s responsibility for strategy and courtroom conduct
Counsel generally makes professional decisions about how to examine witnesses, which legally available motions to pursue, how to present the evidence and how to focus submissions. Not every tactical step requires separate express approval. Nevertheless, important choices should be communicated, and counsel must obtain instructions when a decision belongs to the client or involves a right that cannot properly be waived without informed consent.
The Law Society of Ontario’s advocacy rules require resolute representation by lawful and honourable means, together with candour and respect for the court. Counsel cannot knowingly mislead the court, invent an alibi or present evidence known to be false. An admission made privately to counsel does not eliminate the Crown’s obligation to prove its case, but it can restrict how counsel may properly conduct the defence.
Advice about guilty pleas and proposed resolutions
Rules 5.1-7 and 5.1-8 in Chapter 5 of the professional conduct rules address discussions with the prosecutor and guilty-plea agreements. Counsel must investigate and advise about prospects, implications and possible consequences, including the court’s sentencing authority. The client must voluntarily admit the necessary elements and authorize the agreement. Section 606 of the Criminal Code sets the court’s conditions for accepting a guilty plea. The judge is not bound by a plea agreement.
Advice should address relevant consequences beyond the courtroom, including immigration status, professional licensing, employment and travel where they matter. No promise about a sentence or other outcome should replace a proper explanation of the risks and available choices.
Communication, confidence and a workable relationship
The Law Society’s rules on the lawyer–client relationship address competence, quality of service, confidentiality and related obligations. Give counsel a complete and accurate account, identify relevant documents and witnesses, and raise concerns promptly. Confidentiality and solicitor–client privilege are important protections, but their scope and lawful exceptions are not identical.
Ask what decisions are coming, what information is missing, what services the retainer covers and when the next update is expected. If you disagree with a recommendation, ask for the reasons and alternatives. A change of lawyer may have procedural and practical consequences; do not assume it cancels a court date or deadline.
Related guidance
For advice about your circumstances, contact our office. This article provides general information, not legal advice.