Chapter 3: Defence Counsel

QUALIFICATIONS

Lawyers posted to DDCS are fully qualified members in good standing of the bar of a province or territory. In order to promote their competence as defence counsel, DDCS lawyers undergo extensive training and continuing legal education.

As mentioned in Chapter 1, DDCS lawyers must observe not only their oaths as officers in the CF but also, like all lawyers, their oaths as barristers and solicitors of the bar of the province or territory to which they belong. This, in turn, requires them to comply with their law society's Code of Ethics or Rules of Professional Conduct.¹ In addition, all DDCS lawyers are members of the Canadian Bar Association and must adhere to its Code of Professional Conduct.

The role of DDCS lawyers as defence counsel at courts martial is identical to that of civilian defence counsel in the civilian criminal justice system: within the scope of law and ethics, to represent, to be an advocate for, and to provide the best possible defence for their clients. Thus, in keeping with the lawyers' rules of professional conduct² and with DDCS's statutory obligations, the first duty of DDCS counsel is to the client.

THE DUTY OF AN ADVOCATE

DDCS lawyers are, in every sense of the word, advocates for their clients: they support, speak in favour of and plead for their clients.³ The lawyer is the person who has been retained to articulate and support the client's position and cause. Defence counsel are duty bound to advance the client's case and cause in an independent, fearless and courageous manner. In this respect, all law societies demand that the lawyer “must represent the client resolutely, honourably and within the limits of the law.”⁴

However, DDCS lawyers, like all lawyers, are bound to adhere to the ethics or rules of professional conduct for their governing law society. The list of prohibited conduct is lengthy,⁵ and all lawyers are obliged by their governing law societies to comply. In the interest of brevity, however, the matter may be summed up by stating that lawyers are duty bound at all times to conduct themselves with honour and integrity⁶ and to refrain from engaging in any conduct or activity that could lead to legitimate reproach or criticism. The ethics and rules of professional conduct place certain limits upon the extent to which the lawyer may go in being an advocate for the client.

DDCS Directive 1

DDCS counsel shall be knowledgeable of and adhere to their law society's code or rules of professional conduct as well as the Canadian Bar Association Code of Professional Conduct. DDCS counsel who may be uncertain about a particular activity or course of conduct respecting any aspect of the discharge of their duties and responsibilities are to consult with the Director and their law society as required.

CONFLICT OF INTEREST⁷

As noted earlier, within the requirements of law and ethics, the DDCS lawyer's loyalty is to the client. Accordingly, the various codes or rules of professional conduct prohibit lawyers from advising or representing both sides of a dispute.⁸ A not uncommon challenge for defence counsel is to avoid situations that give rise to a conflict of interest. A conflict of interest is any situation

The challenge is often enhanced by the subtlety of some conflict situations. In this regard, it is important to note that today, especially for the CF, perception is frequently on the same footing as, if not more important than, reality.

DEFENCE COUNSEL AND THE CHAIN OF COMMAND

The chain of command is the single most pervasive feature of the CF, and DDCS lawyers are not exempt from the requirements of this ubiquitous feature of military life and organization. Within their own context, DDCS lawyers are under the immediate command and supervision of the DDCS. They are, moreover, under the general supervision of JAG.¹⁰ Finally, being subject to the Code of Service Discipline, they are required to follow the lawful orders of all superior officers.¹¹

In this latter vein, at the unit level, it is particularly evident that there is irreconcilable conflict between the interests of the chain of command and of defence counsel. The chain of command is responsible for the administration of discipline and, therefore, for the trial and punishment of alleged offenders. The defence counsel, on the other hand, is responsible for protecting and advancing the alleged offender's interests.

As noted earlier,¹² insofar as it is possible in a military organization, the statutory and regulatory framework for DDCS counsel detaches them from the chain of command and provides for them to discharge their duties and responsibilities in their capacities as legal advisor and defence counsel independent of the chain of command.¹³ As a result, in conducting their lawful and ethical activities in their capacity as defence counsel, DDCS lawyers are legally immune from any influence or authority purported to be exercised by the chain of command.

This does not mean that the DDCS lawyer can ignore or otherwise disregard the chain of command. The necessity of earning respect, and the courtesy and necessity of paying the proper respect, should never be overlooked. Moreover, DDCS lawyers are members of the CF and are not only subject to the provisions of the Code of Service Discipline but also are expected to observe the ethics of officership.

In addition, defence counsel should remember that the chain of command has an inherent responsibility respecting the welfare of the alleged offender as a serviceperson. Accordingly, the chain of command can provide useful assistance to defence counsel in numerous areas (e.g., procuring witnesses, obtaining specialized information, providing the necessary administrative services and support).

DDCS Directive 2

DDCS counsel shall at all times treat the chain of command with respect and in such a manner so as not to be perceived to be submissive to it or to otherwise cast doubt respecting their allegiance to the client.

Footnotes

¹ The practice of law is governed in each province or territory by law societies. Each law society has enacted rules of professional conduct (see the Law Society of Upper Canada Professional Conduct Handbook as well as the Canadian Bar Association Code of Professional Conduct). These rules act as a guide to the profession and are enforced through a disciplinary process that can, as a sanction for violation of the rules, suspend or revoke the lawyer's licence to practise law.

² Commentary 2 to Rule 10 of the Law Society of Upper Canada Professional Conduct Handbook states in part that “[T]he lawyer has a duty to his client fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his client's case and to endeavour to obtain for his client the benefit of any and every remedy and defence which is authorized by law.”

³ See the definition of "advocate" in the Concise Oxford Dictionary of Current English, 9^th edition (Oxford: Clarendon Press, 1995), p. 20.

⁴ Rule at Chapter IX of The Canadian Bar Association Code of Professional Conduct and Rule 10 of The Law Society of Upper Canada Professional Conduct Handbook.

⁵ Ibid.

⁶ Ibid.

⁷ A second aspect of conflict of interest is discussed in Chapter 5 of this Manual.

⁸ Chapter V of The Canadian Bar Association Code of Professional Conduct and Rule 5 of The Law Society of Upper Canada Professional Conduct Handbook.

⁹ The Law Society of Upper Canada Professional Conduct Handbook, Rule 5, Commentary 1.

¹⁰ NDA subs. 249.2(1).

¹¹ NDA s. 83 and QR&O art. 19.015.

¹² See "Independence and the Chain of Command" at Chapter 2.

¹³ Ibid.