Top 5 Criminal Defence Myths to Avoid: A Barrister Gives You the Inside Scoop on Saving 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 choose, 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 you 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 disbursements?

• 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 field. On appeal, according to Court of Appeal for Ontario statistics 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 lessen 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.