The role of counsel in legal proceedings is important if a litigant or immigration appellant wants to present their case the best way possible. When I started my legal practice in Canada, which happened to involve civil litigation, criminal courts and immigration tribunals, I was startled by the different tactics that my colleagues, including paralegals and lawyers, used when representing their clients. Some of them were civil and courteous, a trend I identified specifically in criminal and immigration proceedings, while others were arrogant and rude, particularly in civil litigation. I remember one paralegal in a small claims court matter, who was opposing counsel, who attacked me on my English grammar, despite it being correct. I realized that the attack was her tool to disarm me, to confuse me with my client’s claim against her client and a way in which she hoped to intimidate me so that she will win the case. I admit, she caught me off guard, but I composed myself very quickly and redirected her attention to the matter at hand. Why do I remember that instance? Because in my view, the best advocacy was to argue the case, and not to use cheap tactics, to distract and obscure. Later, I witnessed quite a number of counsel who used a similar approach to problems with their adversaries: they were talking rudely, throwing papers around, not answering questions of the opposite counsel, and behaving to the likes of “leave me alone”. Maybe, all of those counsel just misunderstood the message of Lord Brougham, in Queen Caroline’s case when he said (acting as counsel):
“… and advocate, by the sacred duty which he owes his client, knows in the discharge of that office but one person in the world – [the] client and no other…Nay, separating even the duties of a patriot from those of an advocate, and casting them if need be to the wind, he must go on reckless of the consequences, if his fate it should unhappily be to involve his country in confusion for his client’s protection”
While counsel has an obligation to fight for their clients, in my opinion, it is important to hold yourself in civilized manner. One of my college buddies, a brilliant paralegal, when acting as counsel in a very complex appeal case, presented his opening statement to the judge in the calmest way possible,- he even spoke in a very soft voice. Because of his calm and composed manner, the court was attentively listening to his arguments and, as a result of his professionally crafted arguments, he won his case.
The role of counsel in legal proceedings in general is to act in the best interests of their clients, and present the cases the best way possible, to collect all evidence, to prepare witnesses and speak on behalf of clients in courts and tribunals. The most difficult role is to not to volunteer information that could be harmful to your client’s case. It is difficult to put a line between unfavorable information and a lie your client wants to present as truth. A counsel will be misleading the court if they get their clients to present false information. It applies however only to instances where the counsel possesses an absolute knowledge that the information is false. In most cases, a counsel does not know about the client’s facts of their cases. It is OK to allow your client to present their case, even though counsel has doubt in the veracity of their story, but it is forbidden to allow the lie to be told to court, if a counsel was told by the client that they intend to lie.
The role of the counsel who acts as prosecution is different. The prosecutor must not prove that the accused is guilty, they have a duty to present facts as they are and be focused only on preserving justice. The same applies to a Minister’s counsel at immigration proceedings. Neither the prosecutor in a criminal proceeding nor the Minister’s Counsel in immigration can hide any evidence in their possession and not disclose it to the defence counsel prior to a trial or a hearing. Some evidence can be hidden from immigration counsel, but only if it cannot be relied upon at the hearing. In some instances related to security of the country, the evidence is withheld, but strictly speaking it could not be directly used against the person concerned.
In conclusion, everyone can be their own representative, if they act for themselves, however if you choose to use a legal counsel (a lawyer, paralegal, or immigration counsel) you should conduct thorough research on the quality of that counsel. You should assess their readiness to fight for you and the quality of education and practical experience.
Here are some links to visit the Immigration and Refugee Protection Board, Criminal Code of Canada
