“The first thing we do, let’s kill all the lawyers.”

These famous words from the English poet Shakespeare are often quoted by journalists and other social commentators to reflect perceived disdain for the legal profession. For example, such a commentator might cite that quote during his speech, glance at the audience with an air of sophistication, and pause for what he expects will be laughter and applause.  From his smug manner when delivering this “joke”, the speaker might give the impression he believes he is first one to have discovered Shakespeare’s writings.

No group of lawyers is criticized more vigorously by such commentators than criminal defence attorneys. Defence lawyers are portrayed as a dishonest breed representing clients, all of whom they know to be guilty, using technicalities to get them off, while often putting the victim on trial.  Or so the story goes.  (After criminal defence lawyers, lawyers defending big corporations against lawsuits win the silver medal of derision, followed by divorce lawyers who many commentators feel deserve the bronze.)

Of course, there have been instances of misconduct among some lawyers, but the percentage of Canadian attorneys engaged in malfeasance is very small.  No system is perfect.  However in most instances, if a person has problems dealing with the authorities or with his employer, or even a dispute with a neighbour, he or she is likely to contact a lawyer for help.  That is because lawyers tend to stand up for the rights of their clients, to do so fearlessly, and in the vast majority of instances to do so in a fair a reasonable manner, using arguments, not force.

Canada and the Rule of Law

What distinguishes Canada from many other countries is that it is governed by the “rule of law”. Simply put, what this concept means is that the law binds not only individual citizens, but also the various levels of government and their agents, including the police and security forces. To continue living in a free society, the law as clarified and decided upon by our courts must be the supreme authority, not some vague notion of the “will of the people” or religious precepts or the dictates of a particular leader or political party.

When some commentators denounce lawyers for using tricks or technicalities, they are really showcasing their own ignorance.  These so-called “technicalities” are actually legal principles resulting from laws enacted by the legislature as interpreted and applied by the courts.  Thus the rule of law has special importance in areas touching upon the individual’s interaction with government.

For example, in the area of  legal practice known as administrative law, for a democratic country like Canada, the interests of an individual can be protected by applying to a court to review the action or decision taken by the government official.  (We note that such court applications would be unknown in many non-democratic countries.)

To give a couple of examples, a decision might be thrown out by the court if the government body concerned did not follow its own rules in making its decision, or if the government was not fair because it did not consider fully the submissions made by the individual citizen. This latter example would involve arguments concerning natural justice or the legal obligation to “hear the other side” – audi alteram partem, as this principle is stated in Latin.

Such judicial review proceedings are a type of court procedure which can be used to contest negative decisions in Canadian Immigration or Citizenship matters.  Such applications are a specialty of the Fogarty Law Firm.

Regarding criminal accusations in Canada, the rule of law is crucial because it means the state must respect basic rules and procedures.  Here are three of the main implications:

  1. A person is presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial court.  Note the general requirement that trials be open to any member of the public.  Secret trials and democracy do not live very well one with another.  The same goes for ensuring that judges are appointed with security for their employment so they may consider a case neutrally and not be fearful of reprisals by government or other officials for making decisions unfavourable to the authorities.
  2. A person has the right not to incriminate him/herself, whether when arrested or at trial.  As a general rule, a person suspected or accused of wrongdoing is not to be required to provide information or statements against his own interests.
  3. A person has the right to life, liberty and security of the person, including not being subjected to arbitrary detention, imprisonment, search of his/her person or residence, or seizure of his/her property.  An individual must not have to fear invasion of his home or intimidation against his person by police or security officers unless there is a valid reason.

Muzzling lawyers muzzles freedom

If you look at recent history, it is evident that among the first things a dictator will seek is to muzzle the legal community.  When Hitler took power in Nazi Germany during the 1930s, it was not long before he imposed strict controls over the legal profession.  Jewish persons were forbidden to practice law.  Other so-called “undesirables” were rooted out of the profession as well.   Association with the Nazi party became a prerequisite.  Intimidation and brute force were the order of the day.  The system became so distorted that judges were called upon to decide legal trials taking into account what the “Fuhrer” Hitler himself would want the outcome of a case to be, rather than applying legal principles.

Shakespeare’s quote about lawyers explained

By the way, the Shakespeare quote above is from Henry VI, Part 2, written around 1591. Certain conspirators were discussing the steps needed to take over the state. If the lawyers were eliminated, they reasoned, there would be no obstacles to imposing a new regime based on their whims and personal advantage, rather than having to deal with obstacles that could be imposed on their new regime by the law and lawyers.  So this is the real reason why they wanted lawyers eliminated.  The rule of law would be swept aside.  You can look it up.

Lawyers:  an essential profession for a free country

These great principles of freedom discussed above should be cherished by everyone.  The rule of law is not a bunch of mere technicalities. These principles have developed slowly and carefully over the years, and are necessary to protect everyone regardless of whether or not the person charged is ultimately shown to be guilty or himself a victim of false accusations. They have been recognized in many rights declarations in various countries, and by the United Nations itself.  It is the lawyer’s job to ensure these principles are upheld, even if to do so might be controversial or unpopular in a particular case.  Remember, one day even you might face false charges or other problems with government authorities.  Who would you turn to for help, if not a lawyer?

The fact that Canada has such a strong tradition of respecting the rule of law and an independent, open system of criminal justice is one of the reasons this great country is chosen as a new home by more than 250,000 people each and every year.  And one of the reasons Canada is viewed as a free and democratic country the world over is the ongoing work undertaken by our lawyers, who actively participate in and defend the rule of law.