Criminal Code of Canada - section 2 - Definition of counsel

section 2

INTRODUCTION AND BRIEF DESCRIPTION

This section defines the term counsel as a barrister or solicitor authorized by provincial law for legal proceedings.

SECTION WORDING

2. In this Act, "counsel" means a barrister or solicitor, in respect of the matters or things that barristers and solicitors, respectively, are authorized by the law of a province to do or perform in relation to legal proceedings;

EXPLANATION

The Criminal Code of Canada is a federal statute that governs criminal law in Canada. Section 2 of the Criminal Code defines the term "counsel." The term is used throughout the Criminal Code and refers to a barrister or solicitor who is authorized to perform legal proceedings in a province. The term "barrister" refers to a legal professional who is authorized to represent clients in court and provide legal advice on matters related to the law. On the other hand, a "solicitor" is a legal professional who is authorized to provide legal advice on non-contentious matters, such as drawing up legal documents, contracts, and wills. In the context of the Criminal Code of Canada, "counsel" plays an essential role in ensuring the protection of the rights of individuals accused of committing criminal offenses. If a person is accused of committing an offense, they have the right to legal representation. This means that they can seek the services of a barrister or solicitor who is authorized to practice law in their respective province. Counsel is instrumental in ensuring that the rights of the accused are not violated, and that they receive a fair trial. They do this by questioning the evidence presented by the prosecution and challenging any legal arguments that may be put forward. They also help the accused to understand their legal rights and responsibilities, and guide them through the legal process. In conclusion, the term "counsel" is a critical aspect of the Criminal Code of Canada. It ensures that the accused receive legal representation from a qualified legal professional who is authorized to practice law in their respective province. It is a fundamental aspect of ensuring a fair and just legal process.

COMMENTARY

Section 2 of the Criminal Code of Canada offers a clear definition of the term "counsel" as it relates to the legal profession within the country. In essence, the definition stipulates that "counsel" means someone with the authority to practice as a barrister or solicitor in a given province, and who is thus authorized to perform certain legal tasks in relation to court proceedings. This includes tasks such as advocating on behalf of a client during a trial, drafting legal documentation, and providing legal advice. There are several important implications of this definition to be considered. First and foremost, it speaks to the complex regulatory framework that exists within the Canadian legal system. While the Criminal Code is a federal statute, it defers to the provincial laws that govern the legal profession in order to define terms like "counsel". This reflects the intricacies of Canada's federal system of government, in which provinces have significant powers to regulate their own affairs - including their legal systems. At the same time, this definition has important practical implications for anyone practicing law within Canada. In order to represent clients in a court of law, someone must have the appropriate legal credentials and be recognized by the local law society. This is a critical safeguard to ensure that only qualified individuals are providing legal counsel and representation on behalf of clients. It also underscores the professionalism and ethical responsibility that lawyers are expected to uphold as part of their practice. Overall, section 2 of the Criminal Code of Canada is a foundational element of the country's legal system. By providing a clear definition of what it means to be "counsel", this section helps to establish the boundaries and expectations of the legal profession in Canada. It is a reflection of the importance that Canada places on professionalism, expertise, and responsibility when it comes to matters of the law. Ultimately, this definition helps to ensure that the Canadian legal system is fair, robust, and effective at providing justice to all who seek it.

STRATEGY

Section 2 of the Criminal Code of Canada provides the definition of the term "counsel". This section is significantly important in criminal proceedings as it determines who can represent an accused individual during legal proceedings. There are various strategic considerations that should be taken into account when dealing with this section of the Criminal Code of Canada. These considerations involve the selection of a lawyer who can represent the accused individual competently and the approach to be used by the defence counsel in criminal proceedings. One of the primary strategic considerations when dealing with this section of the Criminal Code of Canada is selecting the right lawyer who can provide the best representation for the accused. The defence counsel should have a thorough understanding of the law as well as the local legal practices to ensure that they can provide the accused with the most effective representation possible. In selecting a lawyer, the accused must consider their experience, reputation, and knowledge of the local justice system. The lawyer should be licensed to practice law in the province in which the charges are being brought and have experience dealing with similar criminal cases. Another strategic consideration is the approach to be used by the defence counsel during criminal proceedings. This involves the development of a legal strategy that is tailored to meet the specific needs of the accused and the nature of the case. The defence counsel will need to have a comprehensive understanding of the evidence against the accused and the strengths and weaknesses of the prosecution's case. Based on this information, the defence counsel will have to decide on the best approach to be used in defending the accused, including whether to take an aggressive or conciliatory approach. In addition, the defence counsel should carefully consider how the prosecution's evidence can be challenged. This involves looking for inconsistencies or contradictions in the prosecution's case, as well as finding loopholes in the law that could work in favour of the accused. For example, if the prosecution has failed to provide sufficient evidence to prove guilt beyond a reasonable doubt, the defence counsel can challenge the validity of the charges or seek to have them dropped altogether. One of the most effective strategies that defence counsel can employ when dealing with section 2 of the Criminal Code of Canada is to build a strong defence team. This involves engaging the services of other legal professionals, such as criminal investigators or forensic experts, to strengthen the defence case and to provide objective insights into the evidence gathered against the accused. Defence counsel should work with these professionals to develop a comprehensive strategy that can convincingly refute the allegations made by the prosecution. In conclusion, there are many strategic considerations to take into account when dealing with section 2 of the Criminal Code of Canada. From selecting a skilled lawyer to building a strong defence team, the accused must take decisive action to ensure that they are adequately represented and defended in criminal proceedings. By developing a comprehensive and tailored legal strategy, the defence counsel can effectively challenge the prosecution's case and ensure that the accused receives a fair trial.

QUESTIONS AND ANSWERS

If I am charged with a criminal offence, do I need to have a lawyer?

There is no specific requiring in the Criminal Code for an accused to have counsel. However, there are limitations as to what a self-represented accused will be permitted to do. For example, if a person is charged with a domestic assault, sexual assault or other charge where the Court considers the witness to be "vulnerable", the accused will not be permitted to cross-examine that witness. Thus, counsel would be appointed pursuant to section 486. Moreover, there will be limitations on the dissemination of disclosure as a result of the Martin Report, which requires that disclosure be kept in the secure possession of counsel. Thus, while there is no direct mandate for an accused to have counsel, it is highly advisable when charged with a criminal offence to retain a lawyer who practices in criminal law to assist. Most jurisdictions have a Legal Aid plan that can assist in times of impecuniosity. Alternatively, many lawyers offer payment plans. Moreover, in rare instances, funding applications known as Rowbotham applications can be conducted, which forces to state to assist. Rowbotham cases are, however, the exception to the rule, and require full disclosure of the accused's financial situation.

RELATED CASES

R. v. Rowbotham

A case from the Ontario Court of Appeal in which the province was directed to fund an accused's defence. This case became the basis of many further funding applications, and has been cited in hundreds of further decisions on the topic of counsel funding.

Ontario v. Criminal Lawyers Association of Ontario

A case from the Supreme Court of Canada which determined how the fees of appointed counsel can be determined in the event of an impecunious client.