Defence counsel
The Law Society of Alberta
Common Questions


The provincial Minister of Justice has responsibility for most proceedings under the Criminal Code of Canada, the Youth Criminal Justice Act and Provincial Statutes. The federal Justice Minister is responsible for criminal proceedings under Federal Statutes and for civil proceedings under federal laws. This division means that the majority of prosecutions in Alberta, as well as in the rest of the country, are handled by provincial prosecutors.

A Crown prosecutor is a lawyer who is authorized to represent the Crown (i.e. the state) before all courts in the prosecution of offences.

The power to lay an information (i.e. a charge) is found in the Criminal Code of Canada. The police have no particular power to lay a charge, but rather the same power as any other individual. Most charges in Alberta are, however, laid by the police and few matters are laid by ordinary citizens. All matters are reviewed by Crown prosecutors before they proceed.

It is common practice for the police to approach a Crown prosecutor for legal advice during the course of an investigation with respect to drafting a charge, obtaining wiretaps or search warrants, and other pre-charge issues. While police and other enforcement agencies investigate wrongdoing, it is ultimately the Crown prosecutor who decides what charges will be prosecuted in court and who conducts the prosecution. In deciding what charges will proceed, the Crown prosecutor must consider whether or not, based on the evidence, there is a reasonable likelihood of conviction, and whether or not prosecution is in the public interest.

Other responsibilities of the Crown prosecutor include dealing with defence counsel on disclosure and issue resolution; interviewing victims and witnesses; general case preparation; and conducting arraignments, preliminary inquiries, trials and sentencing hearings.

According to the Supreme Court of Canada, the role of the prosecutor within the justice system is:

"It cannot be overemphasized that the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength, but it must also be done fairly. The role of prosecutor eludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings. The achievement of these ends is our endeavour, these ideals our aspiration. To them we bring, imperfect as our own human frailty dictates, our intellects, skills and knowledge, an understanding of our fellow man, a compassion for the weakness of the wrongdoer, and a sympathy for his victim, a dignity, a courtesy, a fairness, respect for the law, and a fearless courage for what is right – but above all – integrity. This is our career."

- Boucher v. R. [1955] S.C.R. 16 at 23

The prosecutor is not the lawyer for the police or for victims or complainants. The prosecutor is the representative of the "state".

Alberta Justice is committed to demonstrating leadership in contributing to the well-being and self-reliance of Albertans from all racial backgrounds. See: Canadian Bar Association Racial Equality Resolutions.

Defence counsel

People who are arrested or detained have a constitutional right to counsel.

Defence counsel usually appear after charges have been laid and make court appearances with the individual charged. The Canadian Charter of Rights and Freedoms allows any individual who is detained as part of an investigation to immediately contact counsel and seek legal advice before being charged.

The right to counsel protects the right of accused people to remain silent and not incriminate themselves, the right to be secure against unreasonable search and seizure, the right to make full answer and defence, and the right to a fair trial. The right to counsel is the means by which the innocent are protected from wrongful conviction.

Defence counsel ensure that:

  • full disclosure is provided by the Crown
  • all evidence bearing on the accused's case is disclosed or produced
  • all legal issues bearing on the accused's case are fully explored and properly adjudicated
  • in particular, all evidence tendered by the Crown was collected in accordance with constitutional standards
  • all evidence supporting the accused's case is tendered at trial
  • Crown witnesses are cross-examined and weaknesses in the Crown case are explored
  • an accused is convicted only when the Crown has satisfied its constitutional burden of proving guilt beyond a reasonable doubt, on the basis of all of the evidence
  • where an accused is convicted, the penalty is proportionate to the gravity of the offence and to the degree of culpability of the accused
  • all options are explored for rehabilitation and reintegration of the accused, consistent with community safety; and
  • apparent errors made in trials are properly reviewed on appeal.

Defence counsel is professionally bound to advance all arguments ethically permitted on behalf of the accused, to ensure that the accused is convicted only if the state can properly establish guilt.

The Law Society of Alberta

The Legal Profession Act establishes the legal profession as a self-governing institution. The Law Society of Alberta:

  • determines who can practise law in Alberta. In order to practise law, an individual must be a member of the Law Society of Alberta, which sets its own admission requirements. A person must have a law degree and complete a period of articles (i.e. a one year period during which the individual works under the supervision of another lawyer and is required to complete bar admission exams).
  • is responsible for the discipline of lawyers. Complaints about lawyers must be directed to the Law Society, and not to government. The Law Society may then conduct an investigation, hold a disciplinary hearing, and impose a sanction. The ultimate sanction would be to disbar the lawyer, meaning the individual can no longer practise law in Alberta.
  • is responsible for the administration of the legal profession.
  • maintains a fund to compensate people who have suffered financially because of improper conduct by their lawyer. The Law Society also requires all lawyers who provide services to the public to have liability insurance.
  • does not control fees charged by lawyers. It does, however, provide a mediation service for individuals who have a dispute with their lawyer. Individuals who are not satisfied with their lawyer's account can go to the Court of Queen's Bench to have their account reviewed independently. This review is called "taxation." Taxation officers can, if circumstances warrant, reduce the amount of a lawyer's bill.

 Common Questions