THE ADVOCATE 839
VOL. 78 PART 6 NOVEMBER 2020
One often hears, sprinkled throughout lectures and conversations even
today, that “crime doesn’t pay” (for lawyers, anyway), and one feels at times
the implicit disapprobation of colleagues practising in other fields. Notwithstanding
the advent of legal aid systems, today the income gap between
those practising in criminal law and those practising in other fields is considerable,
with the disparity in hourly rates between criminal matters and
civil matters approaching around a 1:3 or 1:4 ratio. As well, criminal
lawyers (and maybe some family lawyers) might be considered the ultimate
pro bono (or low bono) counsel, taking calls around the clock, not
driven by entering those precious tenths of hours on PCLaw or the like.
Further, there is still that niggling perception that criminal defence
lawyers are linked with their clients. It is one thing to deflect (and attempt
to explain) inquiries from unlearned friends and family who, as any criminal
defence lawyer will attest, often wish to know how one can represent
persons charged with doing terrible things. It is quite another to discern that
same implicit sentiment from colleagues, and sometimes even judges.
These perceptions have caused B.C.’s criminal defence bar to develop a
unique collegiality and camaraderie. It is one of the few areas of law that
appears to espouse the concept of adversaries “striving mightily” against
each other but “eating and drinking as friends”.3 Though counterintuitive,
the practice of criminal law seems, in my experience, in many ways the
opposite of civil law, which is anything but civil. But this alters neither perceptions
nor the reality of remuneration. I think Martin would agree.
Criminal defence work is a tough business. It is not for the timid. I recall
taking a shellacking in the Court of Appeal in the late ’90s, walking out of
the courthouse grousing about how the court could not see the inexorable
force of my position. I ran into Rick Peck, Q.C., who punched me on the
shoulder and said, “Buck up, it’s necessary to build some scar tissue to
become good counsel.”4
Getting kicked in the teeth, dusting oneself off and going back into the
arena with new scar tissue and in the face of often overwhelming odds are
the stock and trade of criminal defence counsel. In what other part of the
profession does one face an adversarial situation where the opponent has
already determined that there is a “substantial likelihood of conviction” (the
laudable standard espoused by our provincial prosecution service)?
Convictions are supposed to ensue if cases are evaluated correctly, and
our system requires that criminal defence lawyers wade into the arena to
test that evaluation. Sometimes it works out the other way, and sometimes
no matter how much effort is expended, the task is simply too Sisyphean.
Nonetheless, the task requires blood and sweat in every instance, from the
simple case to the complex.