One aspect of Defence counsel’s role is to be on guard against the use of language in the justice system that undermines an accused's constitutional rights.
Our constitutional rights provide the framework for our free and democratic society. The Canadian Charter of Rights and Freedoms ensures that law enforcement officials do not exercise unlimited authority in their efforts to investigate and prosecute alleged criminal behaviour. The constitution also provides an individual with choices when interacting with state officials in the context of a criminal investigation or responding to an allegation in court.
A fundamental principle in Canadian criminal law is that accused persons cannot be penalized for invoking a constitutional right.
Nor should the invocation of a constitutional right be characterized in a negative way in a criminal proceeding.
By way of example, an accused has a constitutional right to silence. Choosing to exercise that right during interactions with the police should not be characterized as ‘failing to cooperate’, nor should accused persons who choose not to testify at their trial be referred to as having ‘failed’ to testify. The use of such language suggests that there is a positive obligation on accused persons to assist the state in proving the allegation against them and serves to undermine both the right to silence and the presumption of innocence.
Describing the exercise of a constitutional right as a 'failure' conveys a message to the general public that the choice to exercise a constitutional right is improper – a misconception that is useful for state officials to draw upon in their efforts to persuade individuals to give up their rights at the time of arrest or detention.