Collateral Consequences, Disadvantage, and Criminal Defence Work

Professional rules of conduct require Canadian defence lawyers to inform their clients about potential collateral consequences of criminal convictions. Drawing from qualitative interviews with 74 criminal defence lawyers, we explore issues related to both client and lawyer disadvantage and the consideration of collateral consequences in criminal courts. More specifically, we document and analyze how the “duty to inform” is experienced and negotiated by duty counsel lawyers and private counsel taking on indigent defence. We engage with scholarship on the reproduction of social inequality via criminal justice, the unique organizational realities of criminal defence, and broader questions of access to justice. We show when and how lawyers and their clients face additional burdens, which shape how collateral consequences are (a) identified, (b) brought up in court, and (c) received by prosecutors/judges. Our work highlights that challenges posed by collateral consequences cannot be overcome via criminal defence efforts alone and that current practices further exacerbate inequalities within and beyond criminal courts.