Abstract

Professional rules of conduct require Canadian defence lawyers to inform their clients about the 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’ clients about collateral consequences 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.

INTRODUCTION

All over the world, the duty of lawyers to provide effective counsel has been accepted as a principle of fundamental justice.[1] Because the repercussions of a criminal conviction can far outweigh the immediate impacts of the sentence, scholars and professional associations have attempted to redress this injustice by arguing for inclusion of the duty to advise defendants of potential collateral consequences of a conviction within the scope of effective counsel (see e.g. Pinard [2004], who noted the need to account for them in the scope of holistic lawyering practices). Imposing upon lawyers the duty to detect and inform their clients about collateral consequences may seem reasonable, but the Canadian Bar Association (2023) has acknowledged that keeping up with the changing landscape of collateral consequences is a serious challenge. Recognizing the impossibly large scope of collateral consequences, scholars have argued “most busy defence lawyers cannot be expected to do the kind of research necessary to unearth and analyze all of the disparate statutory and regulatory consequences (…) that might conceivably place too high a price on a client’s giving up the right to go to trial” (Love, 2011, 115). Yet they are.

Drawing on qualitative interviews with 74 criminal defence lawyers who work with marginalized accused in Ontario and Québec, we document and analyze how the duty to inform clients about collateral consequences of criminal convictions is experienced and negotiated by Canadian lawyers. We add to the growing body of literature exploring the views and practices of courtroom actors concerning collateral consequences of convictions (Goulette et al., 2014; Goulette and Frank, 2018; Leasure et al., 2022). Our work here is novel in that it documents how duty-bound legal actors, doing different types of indigent defence work, describe if, when and how they are able or eager to invoke the legal relevance of collateral consequences. We engage with debates about how court culture and organizational contexts can contribute to how defence fight for their clients (Baćak, Lageson and Powell, 2024; Eisenstein and Jacob, 1977; Feeley 1979; Skolnick, 1967; Slee 2023). We also borrow from sociolegal literature about how criminal courts can reproduce class and racial inequality (Kohler-Hausmann’s 2018; Sylvestre et al., 2019; Clair 2020; Van Cleve 2022), and focus on how disadvantage can shape recognition of collateral consequences for marginalized accused.

In section 1, we survey literature about the importance of collateral consequences, the criminal justice system as an inequality-reproducing system, and the duty of defence lawyers to identify collateral consequences and inform their clients. In section 2, we describe methods. In sections 3 and 4, we present our analysis and discussion. We argue that imposition of such a duty does not take into consideration that criminal defence lawyers with different levels of privilege are unevenly equipped to represent defendants, who are also unequally disadvantaged. This shapes if and how collateral consequences considerations are documented and discussed with clients, instrumentalized in the legal process by defence, and recognized as relevant by prosecution and courts more generally. We show problems related to collateral consequences cannot be solved, by asking criminal defence lawyers to give them more consideration, or to give better guidance to their clients. This strategy can exacerbate inequalities within, and beyond, criminal courts.

I. LITERATURE REVIEW

The Notion of ‘Collateral Consequence’

Despite a lack of consensus on terminology[2], much has been written about the perpetually expanding collateral consequences - that is, the legal and social sanctions, restrictions and disabilities that flow from someone’s contact with the criminal justice system (Corda, Rovira and van’t Zand-Kurtovic, 2023). Collateral consequences can be formal or informal (Corda et al., 2023). The formal type includes sanctions or disabilities that attach to a criminal record by operation of a law or statute, whose application is triggered by the criminal conviction. For example, restrictions to the right to vote, changes of the immigration status or loss of social welfare benefits (Corda, 2018). Informal consequences do not flow directly from the application of any law but are rather imposed by private or non-state actors of their own accord. This includes the vast array of records-based social exclusions, like those related to difficulties with employment or housing discrimination (Uggen 2000; Uggen et al. 2014; Mulé and Yavinski 2006; CCLA 2014).

Whether they are formal or informal, collateral consequences of criminal convictions are often “not subordinate or secondary in their effects” (Kirk and Wakefield, 2018, p. 173), and can actually be more significant than formal punishments. They deprive those who suffer them from their most basic rights of membership in society (Chin, 2002), and some have even theorized that they produce a new form of restricted political individual membership, called ‘carceral citizenship’ (Miller and Stuart, 2017). Collateral consequences disproportionately impact racialized and marginalized individuals (Pager, 2003; Pinard, 2010; Alexander, 2011; Miller and Stuart, 2017), promoting instability by blocking access to good work, school, housing, and other important life opportunities. This is particularly worrying considering that these consequences can even arise from arrests and other non-conviction dispositions, so people can face record-related stigma even if they have never formally been found guilty (Uggen, et al.2014; Jain, 2015; Hannah-Moffat et al., 2022).

In recent decades, researchers have documented how various legal actors and other decision makers, negotiate issues related to collateral consequences. For example, studies have assessed how courts account for them at sentencing (Baglay, 2019; Berger 2020), and what tools exist to help identify them or limit their impact (Berson, 2013; Love, 2015). Others have studied how practitioners and professionals think about – or work around – collateral consequences (Ewald and Smith, 2008; Goulette et al., 2014; Goulette and Frank, 2018; Leasure et al. 2022). It is important to understand the work of legal actors, as they influence the process through which criminal records are generated, shaping eventual experiences of collateral consequences for their clients. Much of this literature exploring collateral consequences from the standpoint of courtroom actors (like defence) has relied on quantitative methods and focused on the US[3]. We pursue related questions, and add our own twist, focusing on how collateral consequences are considered and negotiated by various types of criminal defence lawyers working with marginalized accused in Canada.

Collateral Consequences and Effective Counsel

In R v. Wong, the Canadian Supreme Court declared a guilty plea could be vacated if the defendant entering it was not aware, at the time of entering it, of the collateral consequences of such a plea. The duty of making sure that defendants were properly informed was to fall on defence lawyer, for “[i]f an accused cannot count on his criminal defence lawyer to advise him as to the potential collateral consequences of a plea, whom can he look to?” (Criminal Lawyers’ Association of Ontario, Factum of the intervener R v. Wong). While R v. Wong only referred to collateral consequences related to the immigration status of the defendant (e.g. deportation), Canadian professional associations seem eager to extend such duty beyond the immigration realm. Rule 5.1-8 of the Rules of Professional Conduct of the Law Society of Ontario, for example, says lawyers have to advise their clients “of the implications and possible consequences of a guilty plea”, regardless of whether they relate to immigration, employment, family or other areas of the law. In Québec, the checklist published by the Bar to help prepare sentencing hearings urges lawyers to advise clients of the consequences of their contact with the criminal justice system - again, without limiting such duty to immigration consequences only[4].

Canadian courts and professional associations, therefore, agree criminal defence lawyers should bear the duty to inform their clients of the collateral consequences of a criminal conviction. This seems to mirror what criminal justice system actors have expressed in other jurisdictions. For example, Ewald and Smith (2008) found the vast majority of US judges they surveyed agreed with the statement “it is the defence lawyers’ responsibility to inform the client of possible collateral consequences”. Similarly, Goulette and Frank (2018) found 33% of the prosecutors and over 29% of the judges they surveyed in the US believed defence lawyers should be tasked with advising defendants about the collateral consequences of a conviction. Leasure et al (2022), who surveyed defence lawyers in South Carolina, also found “a large majority of defence attorneys felt that it was their responsibility to inform their clients of collateral consequences.” (81). Our work documents how defence lawyers navigate this responsibility in Canada, while simultaneously dealing with other problems related to social injustice and inequality in criminal courts.

Inequality and the Criminal Justice System

Courts not only reflect societal inequalities, but also reinforce and reproduce them, operating as an unjust institution (Clair and Woog, 2022; Van Cleve 2022). Kohler-Hausmann’s (2018) work, for instance, shows how criminal courts operate under managerial models focused on assessing, supervising, and controlling accused people, without facilitating trial. The court system then “functions to either reproduce class and racial inequality or manage the effects of class and racial inequality in a punitive fashion” (ibid 257). This happens in Canada too, in courts where little attention is paid to presumption of innocence, and where marginalized people are controlled and punished despite the absence of a trial (Sylvestre et al., 2019).

Criminal defence lawyers represent and fight for the rights of accused, many of whom have experienced discrimination, racism, violence and social exclusion. But despite working with and for defendants who are marginalized, defence lawyers can also contribute to inequality-producing dynamics (Van Cleve, 2016; Clair, 2020). Scholars have traditionally explained the lawyer’s contribution to the production of inequality through organizational theories that view the criminal justice system as an organisation in which all actors -including defence lawyers- cooperate to fulfill common organization goals (Blumberg, 1967; Skolnick, 1967). Because defence lawyers are part of the “courtroom workgroup” of actors, they work to expedite processes and resolve cases quickly (Eisenstein and Jacob, 1977). This can often involve overlooking, not disputing, and even amplifying, certain instances of injustice.

Inequality is also reproduced within the system because of unequal access to resources between private and public defence lawyers. All must meet the same professional and ethical obligations to clients (Mann, 2010), yet legal aid lawyers face constraints preventing them from fulfilling those obligations adequately (Lutes, 2020). Unless they choose to self-represent, disadvantaged defendants typically have their cases addressed by duty counsels who are underfunded, overloaded with work and pressured into plea bargain (Baćak, et al. 2024; Clair 2020; Feeley 1979; Slee 2023). Relatedly, Slee’s (2023) work shows “[public] defenders negotiate the resource-related burdens of their caseload and the relational burdens of dependence on more powerful work-group actors” (16) to actively engage in strategies rejecting traditional dynamics of inequality reproduction, even though “their low-power status restrained their ability to achieve desired outcomes” (11).

Canadian defence lawyers are duty-bound to identify and advise clients on the collateral consequences of a criminal conviction. Our research documents how this is experienced and put into practice by lawyers engaged in various types of indigent defence work. We consider both client and lawyer (dis)advantage, which we argue is crucial to understanding strategies used to navigate inequality in the courts and in society more broadly.

II. METHODS

Our article draws from a larger project about criminal defence lawyers who work with clients facing marginalization, often related to poverty, social exclusion, racism, housing precarity, homelessness, mental health issues and drug or alcohol use. The larger project data includes in-depth qualitative interviews (n=162) as well as field notes from observation in court, professional events and training sessions. 17 participants were interviewed a second time. Altogether, this allowed for a good amount of exposure (Small and Calarco 2022; 18). We conducted semi-structured interviews with defence lawyers who practice in urban, suburban and rural areas in Ontario and Québec. We included criminal defence lawyers who work in private practice doing indigent defence or pro bono work with disadvantaged accused, as well as full-time duty counsel lawyers[5]. We got access to participants through snowball methods, making use of both existing networks and direct recruitment strategies. We included equal proportions of private practice and legal aid lawyers, and our sample is diverse when it comes to gender, age and race. These lawyers have different levels of professional and personal privilege re: age, seniority, networks[6].

Interviews were semi structured, with questions focused on criminal defence work with disadvantaged defendants. Interviews lasted on average 110 minutes. They took place between 2018 and 2024, in person or by videoconference or telephone. They were conducted by the PI and by 3 research assistants. Interviews were recorded with consent, without financial compensation. Interview memos were written after each interview, and then again after coding. Thematic memos were also revisited regularly. This helped our research team maintain a structured approach that remained open to unexpected themes. For example, the topic of collateral consequences was not anticipated in the original interview guide. However, interviewees mentioned consideration of future marginalization, which led to discussing the legal relevance of collateral consequences. With ongoing memo writing, team discussions and revision of our tools, we were able to adapt and start asking about collateral consequences. Three members of the research team, PI included, organized the data using codebook style thematic analysis (Braun and Clark, 2021) with NVivo.  

In this article, we focus on participants who explicitly discussed collateral consequences (n=74). This group includes 30 men and 44 women, 50 practitioners from Ontario and 24 from Quebec: 62 in urban areas and 12 in rural or northern jurisdictions. It includes 26 defence lawyers working as duty counsel, 38 working a ‘mixed practice’[7], and 10 working in private practice doing occasional pro bono work with marginalized accused.  Self reporting on their identity, 22 of the 74 participants spoke of being racialized (not white North American/European). This group included defence lawyers in their first years of practice, others in practice since the mid-eighties, and everything in between. Table 1 summarizes participant characteristics[8]. For anonymity purposes, we use pseudonyms when referring to participants.

III. ANALYSIS

Our objective is to examine how criminal defence lawyers consider and negotiate collateral consequences in their work with marginalized clients. We present findings in three parts, focusing on: (1) criminal defence practice management and how inequality shapes identification of collateral consequences, (2) how inequality plays into the crafting of collateral consequence-related arguments, and (3) how reactions from prosecutors/judges can be influenced by both client and defence lawyer disadvantage.

a)    Inequality and Identification of Collateral Consequences

Lawyers we interviewed talked about their duty[9] to inform defendants of the collateral consequences of a conviction including, but not limited to, loss of housing, employment, family rights or immigration status[10]. For example, as Roger explains “If its a plea to impaired [driving], you have to let the court know you've let the client know their license is going to be suspended and their insurance is going to go up”. Despite not necessarily being specialized in other areas of the law, they are expected to flag those consequences to clients. Failure to do so, they told us, could amount to malpractice and could give rise to disciplinary and civil proceedings against them. But criminal defence lawyers must also abide by the rules of practice imposed on them by their insurance coverages and practice licenses, which require them not to give any advice outside the criminal law area. It can be tricky to navigate this apparent contradiction.

For some, fear of overlooking potential consequences leads them to taking measures to protect themselves against eventual malpractice claims. Interviewees reported various protection strategies, including using waivers or personally accompanying defendants to appointments with other specialized lawyers. Elizabeth, a private practice lawyer, explains: “I have an immigration lawyer on speed dial. I’ll never give advice myself. I'll make it clear: “I don't know what I'm talking about, here's the immigration lawyer's number. I'm not helping you until you prove to me you called him.” Mandating this consultation is how she manages the risk of potential malpractice claims, which we were told could arise from failure to identify collateral consequences. Some participants reported referring clients to other lawyers from their own firm, but that is not always an option. Professional experience, and professional networks can help lawyers navigate these conflicting requirements. Less experienced lawyers talked about not having the networks needed to consistently make those connections for their clients. Interviews suggest private lawyers, especially those with more experience, are better able to assess these issues and recruit help from colleagues.

As we examine next, timely and thorough identification of collateral consequences is also affected by time and resource constraints. Identifying relevant collateral conviction considerations is complicated by the fact that Canada does not have a National Inventory of Collateral Consequences of Conviction. Linda, an experienced private practice lawyer who works with legal aid clients on occasion, explained how this gap makes them feel: "We have an obligation to do this. But then again, it requires us to be very creative in how we do it, and it can be very challenging. […] The existing resources are feeling strapped and overwhelmed, and then there's no other institutional support. So, you're trying to figure it out." This same participant explained this pressure is heavier given how ineffective assistance can shape future legal outcomes. Imposing on defence lawyers the duty to inform clients about the collateral consequences of a conviction reveals a mismatch between expectations of good practice and the lawyers’ reality. And while all criminal defence lawyers bear this duty, they do not struggle equally.

Time is a resource lawyers do not enjoy equally. Committing hours to the detection of collateral consequences might be feasible for lawyers practicing in the private sector, but it can be almost impossible for legal aid lawyers, who reported struggling with this burden. Indeed, disadvantaged accused are generally represented by duty counsels, or by private lawyers who work pro bono or are paid very little by the state. These lawyers not only have less time to dedicate to each case, but they also have to deal with higher numbers of potential collateral consequences to detect[11]. Comments from participants on how they collect the necessary information to identify collateral consequences illustrate how time constraints shape their ability to provide quality advice. Duty counsels and private lawyers working with legal aid certificates must quickly assess collateral consequences during their first (sometimes only) meeting with clients. Some do this using standardized intake forms tracking potentially problematic issues (citizenship, housing, employment) right from the beginning.

In contrast, private practice lawyers who don’t take on legal aid clients explained why they do not need to use intake forms. For them, the exercise of flagging possible collateral consequences unfolds in an organic way, often through multiple meetings and conversations. The process they described flows naturally from building an attorney-client relationship. This is illustrated by comments made by Aisha, a private lawyer who runs a highly specialized practice:

That’s the difference between private counsel and someone who’s got a busy legal aid firm with high volume. They don’t have the time to get to know their clients. That’s a disservice to the client, to the judges, and to the administration of justice. It’s awful! (…) But when you spend two or three years defending someone on a murder charge (like I do), you know their kids’ names.

The translation of time into billable hours and legal fees is also an issue we heard about. Linda, who works in private practice but occasionally accepts indigent clients, notes legal aid does not cover the extra hours she dedicates to identifying collateral consequences for disadvantaged defendants. Because her philosophy is to “do whatever [she] can to get [her clients] good results”, and because of the money she makes in her private practice, she can do it pro bono. Yet not all private practice lawyers are willing or able to do that.

b)    Inequality and Arguments around Collateral Consequences

Interviewees explained that when and how collateral consequences arguments are raised depend very much on client instructions, not just the lawyer’s assessment or the court’s understanding of the case. While some bring up collateral consequence considerations as soon as possible, others hold back information at bail, fearing it could backfire. Participants expressed reluctance to bring up vulnerabilities related to collateral consequences – such as potential loss of already unstable housing or a precarious job – to the court’s attention. The instrumentalization of collateral consequences is certainly not systematic.

For a range of reasons, defendants may instruct their lawyers not to raise issues related to collateral consequences in court. This can be true for privileged or marginalized clients. But of course, they do not face the same realities or have equal protections against possible collateral consequences. Nevertheless, both groups can perceive the impact of collateral consequences on their lives as insignificant, when compared with the impact of pre-trial detention or trial penalties. Further, it may seem like these arguments could slow down proceedings or lower chances of being released quickly. Karl, in private practice, expands on this:

I think most people are just like: "Well, I don't want to go to jail, and if this keeps me out of jail, I don't care about whatever down the line." So, I think yes, probably from a broad perspective, people get it, But oftentimes, the future is not so much on their minds.

Lawyers reported feeling torn between the obligation to accept their clients’ instructions and their own interpretation of their clients’ best interests.

Jordan, a duty counsel, explained how he tries to clarify to his clients why pleading guilty to get out of jail could be a bad idea. “Whoa, whoa, whoa, slow down. There could be some really major impacts to you”, he often tells them. His warnings stem from a widely shared concern among participants, who worry that clients do not appreciate the possible impacts of their legal choices. Defence are not always sure about client instructions. This becomes particularly worrying when the collateral consequence is deportation. As Janice, a duty counsel, told us:

It’s so shitty. I have so many clients who came to Canada from the Caribbean or Somalia, when they were little kids. And for whatever reason, they never got their citizenship. So, they turn 18 and they do something stupid – allegedly – and then they're fucked… No right of appeal.

Participants often mentioned deportation as the most significant collateral consequence to consider. However, several lawyers reported that, to their surprise, non-citizen clients held in detention often prefer to plead guilty and get deported as soon as possible, to avoid spending more time in detention. In such cases, the ‘consequence’ itself becomes the defendant’s quickest way out of custody.

                   Clients don’t always agree or comply with what their defence lawyers advise them to do. Participants told us this happens most with ‘frequent flyers’ who ‘know what’s up’. Anthony, who has been working a mixed practice since the late 1990s, told us about one such client, asking:

What do you do with a guy like that? I sort of perceive that my job is to get him out of jail as quickly as possible. Because that's what he wants. There isn't that element of, "Oh, he wants to be doctor, or he wants to be a nurse." At the end of the day, all he wants is a ‘good deal’".

The defendants’ personal experience and legal perspective, shaped by their disadvantage, will influence their priorities and the weight they assign to collateral consequences. The realities of a system that heavily pressures accused to plead quickly cannot be ignored. Lawyers can struggle to take instructions, conflicted about their moral and professional obligations and commitments to fighting injustice.

                   Constructing and raising collateral consequences arguments also requires time and resources. None of our participants working exclusively in private practice reported struggling with an excessive caseload or feeling pressured to expedite cases. Conversely, several duty counsels and mixed practice lawyers told us about the extremely high volume of cases and pressure to close them efficiently. Working with limited time and resources forces them to engage in an exercise of weighing collateral consequences and balancing probabilities of them actually having an impact on the client’s life before building a legal argument. Pressure to triage was often described as challenging but necessary because, as Malik said, “you can’t save everybody, and you can’t do that for everybody”. Nicolas expands on this, illustrating how most of the participants feel about this need to prioritize:

If I know that you're involved in open active family litigation, then I'll flag it and be like “Well we need to make the arguments for this one because we know for sure these collateral issues are gonna come into play.” But if it's just “Okay, well you're facing domestic violence allegations and you're thinking you might do this type of thing at some point? There's just not enough resources.” I say resources, what I mean is financial, time, staff, court space, emotional bandwidth. (…)

These comments show how the degree of certainty that collateral consequences will actually be triggered does matter. Participants also talked about considering their client’s life trajectory: are they likely to see their circumstances worsen as a result of this criminal conviction? This often means checking if the defendant has a criminal record.

                 Many participants echoed Linda’s view that collateral consequences arguments often “don’t get much mileage” if the defendant has a long criminal record. Conversely, there was clear consensus first-time offenders get different considerations. As Jessica said, everyone makes efforts to “come up with some kind of another solution” to avoid saddling the person with a criminal record. The same dynamic was described by duty counsel Caleb, who has been practicing for almost twenty years:

Clients who already have multiple convictions, there's not that sense of urgency to make sure their record is kept clean. But I try to inform individuals where it's the first time they've gotten in trouble with the law. (…) that's where the main sense of urgency is for me, for someone who doesn't have a criminal record, whether they come from a good background or a bad background.

Besides lack of prior convictions, some collateral consequences seem to trump others when it comes to prioritization practices: when housing is at stake, child custody is on the line[12], or when the defendant will most likely be deported as a result of a conviction. In some cases, the threat of losing a good job or getting kicked out of a professional university program can also help strengthen arguments for a more lenient plea. Another exceptional consideration relates to firearms prohibitions or conditions.

                   When the defendant is young, it’s easier to portray them as full of potential and as redeemable, despite what brought them to court. Melissa, who has practiced for over fifteen years in Toronto, notes that even prosecutors “they’re not looking to ruin an entire life!” Arguments on collateral consequences are most likely to have the desired effect if the defendant is a youth with no previous record, so lawyers can argue the defendant has a (promising) future ahead. Participants also talked about being compelled to highlight when a defendant has young kids or is sole carer for elderly parents. In these cases, the normative aspect the court wishes to protect from collateral consequences is the family stability component.

                   In contrast, lawyers explained that, when working with older disadvantaged clients, they had to be more creative to find original ways to account for their value to be ‘legible’ in court. Melissa illustrated this by noting the key to making collateral consequences arguments work is showing the defendant is determined to break with their past and to embrace what the court sees as pro-social values: “You might be able to show this person has the ability to break that cycle, right? (…) Maybe there's some indication of potential for whatever reason, or the person has decided to truly change, and there's some indication that they have the will or a plan of some sort.” Expanding on this, we heard from other defence that prosecutors/judges expect to hear about the collateral consequences of a conviction if it could impact something in the defendant’s future that the court sees as worthy of protection, such as sobriety, stable housing, education or work.

                   Many participants urge their disadvantaged clients to document the steps they take in ‘the right direction’, but none of them mentioned doing this for more privileged clients. Encouraging this documentation, lawyers anticipate the court’s higher standard of proof for disadvantaged defendants. Sarah, who works in private practice but also takes on indigent clients, gave the following example: I’d say something like “Look, they're taking plumbing school. Here's a letter from the school. If he gets this condition, he's not going to be able to continue with his programming.” Coming up with alternatives that temper collateral consequences for privileged clients seems to be quite straightforward. Note for example the case of Amir’s privileged client, who was facing a travel ban: My client had a wedding coming up. It was abroad, so they couldn't have a record. So, I was like, "We don't have time for this long diversion program. She'll do a straight week of daily counseling and call it a day". On the other hand, lawyers representing disadvantaged defendants face barriers to securing alternatives, and need to consider affordability and social perceptions.

                   Participants told us there are situations where the only defence strategy is to raise arguments based on collateral consequences. This often requires a certain degree of creativity, to make their narrative fit into the expectations of courts and prosecutors. Both private practice and legal aid participants talked about creating a positive narrative to present their clients’ potential for personal development and rehabilitation. For instance, several participants admitted to urging defendants to start treatment as soon as possible so their argument would be more powerful later on. But because crafting collateral consequences arguments is about showing the defendant has a future ahead, there will be less creativity required for a privileged defendant whose promising future seems beyond dispute. Constructing a positive narrative to effectively invoke collateral consequences requires thinking about how clients are facing intersecting disadvantages, and how their personal worth and story can be presented in palatable ways that evoke empathy. This is not always easy, and defence do not advocate for clients equally. When defending privileged clients, the reality and seriousness of the potential collateral consequences are usually not questioned, so there is no need for lawyers to get creative in their conceptualization.

c)   Inequality and Receptivity to Collateral Consequences Arguments

Participants reported another set of issues related to the effectiveness of collateral consequences arguments. Specifically, the impact these arguments have depend on clients and their lawyers’ inclinations, resources and capacity discussed in sections a) and b), but also on how prosecutors/judges think collateral consequences matter, their perception of the client, and the credibility of their defence lawyer.

Participants explained how the success of collateral consequences arguments largely depends on the openness of the other legal actors assigned to the case, prosecution and judges especially. As Susan, an urban duty counsel put it: “Some Crowns get it. Some don’t”. Participants reported that prosecutors and judges often struggle to relate to and recognize the humanity of marginalized people who appear before them. Some suggested this stems from their own class or cultural backgrounds. Chrystal, a duty counsel from Toronto, explained it’s “easier to pull at someone's heartstrings if their life experience is very much like that client's life experience”. Others echoed this sentiment, adding that receptivity to collateral consequences arguments depends on the social composition of the region’s population: courts located in more socioeconomically disadvantaged areas or whose members are more diverse would be more open to arguments related to collateral consequences for disadvantaged defendants[13].

Knowing who will be hearing their cases and adapting their collateral consequences arguments to those individuals is essential. Daniel, a seasoned duty counsel, explained that’s why the first question he always asks when he gets to court is “who’s sitting today?” Fatima, who has a mixed practice, described how “it’s very schizophrenic, the way the law deals with vulnerability and collateral things. It's very judge-specific. It's hard to know what a particular judge is going to do with evidence like that”. But what can defence do, when their audience might not be receptive? William, who also has a mixed practice, was blunt: “I’ll push my clients down the stairs before a trial if we get the wrong judge”. But while some talked about prosecution and judge-shopping, duty counsels have a unique setup. Usually assigned to one specific courthouse, they are bound to one court community, seeing the same people on rotation. The comments made by Esther, who works as duty counsel in the Toronto area, convey what many reported: “Sometimes I see who the assigned Crown is, and I just know I'm not going to be able to strike a deal. Her and I, or him and I, just will never be able to have a conversation for whatever reason.” In these cases, becoming familiar with prosecutors/judges is even more important to building effective defence strategies.

Interviewees revealed another reason defence must make extra efforts to know their audience. They explained prosecutors/judges are more inclined to trust the narratives of privileged clients. Interviewees illustrate this with examples related to the unequal value assigned to different education or career pathways. Talking about her private practice work, Janice explained “this usually works if someone's got a low-level charge. Then you can persuade the prosecutor to give them a conditional discharge, or an absolute discharge, or a peace bond so it doesn't fuck up their employment.” Amir, a private practice lawyer from the Toronto area, told us judges tend to assign more value to professions in the legal, education and medical sectors, and are more sympathetic to defendants they respect and can relate to. In contrast, they show less respect for, and assign less value to collateral consequences impacting less prestigious education or employment:

The classic example is the law student who punches some kid in the face, and it gets withdrawn (because it’s assumed) they'll move on, they'll never do this again. Because if they did get a conviction, their whole things would be ruined. That gets a lot of sympathy. But the kid who will never be, who might go to college for a security program and then become a security officer, they're not going to get the same treatment.

Defence working with disadvantaged clients have a harder time conveying why their lives, work, school and futures matter and need protecting. They talked about adjusting their arguments to the judges’ values and preferences, avoiding challenging the court too directly or disclosing information that could backfire.

Indeed, participants brought to our attention the danger of dealing with prosecutors who hide punitive goals behind a facade of care. Asking about possible collateral consequences, they learn about factors that can be used to assess risk or to pressure accused into pleading guilty in exchange for something that might alleviate collateral consequences concerns (e.g., suspended or non-custodial sentence, lifting of specific restrictions or conditions, etc.) As Sarah explained, prosecutors know some consequences can be especially devastating and adapt charge bargaining strategies accordingly:

They were charged with assault with a weapon. So, what the [prosecutor] did was bring it down to a plain simple assault. With simple assault, you don't go to jail for more than six months, which then doesn't affect your immigration status. So, they’re doing me a favor, and they're saying “Well, if I proceed on assault with a weapon, they can get deported. So, if you plead guilty, I'll do you a favor to proceed with assault.

This leaves defendants in a tough position: while they might avoid deportation or detention, pleading guilty exposes them to other collateral consequences that can also be serious, complicating their ability to work, rent, travel, volunteer, get accreditations or keep custody of their children. Lawyers told us many prosecutors use these dynamics to obtain easy guilty pleas from defendant, exacerbating marginalization and amplifying myriad consequences.

Participants explained that their status, reputation and network shape how they can navigate collateral consequences considerations and negotiate with other court actors. If they are friendly and respected by prosecutors and judges, it helps. If they have seniority or prestige, it helps too. As Daniel, a senior duty counsel said: “If you've established a reputation with who you're in front of, you’re able to submit a lot verbally (…) I've been here a while. So, they have faith there's a kernel of truth to what I'm saying. They give me a lot of credit. I'm very lucky”. Aaliyah, who has been working as a duty counsel since 2008, adds that

“Private counsel might not know the Crowns. But I work in this courthouse. I'm not gonna lie to anyone, period. But I'm also not gonna lie to anyone because I work with these people every day and I'm not ruining my reputation over something stupid. They know me and know I’m not going to lie to them”.

Working in a single courthouse can be a blessing or a curse. Organizational realities are certainly very different, and shape how defence develop their practice, networks and reputation.

Hierarchies matter so much in criminal court cultures, and we heard about how seniority and prestige play into who can get away with what, and who gets believed without need for written evidence. Most reported younger lawyers with less experience or less prestige have a harder time making arguments in favor of their disadvantaged clients. Not only did their arguments have less impact, but it seems the burden of proof also got higher for them, with more frequent pushback. While some focused on the importance of seniority or building trust, for others it can also be about age, race and gender, or a matter of whether the judges ‘like you or not’. This raises critical questions for early career defence and for practitioners who are facing intersecting disadvantages.

IV. DISCUSSION & CONCLUSION

Our goal with this paper was to examine how criminal defence lawyers consider and negotiate collateral consequences in their work with marginalized clients. In our three main analysis sections, we showed that inequality is shaping how defence are (a) identifying collateral consequences, (b) making arguments about them in court, and (c) having them be recognized productively. With our account, we contribute on three fronts.

First, we join others in documenting how courtroom actors are managing the ever-changing realities collateral consequences (Goulette et al., 2014; Goulette and Frank, 2018; Leasure et al., 2022) and we show that the imposition of the duty to inform, placed on the shoulders of defence alone, is problematic. Attempts to improve information rights may contribute to formalizing recognition of the impacts collateral consequences can have. Inequality in criminal courts means some clients and some defence lawyers spend less time assessing these issues and are less likely to move forward with such arguments, or to be taken seriously when they do. In the Factum of the Respondent in the case of R v. Wong, the counsel for the respondent argued that “[e]xpecting legal counsel to factor in collateral consequences (…) will mainly serve to overcomplicate an already arduous task” (para. 86). The Canadian Supreme Court dismissed such a claim, but our findings suggest this counsel was accurate in their prediction. By documenting and analyzing the perspectives and practices of Canadian criminal defence lawyers, we highlight the curious lack of existing tools which could help defence identify relevant collateral[14]. Following the conclusions of the Canadian Bar Association (2023), we also acknowledge difficulties related to the professional mandate, and to the extreme complex nature of assessing collateral consequences themselves

Second, we consider how defence work with clients who are already marginalized, who have often already been criminalized. We focus on how they engage with issues specifically relevant to disadvantaged accused, when it might be less obvious that collateral consequences still matter. While some clients have personal characteristics that make them seem ‘worth protecting’ from possible collateral consequences, others do not. Defence counsel develop strategies, sometimes highlighting progress or motivation to change (ex: person just got custody back; is about to qualify for housing); other times, choosing not to disclose details about a person’s problems, fearing their ‘need’ would be interpreted as ‘risk’. Social and legal inequality also shape criminal defence lawyers’ ability to have trusting, quality exchanges with their marginalized clients. We heard how defendants with previous convictions often prefer taking a plea, disagreeing with their defence lawyer about what is in their best interest. Relatedly, that distrust in the system limits willingness to raise arguments related to collateral consequences. Clair’s (2020) work is relevant here, providing a framework for understanding how privilege shapes relationships between defence. Echoing his conclusions, our participants explained that clients have their own legal knowledge, and point of view, which cannot and should not be dismissed. This general distrust in legal actors, and in the criminal justice system, is often presented as an experience-based response to the fact that courts are ‘unjust institutions’ (see also Clair and Woog, 2022; Van Cleve 2022), that contribute to punishing marginalized people and amplifying social and racial inequalities (Kohler-Hausmann 2018; Sylvestre et al., 2019).  

Third we examine the practices and perspectives of differently situated legal actors: full-time duty counsel, private counsel with ‘mixed practice’ taking on (often high volume) indigent defence work and those in private practice who take on marginalized accused cases pro bono. Organizational realities and court culture are important to consider (Eisenstein and Jacob, 1977; Feeley 1979). What is possible for a defence lawyer at a high end, private firm, is not possible for those doing high volume, and often unpaid work. Our analysis also sheds some light on larger issues related to access to justice and unequal representation. Both duty counsel lawyers and mixed practice defence struggle with excessive caseloads and pressure to expedite cases (see also Benner 2009; Lutes 2020; Mann 2010; Baćak et al., 2024). These two groups reported having the least amount of time and ability to support clients with collateral consequences and struggling with providing effective legal assistance in informing clients about the collateral consequences of a (potential) plea, conviction or sentence. This factors into the feasibility of considering collateral consequences, accessing outside expertise, making arguments, and being taken seriously in court. As disadvantaged accused rely almost exclusively on these lawyers, the burden is heaviest where it can least be tolerated.

 Like Slee (2023), we found “a defender’s constrained advocacy for people with criminal records does not flow from a devaluation of deservingness. Instead, it emerges from an understanding of prosecutors’ and judges’ expectations or allowances”. (39). Our study shows that defence lawyers are anticipating the court’s higher standard of proof for disadvantaged defendants regarding the relevance of collateral consequences arguments. They know prosecutors/judges are more naturally inclined to trust the narratives of privileged people, while they often struggle to relate to and trust marginalized people. Caught in a tough spot, counsels have to choose between “on the one hand, acting in their clients' best interests and, on the other hand, refusing to participate in an injustice and misrepresentation to the court" (Woolley 2016, 1181). Despite all the constraints outlined above, our work demonstrates defence lawyers can and do push back, finding creative ways to get other court actors to see value in protecting their clients’ futures. Like Baćak et al. (2024), we find our participants feel responsible “not only for the clients’ legal outcomes but also for the extralegal penalties that make the effects of mass criminalization ever more significant for social inequality” (7). They try to do a lot with very little, working tirelessly to minimize criminal marks and advocate for mercy, often while managing both “outrage toward the system in which they operate and their low-power status within it” (Slee, 2023; 4).

Future research should track results obtained by various types of defence lawyers, and clarify if, how and when they are able to effectively invoke the relevance of collateral consequences to secure better outcomes. However, our analysis indicates that even motivated and well-resourced defence lawyers, who take time to thoroughly inform defendants of potential collateral consequences and construct careful arguments highlighting their legal relevance in court, cannot always be successful in avoiding or limiting them. Having asked defence lawyers how they negotiate collateral consequences with marginalized clients, we see that duty counsel and those in mixed practice often don’t have time to discuss things carefully. Clients are also not always interested in future-focused considerations, preferring to plead quickly for a ‘better’ deal right now. Constructing a narrative to effectively invoke collateral consequences requires presenting things in a conventionally palatable way to evoke empathy. This is not always easy, and defence are not able to advocate for clients equally. More importantly, they cannot compensate for the crushing social and legal injustice that impacts clients and leave them dealing with repercussions in the short, medium and long term. Other redress avenues ranging from decriminalization to criminal record expungements are clearly essential.

REFERENCES        

Baćak, Valerio, Sarah Esther Lageson, and Kathleen Powell. 2024. “The Stress of Injustice: Duty counsels and the Frontline of American Inequality.” Social Forces, February, soae027.

Baglay, Sasha. 2019. “Collateral Immigration Consequences in Sentencing: A Six-Year Review.” Saskatchewan Law Review 82 (1): 47–74.

Benner, Laurence A. 2008. “The Presumption of Guilt: Systemic Factors That Contribute to Ineffective Assistance of Counsel in California.” California Western Law Review 45 (2): 263–372.

Berger, Benjamin. 2020. “Judicial Discretion and the Rise of Individualization: The Canadian Sentencing Approach.” In Strafzumessung: Angloamerikanische Und Deutsche Einblicke = Sentencing: Anglo-American and German Insights, edited by Kai Ambos, 249-77. Göttingen: Göttingen University Press.

Berson, Sarah B. 2013 "Beyond the sentence-understanding collateral consequences." National Institute of Justice Journal 272, no. 24-28.

Blumberg, Abraham S. 1967. “The Practice of Law as a Confidence Game: Organization Co-Optation of a Profession.” Law & Society Review, 1(2), 15-40.

Braun, Virginia, and Victoria Clarke. 2020. “One Size Fits All? What Counts as Quality Practice in (Reflexive) Thematic Analysis?” Qualitative Research in Psychology 18 (3): 328–52.

Canadian Bar Association. 2023. "Collateral Consequences of Criminal Convictions. Considerations for Lawyers.” Accessed March 21, 2024.

Canadian Civil Liberties Association. 2014. “False promises, hidden costs. The case for reframing employment and volunteer police record check practices in Canada.” Accessed December 1, 2023. https://ccla.org/recordchecks/doc/Records-check-final-20140516.pdf

Chin, Gabriel J. 2002. “Race, the war on drugs, and the collateral consequences of criminal conviction.” Journal of Gender Race & Justice, 6, 253-275.

Chin, Gabriel J. 2012. “The New Civil Death: Rethinking Punishment in the Era of Mass Conviction.” University of Pennsylvania Law Review 160 (6): 1789–1833.

Clair, Matthew. 2020. Privilege and punishment: How race and class matter in criminal court. Princeton University Press.

———. 2021. “Being a Disadvantaged Criminal Defendant: Mistrust and Resistance in Attorney-Client Interactions.” Social Forces 100 (1): 194–217.

Clair, Matthew, and Amanda Woog. 2022. “Courts and the Abolition Movement.” California Law Review 110 (1): 1–46.

Condry, Rachel, and Shona Minson. 2021. “Conceptualizing the Effects of Imprisonment on Families: Collateral Consequences, Secondary Punishment, or Symbiotic Harms?” Theoretical Criminology 25 (4): 540–58.

Corda, Alessandro. 2018. The Collateral Consequence Conundrum: Comparative Genealogy, Current Trends, and Future Scenarios. After Imprisonment (Studies in Law, Politics, and Society, Vol. 77), Emerald Publishing Limited.

Corda, Alessandro, Marti Rovira, and Elina van ’t Zand-Kurtovic. 2023. “Collateral Consequences of Criminal Records from a Cross-National Perspective: An Introduction.” Criminology & Criminal Justice 23 (4): 519-27.

Dao, Lili. 2023 "Mitigating and bordering: The dual nature of Canadian collateral consequences of conviction." Criminology & Criminal Justice 23, (4), 588-607.

Eisenstein, James, and Jacob, Herbert. 1977. Felony Justice: An Organizational Analysis of Criminal Courts. Little, Brown and Co.

Ewald, Alec C., and Marnie Smith. 2008. “Collateral Consequences of Criminal Convictions in American Courts: The View from the State Bench.” Justice System Journal 29 (2): 145–65.

Feeley, Malcolm M. 1979. “Perspectives on Plea Bargaining.” Law & Society Review 13 (2): 199–209.

Goulette, Natalie, and James Frank. 2018. “Examining Criminal Justice Practitioners’ Views on Collateral Consequences Policy.” American Journal of Criminal Justice 43 (3): 724–44.

Goulette, Natalie W., Angela K. Reitler, James Frank, Whitney Flesher, and Lawrence F. Travis. 2014. “Criminal Justice Practitioners’ Perceptions of Collateral Consequences of Criminal Conviction on Offenders.” Criminal Justice Review 39 (3): 290–304.

Hannah-Moffat, Kelly. 2005. “Criminogenic Needs and the Transformative Risk Subject: Hybridizations of Risk/Need in Penality.” Punishment & Society 7 (1): 29–51.

Hubbell, Webb. 2001. “The Mark of Cain.” Criminal Justice 16 (3): 33–35.

Jain, Eisha. 2015. “Arrest as Regulation” Stanford Law Review 67(2) 809-867

Kellough, Gail, and Scot Wortley. 2002. “Remand for Plea. Bail Decisions and Plea Bargaining as Commensurate Decisions.” The British Journal of Criminology 42 (1): 186–210.

Kirk, D. S. and Wakefield, S. 2018. Collateral Consequences of Punishment: A Critical Review and Path Forward. Annual Review of Criminology 1, 171-194.

Kohler-Hausmann, Issa. 2018. Misdemeanorland: Criminal courts and social control in an age of broken windows policing. Princeton University Press.

Kerr, Lisa. 2020. “How Sentencing Reforms Affect Women.” In Sentencing in Canada, edited by Cole and Roberts, 250-72. Irwin Law.

Leasure, Peter, John Burrow, Gary Zhang, and Hunter M. Boehme. 2022. “Collateral Consequences of Conviction in South Carolina Courts: A Study of South Carolina Defence  Lawyers.” Justice System Journal 43 (1): 68–84.

Logan, Wayne A. 2013. “Informal collateral consequences.” Washington Law Review, 88(3): 1103–1117.

Love, Margaret Colgate. 2003. “Starting over with a Clean Slate: In Praise of a Forgotten Section of the Model Penal Code Twelfth Annual Symposium on Contemporary Urban Challenges: Beyond the Sentence: Post-Incarceration Legal, Social, and Economic Consequences of Criminal Convictions.” Fordham Urban Law Review 30 (5): 1705–42.

———. 2015. “Managing Collateral Consequences in the Sentencing Process: The Revised Sentencing Articles of the Model Penal Code.” SSRN Scholarly Paper. Rochester, NY. https://papers.ssrn.com/abstract=2613216.

———. 2011. “Collateral Consequences after Padilla v. Kentucky: From Punishment to Regulation A New Era for Plea Bargaining and Sentencing: The Aftermath of Padilla v. Kentucky.” Saint Louis University Public Law Review 31 (1): 87–128.

Lutes, Naomi L. 2020. “The Role of Defence Counsel at Sentencing.” In Sentencing in Canada, edited by Cole & J. Roberts, 129-52. Irwin Law.

Manikis, Marie (2022). Recognising State in Sentencing: A Communicative and Relational Framework. 25.

Mann, Phyllis E. 2010. “Ethical Obligations of Indigent Defence Attorneys to Their Clients.” Missouri Law Review, 75(3), 715-749.

Maurutto, Paula, Hannah-Moffat, Kelly and Quirouette, Marianne. 2022 “Punishing the Non-Convicted Through Disclosure of Police Records” British Journal of Criminology 63(6) 1368-1383

Maynard-Moody, Steven, and Michael Musheno. 2003. Cops, Teachers, Counselors: Stories from the Front Lines of Public Service. Michigan: University of Michigan Press.

Miller, Reuben, and Stuart, Forrest. 2017. “Carceral Citizenship: Race, Rights and Responsibility in the Age of Mass Supervision.” Theoretical Criminology, 21(4), 532-548.

Mulé, B., and Yavinski, M. (2006), ‘Saving One’s Home: Collateral Consequences for Innocent Family Members,’ N.Y.U. Review Law and Social Change, 30/4: 689-699.

Pager, Devah. 2003. “The Mark of a Criminal Record.” American Journal of Sociology 108 (5): 937–75.

Pinard, Michael. 2004. “Broadening the Holistic Mindset: Incorporating Collateral Consequences and Reentry into Criminal Defence Lawyering.” Fordham Urban Law Journal, 31(4), 1067-96.

———. 2010. “Collateral Consequences of Criminal Convictions: Confronting Issues of Race and Dignity.” New York University Law Review 85 (2): 457–534.

Skolnick, Jerome. 1967. “Social Control in the Adversary System.” The Journal of Conflict Resolution, 11(1), 52–70.

Slee, Gillian. 2023. “Of the State, against the State: Duty counsels, Street-Level Bureaucracy, and Discretion in Criminal Court.” Social Service Review 97 (4): 675–718.

Small, Mario Luis, and Jessica McCrory Calarco. 2022. Qualitative literacy: A guide to evaluating ethnographic and interview research. University of California Press..

Smyth, McGregor. 2011. "“Collateral” No More: The Practical Imperative for Holistic Defense in a Post-Padilla World . . . Or, How to Achieve Consistently Better Results for Clients." Saint Louis University Public Law Review, 31(1): 141-67

Sylvestre, Marie-Eve, Nicholas Blomley and Céline Bellot. 2019. Red Zones: Criminal Law and the Territorial Governance of Marginalized People. Cambridge University Press.

Travis, Jeremy. 2002. “Invisible punishment: An instrument of social exclusion.” In Invisible Punishment: The Collateral Consequences of Mass Imprisonment, edited by M. Mauer & M. Chesney-Lind, 15–36. New York: New Press.

Travis, Jeremy, Bruce Western, and F. Redburn. 2014. The Growth of Incarceration in the United States: Exploring Causes and Consequences. National Academies Press.

Turney, Kristin and Sara Wakefield. 2019. “Criminal Justice Contact and Inequality.” RSF: The Russell Sage Foundation Journal of the Social Sciences 5 (1): 1–23.

Uggen, C. (2000), ‘Work as a Turning Point in the Life Course of Criminals: A duration model of age, employment, and recidivism,’ American Sociological Review, 64/4: 529-546.

Uggen, C., Vuolo, M., Lageson, S., Ruhland, E., and Whitham, H. K. (2014). ‘The Edge of Stigma: An experimental audit of the effects of low‐level criminal records on employment,’ Criminology, 52/4: 627-654.

Van Cleve, Nicole G. 2012. “Reinterpreting the zealous advocate: multiple intermediary roles of the criminal defence attorney”. In Leslie C. Levin & Lynn M. Mather (eds.), Lawyers in Practice: Ethical Decision Making in Context. University of Chicago Press.

———. 2016. Crook County: Racism and Injustice in America’s Largest Criminal Court. Stanford University Press.

———. 2022. “Due Process & the Theater of Racial Degradation: The Evolving Notion of Pretrial Punishment in the Criminal Courts.” Daedalus 151 (1): 135–52.

Vargas, M. (2006), ‘Immigration Consequences of Guilty Pleas or Convictions,’ N.Y.U. Review of Law and Social Change, 30/4: 701-716.

Woolley, Alice .2016. "Hard Questions and Innocent Clients: The Normative Framework of the Three Hardest Questions, and the Plea-Bargaining Problem," Hofstra Law Review (44) 4 -10.

CITED CASE LAW

Canada

R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520

R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696

R. v. Collins, 2011 ONCA 182 [2011] O.J. No. 978

R v Suter, 2018 SCC 34 [2018] 2 S.C.R. 496

United States

Padilla v. Kentucky, 559 U.S. 356 (2010)

Strickland v. Washington, 466 U.S. 668 (1984).

Funding via: The Canadian Institutes of Health Research - Banting Postdoctoral Fellowship (2018); The Canadian Social Science and Humanities Research Council - Insight Development Grant (2020); & Fonds De Recherche Du Québec – ‘Research support for New Academics’ (2022). We are grateful to our participants, and to our research team, without whom this study would not have been possible. Many thanks to Chris Rudnicki for his helpful comments on early drafts. Of course any mistakes in the manuscript are our own.

[1] See e.g., Strickland v Washington (466 U.S. 668, 1984) in the United States and R v G.D.B (2000 SCC 22) in Canada. 

[2] Terms include ‘civil disabilities’ (Davis, 1980); ‘mark of Cain’ (Hubbell, 2001); ‘invisible punishments’ (Travis, 2002); ‘new civil death’ (Chin, 2012), or symbiotic harms or secondary punishments (Condry and Minson, 2021).

[3] Notable exception, Dao (2023) offers a comprehensive review of Canadian courts and collateral consequences policies, focusing on immigration-related consequences.

[4] The Canadian Supreme Court (2013) embraced a “capacious definition of collateral consequences and has justified this approach on grounds that highlight both the doctrinal priority and distinctive character of individualization in Canadian sentencing” (Berger 2020; 267). In R v Suter (2018 SCC 34), Justice Moldaver defined collateral consequences very inclusively, as “any consequence arising from the commission of an offence, the convictions for an offence, or the sentence imposed for an offence that impacts the offender” (para. 47), whether or not they are foreseeable or natural.

[5] Duty counsels are lawyers who are employed by Legal Aid, and usually assist with bail hearings, guilty pleas, set dates, and general legal advice. They often to not take on trial work. Private counsels can represent indigent clients via Legal Aid certificates, or when doing pro bono work.

[6] We use a flexible approach to terms related to disadvantage, inequality and privilege, as it reflects ways in which participants spoke to us about issues affecting them and their clients.

[7] Mixed practice refers to private counsel who do indigent defence work via “certificates” issued by legal aid.

[8] Our sample is not representative of all Canadian criminal defence lawyers. Our recruitment focused on those who work with marginalized clients in either Ontario or in Quebec.

[9] With immigration consequences, duty to advise is imposed by the SCC. For other types of collateral consequences, this ‘duty’ emerges from guidelines produced by professional organizations. 

[10] Other examples include professional licences, driver’s licences, military standing, firearm restrictions, sex offender registries and future enhancement of punitive controls and sentences.

[11] Disadvantage of defendants matters here too. Participants noted that expecting marginalized (often vulnerable) clients to consult several professionals without support or extra resources is highly unrealistic. Providing this type of support is, of course, time consuming and difficult for resource strapped defence.

[12] See also Kerr (2020) and R v Collins, 2011 ONCA.

[13] Some duty counsel assigned to drug treatment courts told us that dedicated prosecutors working in the program tend to be more receptive and aware of collateral consequences impacting disadvantaged people, compared to the traditional stream.

[14] See for example, this American tool: the Collateral Consequences Calculator, which “allows a user to quickly look up the consequences of any crime (conviction) in the New York penal code and compare them to the consequences of any other crime” https://ccnmtl.columbia.edu/triangle/projects/collateral_consequences_calcul.html