The Report also sees defence counsel as part of the problem. It suggests that counsel may be wary of being sued by dissatisfied clients or labelled as incompetent on appeal, which leads in turn to a reluctance to make concessions or not bring pre-trial applications. Frankly, GFN doubts whether many counsel bring meritless pre-trial applications for this reason. Appeal courts almost never allow an appeal on the basis of incompetence of counsel, and a finding against counsel in a civil suit is even rarer. But another point made in the Report deserves greater attention, namely, that counsel may be too quick to accede to a client's wishes in bringing pre-trial applications and contesting trial matters and do not exercise their own professional judgment. What does the Report mean, and who exactly controls the conduct of the defence, the client or the lawyer?

The traditional view is that the lawer controls all of the decisions made in conducting the defence, with the exception of a very few fundamental decisions such as whether to plead guilty, whether to have a jury trial and whether to testify. This position is taken by most courts and defence lawyers in Canada, and can be traced back to a couple of speeches made in the late 1960s and early 1970s by one of Canada's greatest defence lawyers (and judges), G. Arthur Martin. Others may disagree or seek to temper the traditional position, but it seems firmly entrenched in Canada. Accepting its pre-eminence, GFN nonetheless believes that the "lawer-control" model requires counsel to keep the client informed of all major steps taken in the conduct of the defence. The client should have the opportunity to express his or her views, where possible, and to engage in a full and frank discussion with counsel. If disagreement exists and cannot be resolved, counsel is not justified in proceeding in the face of client instructions to the contrary. Rather, counsel must either withdraw from the case or the client must fire counsel. To repeat, the lawyer-control model does not give counsel license to conduct the defence without keeping the client informed or contrary to the instructions of the client.

As mentioned, the Report embraces the lawyer-control model. It does so in order to make a fairly simple point: counsel must exercise his or her professional judgment in deciding what applications to bring and what issues to contest at trial. It is improper for counsel to accept instructions from the client without exercising such judgment. If one accepts this view, which the lawyers at GFN do, then it is easy to accept also the Report's main argument in this regard, which is that defence counsel must thoroughly and competently assess each case and decide which issues are triable and which issues can be conceded. If counsel takes this course of action, and does not "abdicate their professional and ethical responsibilities" (in the words of the Report, at p. 23), it is much less likely that trial time will be wasted.

What some defence lawyers may find hard to accept is the Report's view that counsel should be prepared to address such matters at pre-trial conferences. But GFN generally accedes to the Report's view. While defence counsel does not have a duty to make disclosure of its case to the Crown and court, there are many areas with respect to which counsel can make concessions or raise issues without undermining the client's interests. It is no great sacrifice to take this approach in order to ensure an efficient administration of justice; indeed, it is the duty of every defence counsel to do so.