What is Collective Defence?

Collective defence is a commitment to an approach to criminal defence where the collective well-being is prioritized alongside individualized outcomes and where a continued political struggle is integrated into the criminal defence process.

In plain English: collective defence happens when a group of people facing charges choose to create a defence strategy together.

Why is collective defence important?

Police, Crowns, and criminal courts use criminalization to divide movements and disrupt the possibility of large scale collective action.

This is often the primary goal and accomplishment that the state gets from criminalization, and why they are often willing to drop or lessen charges once a heightened political moment passes.

The logic of criminalization is to de-legitimize and punish collective action that disrupts the status quo. Criminal courts do not seek the truth or justice but protect people with power and capital.

Isolation is part of the punishment

Often, the most significant consequences of an arrest or charges is the individualization and fear it produces, as well as the incredible drain of a movement’s resources and time.

In addition, when people charged don’t talk or strategize with each other, the Crown can divide and conquer disorganized groups of defendants, for example offering onerous plea deals to individual defendants in order to set a precedent for a group. While those pleas might benefit the individual, they can greatly undermine a collective defence strategy and cause discord amongst organizers.

Collective defence aims to keep people collective, to provide movement-aligned support to address consequences, and to ensure that people are not pitted against each other.

Solidarity and collective care are important to maintaining strength in a group of co-defendants. People facing charges may need extra support, so lawyers and supporters should take special care with their clients and community members during this time. When speaking with arrestees, lawyers can see if the person needs help meeting basic needs while detained or facing charges (e.g., accessing medication, work consequences, travel etc).

The key political principles behind collective defence include:

Non-cooperation with police or the Crown (prosecutors)
- e.g. not agreeing to deals that give the Crown and police information on others and on the movement
  [Note: this does not mean that people involved in collective defence never take plea deals. All options remain on the table, but any course of action is taken with understanding of this political commitment not to sell each other out.]
Global outcomes, not divide and conquer
- e.g. commitment to seeking global resolutions that don’t peel people off and don’t define good and bad defendants
Sharing resources and support between defendants
- E.g. sharing legal information, sharing legal representation resources, sharing financial support, sharing evidence that can be helpful to each other (within bounds of professional ethics/responsibility)
- Ensuring no one is alone facing the consequences of a collective action;
Accounting for the fact that defendants may hold multiple goals in their legal defence
- E.g. dismissal of charges, but also limiting the restrictions on someone’s ability to remain politically involved, and more attention or pressure on a political target
- Lawyers can take direction from and honor organizers’ and protesters’ goals in protest while simultaneously engaging in creating defence strategies.
Collective education and decision-making around legal process
- Structuring legal teams so clients, lawyers, supporters, and organizers can co-strategize
Ensuring that individuals facing consequences of collective action do not get divorced from the larger political movement and goal.

There is no “one way” to do collective defence.

Here are some examples:

A group of people criminally charged from the same direct action defending themselves with one single legal team and appearing in court together. They can choose to file defensive applications together and share evidence with each other;
A group that is charged chooses to use court processes to bring further attention to an issue or target by talking about it in court;
A group of people facing consequences for their actions engaging in a public collective campaign demanding that all consequences be dropped or pressures the crown and court that it is not in the public interest or illegitimate to continue;
A group of people criminally charged who represent themselves individually but commit to sharing information and strategies with each other and choosing to make decisions about next steps together.

Can collective defence weaken my legal defence?

No, abiding by the principles of collective defence (supporting each other, strategizing together and not allowing divide & conquer) does not weaken your individual legal defence. It may also allow you to pursue certain goals outside of just fighting your charges.

The way in which a collective defence is approached is a tactical question and its strength depends on the context. The structure of the legal team and tactics used in and out of court depend on many factors.

For example, while public campaigns can act to put pressure to drop the charges, they may also attract the attention of a more senior and antagonistic senior Crown. Another byproduct: engaging in one collective legal defence tactic may strengthen the legal defence for each individual by allowing everyone’s facts to become context for each other, but in consolidating cases can also require less resources from the Crown to prosecute.

Are lawyers allowed to represent people collectively?

Yes. It is not illegal or against legal professional rules to represent a group of people. In Ontario, the rules of professional conduct allow for collective representation (also known as “joint retainers”) so long as every person involved is fully advised and informed of the meaning of the collective representation and gives written consent.

Often, lawyers worry that collective conversations about criminal charges between defendants with different counsel will breach solicitor-client confidentiality or accidentally waive privilege. While parties to a joint retainer necessarily waive confidentiality among group members, the group as a whole retains confidentiality and solicitor-client privilege with its lawyer. Counsel can share information with co-defendants when their clients give them express or implicit authority to do so.

When structuring a collective defence retainer and team, lawyers should make clear the boundaries for confidential information.

When working with a defence collective, lawyers must make sure each party has the ability to fully participate in the decision making process. Lawyers should work with the collective to develop communication and decision making systems. Joint retainers and collective defences require lawyers to account for the whole group.

Lawyers cannot knowingly encourage illegal conduct, but can advise and represent clients who, in good faith and on reasonable grounds, want to challenge or test a law. Additionally, lawyers can and should advise their clients about any risks of potential actions.

Lessons from recent experiences with political charges:

Accept that this will be chaotic sometimes – with many people involved, even the perfect structure cannot account for everything
Know that one of purposes of criminalization is to instill fear and divide the movement – part of a lawyer’s job is ensuring people have support and trust within the collective that is built
It is very common for criminal lawyers to offer pro bono services in political cases. Some may not have experience with collective defence or organizing. The lawyers work for the people who are charged, not vice versa.
People should feel empowered to direct their lawyers. Lawyers should be pushed not to say “don’t do that” or “you can’t do that” but rather share their assessment of the risks of any action and develop creative approaches to address people’s multiple goals. To effectively do this, lawyers should attend the collective meetings where people ask questions and offer ideas. Experience in criminal representation is helpful.
Expect criticism from the crown, and other criminal lawyers and judges. They might say you aren’t allowed to work together (it’s not true); they might say your lawyers are misguiding you (it’s hopefully not true); they might say you are grandstanding , that you are activists.
The criminal process can take a very very very long time. Most people do not know the legal process and early education on the legal process can reset expectations and better allow people to co-strategize.
Every single court appearance is an opportunity for relationship building and education. These fights can be liberating for people in court, resetting their understanding of the system but also experience being subjugated to it.
Judges and crowns aren’t used to having observers — even 15 observers throws them off their game and lets them know this won’t be business as usual
Knowing that every step will be a public fight can raise the stakes for crowns who do aggressive things or make the process take a very long time and be resource intensive
Consolidating shouldn’t be hard — the truth is that they don’t want to make five different judges deal with your shenanigans, it’s in everyone’s interest to consolidate so just keep asking if that’s what you want
There are lots of issues the media doesn’t cover, but then the minute they are in court people want to talk about them — take advantage of that for the movement goals – but don’t just get distracted by the legal process.

Information by the Community Justice Collective.