R. v. Cunningham = old law
Last week my colleague Benjy Radcliffe commented on the Supreme Court’s decision in R. v. Cunningham (2010 SCC 10) as being one where the Court, “in considering the scope of [its] jurisdiction, bites off its nose to spite its face.” I would argue that this is too hasty and critical a view of the Court’s decision. Cunningham is a well-reasoned, prudent, and measured decision in light of systemic problems of lack of access to justice, legal underrepresentation, and faulty provincial/territorial legal aid schemes that scar the criminal justices system of Canada.
First, it is important to repeat what Justice Rothstein’s decision stands for. The ratio can be broken down into three parts, the general rule followed by two conjunctive qualifications. The general rule is that “[a] court has the authority to require counsel to continue to represent an accused when the reason for withdrawal is non-payment of fees.” The two qualifications to this rule are that the authority “must be exercised sparingly, and only when necessary to prevent serious harm to the administration of justice” (at para.1, emphasis added).
As for the general rule, for a majority of Canadian jurisdictions, Cunningham only clarifies what is already considered good law. The Courts of Appeal of Alberta, Saskatchewan, Manitoba, Ontario, and Quebec (as well as trial courts in New Brunswick and Newfoundland) have long maintained the position that a court has the authority to prevent criminal defence counsel from withdrawing for non-payment of fees. Only British Columbia and the Yukon Courts of Appeal have restricted this authority of superior courts (see para.10).
For example, the Ontario Court of Appeal in R. v. Clement (2002) (166 C.C.C. (3d) 219) held that “[a]s a general rule, where a lawyer has agreed to act in a criminal matter and the trial is about to start, counsel is expected to remain on the record whether or not his client is able to pay his fees” (emphasis added). Similarly, r.2.09(5) of the Law Society of Upper Canada Rules of Professional Conduct states:
“Where a lawyer has agreed to act in a criminal case and where the date set for trial is not far enough removed to enable the client to obtain another lawyer or to enable another lawyer to prepare adequately for trial and an adjournment of the trial date cannot be obtained without adversely affecting the client’s interests, the lawyer who agreed to act may not withdraw because of non-payment of fees.” (Emphasis added. See also R. v. Brundia (2007 ONCA 725)).
The idea of a court being able to supervise, probe, or restrict withdrawals of lawyers in criminal matters (subject to many restrictions and qualifications) is also not in the least bit controversial. In MacDonald Estate v. Martin ( 3 S.C.R. 1235) the Supreme Court entrenched a court’s ability to oversee the court process as part of the inherent jurisdiction of superior courts in Canada and within their mandate of the administration of justice. In Martin, the Court recognized a court’s inherent jurisdiction to remove solicitors from the record where conflicts of interest arise. In the words of Justice Rothstein, “It would seem to follow that just as the court, in the exercise of its inherent jurisdiction, may remove counsel from the record, it also may refuse to grant counsel’s application for withdrawal” (at para.18).
The next question would be: what do the qualifications (sparing use and only to prevent serious harm to administration of justice) entail? Most of the sixty paragraph decision is dedicated to answering this question and providing guidance to lower courts. The Court stresses that refusal of a withdrawal should be a remedy of last resort. Justice Rothstein summarizes the non-exhaustive factors that ought to be taken into account as follows (at para.50):
• whether it is feasible for the accused to represent himself or herself;
• other means of obtaining representation;
• impact on the accused from delay in proceedings, particularly if the accused is in custody;
• conduct of counsel, e.g. if counsel gave reasonable notice to the accused to allow the accused to seek other means of representation, or if counsel sought leave of the court to withdraw at the earliest possible time;
• impact on the Crown and any co-accused;
• impact on complainants, witnesses and jurors;
• fairness to defence counsel, including consideration of the expected length and complexity of the proceedings;
• the history of the proceedings, e.g. if the accused has changed lawyers repeatedly.
Besides the Court’s guidance, the Cunningham case itself serves as precedent for disallowing an application to withdraw where harm to the administration of justice would be sufficiently serious. So, on what grounds did the motion judge refuse the withdrawal?
a) legal aid funding could potentially be reinstated and [the lawyer] was willing to continue in the event that it was;
b) the charges against [the accused] were very serious;
c) there was a young child complainant whose memory, emotional and psychological well-being may have been affected by further delay;
d) counsel would have to be appointed to cross-examine the child complainant;
e) there was no information on the potential for [the accused] to obtain other representation;
f) there was no information on when the preliminary inquiry could be rescheduled if withdrawal was allowed;
g) while a preliminary inquiry is not as critical as a trial, it is still important to how the trial is conducted;
h) there was a hotly contested and difficult issue regarding videotape evidence that would be difficult for [the accused] to deal with as a self-represented litigant; and
i) further delay would prejudice [the accused] as he was labelled a potential sexual offender as a result of the criminal charges (2006 YKTC 61 at para.26 as cited in 2010 SCC 10 at para.4).
Restricting counsel from withdrawing in light of non-payment undoubtedly raises concerns. But equally concerning would be leaving the accused unrepresented by counsel to face serious criminal charges. As Cunningham shows, the administration of justice is not only about the interests of the accused but also about the interest of society. Delays incurred due to withdrawal of counsel can result in evidentiary problems and, in extreme circumstances, an acquittal for the accused. Having self-represented (unrepresented) individuals face serious criminal charges in the absence of legal counsel raises grave concerns for the administration of justice and the criminal justice system in Canada.