Tracey Tyler Legal Affairs Reporter
Judges can force criminal lawyers to continue to represent a client who is unwilling or unable to pay for their services or has a legal aid certificate revoked – but the power should be used “exceedingly sparingly,” the Supreme Court of Canada ruled Friday.
While an accused person could be prejudiced if abandoned by counsel, refusing a lawyer’s request to withdraw from a case and ordering them to work for free is a decision that should not be made lightly, the court said.
“In general, access to justice should not fall solely on the shoulders of the criminal defence bar, and in particular, legal aid lawyers,” said Justice Marshall Rothstein, who wrote the decision on behalf of a unanimous nine-member court.
The case was closely watched by lawyers, law societies and provincial governments across the country and comes at a time when more Canadians could find themselves in the predicament of not qualifying for legal aid and being unable to pay for a lawyer privately.
The ruling also resolves two conflicting lines of decisions from courts across the country.
Courts in British Columbia and the Yukon had determined judges have no authority to prevent defence counsel from withdrawing from a case for non-payment of fees. Courts in most other provinces, however, including Ontario, had taken the opposite view.
Scott Hutchison, who represented the Criminal Lawyers’ Association, an intervener in the case, said the decision moves the rule to a more balanced position from the perspective of defence lawyers in Ontario, “the people in the system who are least rewarded and most abused” economically.
“In Ontario, the onus was much more on counsel to justify getting off the record.” Hutchison said Friday.
The case originated in the Yukon, where Jennie Cunningham, a lawyer working for the Yukon Legal Services Society, was representing a man charged with sexual offences against a young child.
Approximately seven weeks before a preliminary hearing was to begin, legal aid informed Cunningham’s client he had to update his financial information and failing to so would result in suspension of his legal aid funding, which is exactly what happened.
Cunningham and several interveners argued that oversight of a lawyer’s decision to withdraw from a case should be the exclusive purview of law societies, which govern the conduct of lawyers and their discipline.
But Rothstein said the purpose of having a court determine whether a lawyer can withdraw from a case has nothing to do with discipline but with protecting the administration of justice and trial fairness.
To guide judges, the court set out eight factors they should consider when confronted with a lawyer’s request to get off a case.
