Friday, March 26, 2010

Withdrawal for the Non-Attendance of "Mr. Green"

I must write a quick commentary on the just-released judgment of the Supreme Court of Canada in R. v. Cunningham...because it is already being misconstrued by mainstream media and the courts must not be misled as to what the SCC really said.

The Calgary Herald has published an article with the outrageously misleading headline, "Lawyers can't dump deadbeat clients, top court rules." That is absolutely NOT what the SCC decision in Cunningham stands for.

True, the SCC did conclude that both superior and provincial courts hearing criminal matters have the jurisdiction to refuse a lawyer's application to withdraw for non-payment of fees but the more revealing part of the analysis is that the unanimous panel described such a refusal as "coercive" and therefore directed that the jurisdiction should be used "exceedingly sparingly."

The judgment concludes with a very concise summary paragraph:

In sum, a court has the authority to control its own process and to supervise counsel who are officers of the court...This jurisdiction, however, should be exercised exceedingly sparingly. It is not appropriate for the court to refuse withdrawal where an adjournment will not be necessary, nor where counsel seeks withdrawal for ethical reasons. Where counsel seeks untimely withdrawal for non-payment of fees, the court must weigh the relevant factors and determine whether withdrawal would cause serious harm to the administration of justice.

Earlier, the SCC judgment notes that even where the court finds that the administration of justice would be seriously harmed, withdrawal MAY be refused...not must be...for non-payment of fees. The SCC elaborated stating that "only in the most serious circumstances" should a criminal defence lawyer be forced to shoulder the financial burden of providing access to justice. "Refusing to allow counsel to withdraw should truly be a remedy of last resort and should only be relied upon where it is necessary to prevent serious harm to the administration of justice."

So...R. v. Cunningham actually stands for the proposition that lawyers clearly CAN dump so-called "deadbeat" clients...or what us more ethical professional types would instead refer to as clients who for whatever reason find themselves unable to pay (of course, how could one expect sensationalist media types to recognize that sometimes...dare I say oftentimes...people who are impecunious are not "deadbeats").

The good news for us here in Alberta is that the SCC standards set in Cunningham actually are pretty much exactly the test that was set by our Alberta Court of Appeal back in 1996...with but one significant exception. When considering how to balance the application to withdraw as against the harm to the administration of justice, the SCC specifically noted that administrative inconvenience, specifically whether the court time could be used by another case if an adjournment was required is not a relevant consideration.

One final note that is very important for the future arguments of this issue. The SCC expressly did not rule on the merits of the Cunningham case...calling that issue moot since they were only deciding whether the court had the jurisdiction to make such a ruling.

That is, Cunningham does not stand as authority that if Legal Aid cancels your client's coverage one month before preliminary inquiry that your application to withdraw for non-payment of fees should be denied. Obviously, every case will be decided on its own facts, applying the Cunningham criteria and any other relevant circumstances to the balancing.

Although I end by emphasizing to defence counsel, Crown counsel and judges alike that Cunningham uses very strong language against orders requiring counsel to act for free even where applications for withdrawal for non-payment are "untimely". Don't let media hype replace actually reading the judgment and applying its true spirit.

Michael Bates
Calgary Criminal Defence Lawyer


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