1. Introduction
This blog looks at the Supreme Court of
Canada’s 2017 decision in Quebec (Criminal and Penal Prosecutions) v Jodoin, ("Jodoin"). The main issue in the case was the capacity
of the Court to impose costs on criminal defence counsel. In addition to describing the case, this blog
critically examines the Court’s determinations and highlights a few points of concern
in the Supreme Court’s reasoning, including the distinctions drawn by the court
in terms of its own inherent powers to manage lawyers compared to law societies.
The blog also questions the Court’s
description of ‘guideposts’ for seeking
costs in criminal matters and considers several possible implications arising
from the decision. This includes the
possibility of seeking costs from the Crown and some potentially unfortunate side-effects,
which may either hinder judicial economy or discourage forceful advocacy by criminal
defence counsel in the future. While this case
raises a number questions and concerns, it fits within a line of jurisprudence that is continuing
to develop a distinct Canadian approach to the principle of Bar independence.
2. Background to the Case
Mr. Jodoin was an “experienced criminal
lawyer” (para 2) who filed two series of motions alleging bias against two different
judges on the same day. The 1st set of writs would
have resulted in a postponement of the hearing (para 5), but for the fact a
different judge ended up hearing the matter and the motions were put
aside.
The new judge attempted to begin the
proceeding, but defence counsel objected to calling an expert witness on the
basis that he had not received required notice and that he had not been able to
examine the expert’s resume (para 6). The
presiding judge permitted the adjournment, but only until after the lunch
break, during which time defence counsel drew up a 2nd set of writs challenging
jurisdiction, and also alleging judicial bias (para 7).
The matter was subsequently adjourned and the Crown sought costs.
The Quebec Superior Court found the lawyer's actions to be unfounded, frivolous and of questionable legal
value (para 9). The Court determined that Jodoin’s actions represented a “deliberate”
and “serious” abuse of the justice system at (para 11). For its part, Quebec’s
Court of Appeal upheld the judgment disposing of the writs of prohibition, but
set aside the costs award against the defence counsel. While it acknowledged the power of the court
to award costs in criminal matters, it found that the instant case did “not
have the exceptional and rare quality” sufficient to attract such a sanction (para 14).
3. Discussion of Supreme Court Judgment
The majority of the Supreme Court, led
by Justice Gascon, upheld the Superior Court decision to award costs against
the lawyer as a “deliberate abuse of the judicial system” (para 3). Though such awards are rare, the high court
agreed that these circumstances represented an “exceptional” case that
satisfied the criteria applicable (para 4).
In reaching this conclusion the Court raised several notable issues,
which are examined below.
i)
Inherent Powers & the Primary Role of Law
Societies?
Though the Court found the power of the courts
to impose criminal costs was ‘settled’, it later devoted several
paragraphs to explaining the scope of the Court’s “inherent jurisdiction” on this issue(para
21). The Court also discussed the powers of courts and law societies to manage lawyers. Here, the majority noted that Canadian law
societies play a “primary” role of “public protection” (para 22), which is a wording choice that raises some issues.
The
Court’s focus on ‘public protection’ contrasts with the more usual jurisprudential
description of legal regulators to act in the ‘public interest’. In at least some jurisdictions the statutory mandate to
act in the ‘public interest’ though, is something that is relatively recent, see discussion of this point e.g., here. As I’ve
noted before, this description of lawyers and legal regulators acting
historically in the public interest is also flawed in the sense that it ignores
a long and complicated history, where the law, lawyers, judges, and the court
system have all sometimes demonstrated a mixed record in the advancement of public
values, see here.
In addition, the role of law societies
is usually regarded in the context of broader principles like rule of law. In this sense, though authorized by statute,
Canadian law societies are usually not regarded principally as government
bodies dealing with public or consumer protection. More frequently, they are described as
democratic associations that historically have acted as intermediate institutions between governments and citizens, see e.g. here. Consequently, the Court’s identification of ‘protection’
as a law society role, but also as its primary purpose, is potentially a
significant variance from the traditional view, which could presage a new
emphasis on legal regulators as governmental bodies, akin to other kinds of administrative consumer protection tribunals.
ii) ‘Preventative’
vs ‘Reactive’ Roles of Courts and Law Societies?
The court also distinguishes more clearly
its role in legal professional regulation.
While other courts have suggested the role of law societies to regulate
the profession is unqualified (see e.g. the OCA 2016 decision in Groia at para 102), the Supreme Court describes the ‘preventative’
role of the courts to protect the administration of justice. By contrast, it also describes the
complementary role of law societies as “reactive” (para 22)
On this point not a lot of detail is
provided to define what the Court sees as appropriately within the scope of the
“reactive” role of law societies.
However, the Court immediately jumps to what at first appears as
something of a non-sequiter, since it
does not actually seem to be a current issue in the case, when it says subsequently, “there is nothing to prevent the law society from exercising in
parallel its power to assess its members’ conduct and impose appropriate
sanctions” (para 23).
However, the court’s assertion about the
“parallel” power of the law society may strategically speak to that same issue,
the respective roles of the law society and the courts, that will likely be considered
in the future Groia litigation. There, a substantial position of the
dissent opinion was that the management of in-court proceedings is exclusively within the constitutional
authority of the judiciary. The Supreme
Court’s comments on the “parallel” authority of law societies in Jodoin could thus be read to pre-empt
that future line of argument in the Groia
appeal, currently scheduled to be heard in November 2017.
iii) Guideposts
For Imposing Costs?
The Court also provided what it called
two ‘guideposts’ for cost awards. For
the 1st guidepost the Court distinguished between awards of costs in
civil and criminal proceedings. Here,
the Court observed that in criminal proceedings awards of costs are purely
punitive (para 31). The Court also
contrasted the role of civil lawyers to promote dispute resolution in contrast
to the more adversarial role of criminal defence counsel to challenge (para 32). While in many cases the distinction drawn
by the Court might be valid, the contrast between the relative adversarialism
of criminal defence and civil litigation lawyers seems incomplete. That is, arguably there are plenty of civil
counsel who, despite their obligation to promote resolution, can be just as
adversarial and zealous as their criminal defence counsel colleagues.
The 2nd guidepost described
by the Court suggests that it is not appropriate to consider the lawyer
disciplinary record in imposing costs (para 33).
Here the majority suggests, courts should only consider whether or not
the lawyer was acting in bad faith. This
point by the Court would perhaps have been more persuasive if in later
discussion it had not in fact raised the prior record of the lawyer and
discussed it (paras 46 – 48). However,
to be fair, the Court notes it was not raising the prior record as improper evidence of a general propensity or bad
character, but instead as admissible evidence of the respondent’s state of mind
when he filed the proceedings (para 48).
Though not addressed in the
decision, a further guidepost that would have been helpful is whether or not the principles for seeking costs in criminal matters also
apply to seek costs from the Crown. The last few years have seen a shift
in the willingness of courts to allow for the review of the professional behaviour
of prosecution lawyers. This has included
the movement away from the traditional view, that Crown exercises of discretion
were unreviewable, to a less strict position that some Crown behaviour may be subject to
scrutiny by the regulator and the courts, including exercises of prosecutorial discretion and trial management authority, see e.g., my comment on this issue here.
It is presently unclear
whether or not the same guideposts for the imposition of costs would apply in
a criminal case involving a Crown counsel. However,
there appears to be nothing in the reasoning of the decision that would
preclude it, and the possibility that Crown Attorneys could be similarly
responsible for costs would be consistent with the broader trend towards increased
scrutiny of Crown behaviour in Canadian law.
iv) The Dissent
and the Appeal to Judicial Economy
In Jodoin
the Court found the lawyer’s conduct “particularly reprehensible” motivated by
an attempt to postpone, rather than based in sincere belief as to the merits of
the writs of prohibition (para 42). In
this case the lawyer’s behaviour warranted an extraordinary response since his
conduct was “for a purely dilatory purpose with the sole object of obstructing
the orderly conduct of the judicial process”.
The dissent took issue with this
characterization of the lawyer’s behaviour in this case. Here they pointed out that the applicable
rules actually had entitled the lawyer to an adjournment. The dissent also noted the hearings judge had
wrongly suggested Jodoin had already examined one of the witnesses. In this respect, the dissent concluded that
while the incident could “easily be seen as an error of judgment”, it was “hardly
one justifying a personal costs order” (para 74).
A curious aspect of the majority’s characterization
of the lawyer’s behaviour is its further appeal to judicial economy to justify
imposing a costs award. Here, Justice
Gascon noted the Supreme Court’s recent widely publicized decision in Jordan which “emphasized the importance
of timely justice and noted that all participants in the criminal justice
system must co-operate in achieving reasonably prompt justice” (para 56).
The point of the majority seems to be
that permitting potentially frivolous proceedings to pass without consequence
risks further burdening an already overtaxed system. However, as noted by the dissent, the lawyer’s
behaviour in this case, though perhaps injudicious, was not entirely unwarranted. Given
these circumstances, the decision in Jodoin
raises the question of the Crown’s capacity to raise and successfully seek
costs awards against forceful defence advocates in the future. Ultimately, in my view this may have two
alternate, but equally unfortunate side-effects.
On the one hand, it is hard to see how
recognizing the Crown’s authority to seek costs in criminal matters is going to
speed up the justice system. In this
respect, imposing costs on criminal defence counsel was previously unusual. If the Crown attempts to seek costs more
frequently as a result of this decision, it may well increase the amount of
court resources used to address this issue.
On the other hand, if instead this decision has a ‘chilling effect’ on
criminal defence counsel and causes them to hesitate to raise novel or unique
legal and procedural challenges, then this decision will be detrimental, not
only to all criminal defendants, but to the rule of law itself in our justice
system.
4.
Conclusion
The Jodoin
case fits within a line of decisions refining Canadian approaches to lawyer
independence and law society regulation over the last few years. This
includes the 2017 Supreme Court decision in the professional lawyer disciplinary
case of Green v. LSM, which I
commented on prior to its hearing at the Supreme Court last fall. Green ultimately
lost that appeal, in which the provincial law society sanctioned him for not
complying with his mandatory CPD obligations. Interestingly, in both Green and Jodoin, Justices Abella and Coté joined together in dissent to support the views of an individual lawyer facing sanctions for his professional behaviour. The arguments of the dissent and majority in these cases may well set out the fault lines for future determinations by the Supreme Court on these kinds of legal questions.
Further cases in this series will likely include the Groia decision, which will consider many similar issues, as well as the upcoming hearing involving Trinity Western University, which will also consider the institutional role of law societies. Ultimately, despite some unanswered questions and concerns about the decision, the recent Supreme Court of Canada decision in Jodoin falls well within this line, which is dynamically shaping a unique approach to both the individual and institutional independence of the Bar in the Canadian legal system.
No comments:
Post a Comment