Sunday, June 4, 2017

Issues In Imposing Criminal Costs Raised by the 2017 SCC Decision in Jodoin

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.

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