Focus: Cost awards against lawyers possible

Trial judges do not have to rely only on contempt powers or law societies to take action if a court finds there has been misconduct by a lawyer in a criminal proceeding, the Supreme Court of Canada has ruled in Quebec v. Jodoin.

All levels of court have the inherent jurisdiction to make a costs award personally against a lawyer, although this sanction should only be imposed in rare circumstances, the Supreme Court stated in a 7-2 decision issued on May 12.

“An award of costs against a lawyer personally can be justified only on an exceptional basis where the lawyer’s acts have seriously undermined the authority of the courts or seriously interfered with the administration of justice,” wrote Justice Clément Gascon.

“This high threshold is met where a court has before it an unfounded, frivolous, dilatory or vexatious proceeding that denotes a serious abuse of the judicial system by the lawyer, or dishonest or malicious misconduct on his or her part, that is deliberate,” wrote Gascon.

The Supreme Court upheld the decision of a Quebec Superior Court judge who imposed a $3,000 costs award against Robert Jodoin. The Crown initiated the costs proceeding alleging that Jodoin brought bias applications in 2013 against two different provincial court judges on the same day simply as a means to adjourn a number of impaired driving cases.

The Quebec Court of Appeal had set aside the costs order and noted that other sanctions could have been invoked, such as citing the lawyer for contempt.

In allowing the Crown appeal from that decision, the Supreme Court majority concluded the Court of Appeal did not show appropriate deference to the discretion of the lower court judge in imposing the costs order.

A number of interveners appeared before the Supreme Court including the Ontario Criminal Lawyers’ Association. In its written submissions filed with the court, lawyers Marlys Edwardh and Maxime Hebrard argued that the contempt power is more appropriate than a costs award if there is an allegation of misconduct in court by a defence lawyer.

“Contempt proceedings, on the other hand, offer the substantive protections of the criminal burden of proof, a clearly defined test for proving actus reus and mens rea, and all of the procedural protections of a criminal trial,” they wrote on behalf of the criminal lawyers group.

Although the Supreme Court reaffirmed the right of trial judges to impose costs personally, the power is not something that should concern the defence bar, say two experienced criminal lawyers.

“I do not think this will have a chill on defence lawyers,” says Anil Kapoor, who heads Kapoor Barristers in Toronto.

“The conduct will have to be deliberate and incredibly offside,” he suggests.

Enzo Rondinelli, a lawyer at Lafontaine & Associates in Toronto, says the existence of this costs power should not be of concern to the overwhelming majority of criminal defence counsel.

“The Supreme Court emphasizes that costs against a lawyer personally will be justified only on an exceptional basis. Ninety-nine per cent of the defence bar who I know do not have anything to worry about due to this case. Nobody benefits from frivolous and vexatious proceedings. Hopefully, the one per centers take note,” says Rondinelli.

The jurisdiction of a judge to impose a costs award in a criminal case against a lawyer has been recognized for many years, but the process for doing so has not been clearly explained until Jodoin, notes Kapoor.

“This case formalizes the process upon which costs can be visited upon a lawyer. It is highly structured and may make it even more rare,” says Kapoor.

 The Supreme Court ruling does not address the circumstances where a Crown attorney’s conduct might be subject to a costs order.

However, in those kinds of circumstances, Kapoor says, defence counsel would likely seek a remedy to benefit the client, such as asking charges to be stayed for an abuse of process.

The majority decision also distinguished between the responsibilities of a criminal lawyer in court and one involved in civil litigation.  

“The role of a defence lawyer is not comparable in every respect to that of a lawyer in a civil case. For example, the latter has an ethical duty to encourage compromise and agreement as much as possible. In contrast, a defence lawyer has no obligation to help the Crown in the conduct of its case,” writes Gascon.

As well, if the Crown is asking the court to impose costs personally against a defence lawyer, there is a limited role for the prosecution.

“The Crown must confine itself to its role as prosecutor of the accused. It must not also become the prosecutor of the defence lawyer,” Gascon wrote.

At the same time, if the circumstances do warrant a costs order, that does not mean the lawyer may not also face professional sanctions, the Supreme Court made clear.

While the Supreme Court has made it clear that this type of penalty is going to be an unusual occurrence, Rondinelli says he believes it is better for the law society to deal with allegations of misconduct in court.

“My concern with judges entering the fray of, in effect, disciplining lawyers is that moving forward can that lawyer ever appear before that judge?” he asks.

“The trial judge isn’t in the best position to assess the lawyer’s actions in the context of the instructions they may have received from their clients.”

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