Transcript R. v. Cunningham Can I Withdraw?

R. v. Cunningham
Can I Withdraw?
Presented by:
The Honourable Judge M. D. Irwin,
Associate Chief Judge Provincial Court of Saskatchewan
(Saskatoon)
&
Jay Watson,
Cuelenaere Kendall Katzman & Watson
June 22nd, 2010
Background
• Cunningham was employed by the Yukon Legal
Services Society.
• Cunningham’s client was charged with three sexual
offences against a young child and had an upcoming
preliminary inquiry.
• Seven weeks prior to commencing the prelim, Legal Aid
informed the client that he had to update his financial
information or else he would lose his Legal Aid funding.
• The client failed to update his information, and
consequently was informed by Legal Aid that
Cunningham was no longer authorized to represent him.
• Cunningham brought an application to withdraw as
counsel of record.
The Preliminary Inquiry Judge
Decision
• The application to withdraw as counsel
was refused.
Why the Application Was Denied
a) legal aid funding could potentially be reinstated and the lawyer was willing to continue in
the event that it was;
b) the charges against the accused were very serious;
c) there was a young child complainant whose memory, emotional and psychological wellbeing may have been affected by further delay;
d) counsel would have to be appointed to cross-examine the child complainant;
e) there was no information on the potential for the accused to obtain other representation;
f) there was no information on when the preliminary inquiry could be rescheduled if
withdrawal was allowed;
g) while a preliminary inquiry is not as critical as a trial, it is still important to how the trial is
conducted;
h) there was a hotly contested and difficult issue regarding videotape evidence that would
be difficult for the accused to deal with as a self-represented litigant; and
i) further delay would prejudice the accused as he was labeled a potential sexual offender
as a result of the criminal charges.
Superior Court Decision
• Ms. Cunningham made an application in the nature of
certiorari seeking to quash the Order of the Territorial
Court Judge.
• The preliminary inquiry judge had jurisdiction to exercise
discretion over withdrawal on the basis of s. 537(1) of
the Criminal Code, R.S.C. 1985, c. C-46.
• The Preliminary Inquiry Judge did not exceed his
jurisdiction and therefore the Superior Court dismissed
the application for certiorari.
The Court of Appeal Decision
• The Court of Appeal allowed the appeal, finding that the trial judge
had no discretion to refuse withdrawal on the basis that:
(a) the Law Society has the primary interest in lawyer regulation and
court oversight would create a conflict between the court’s decision and
disciplinary action by the Society;
(b) there is a potential threat to solicitor-client privilege in the case the
court asks for the reasons for withdrawal; and
(c) compelled representation potentially places the client’s best interests
and the lawyer’s interests in conflict.
• Found that only in “extreme circumstances” where withdrawal
amounts to a “serious affront to the administration of justice” should
the court exercise its contempt power.
• The matter was then appealed to the Supreme Court.
The Supreme Court Decision
Ruling:
• A Court has the authority to control its own process and
to supervise counsel who are officers of the Court.
• The Court’s jurisdiction to refuse counsel’s request to
withdraw should be exercised exceedingly sparingly.
• It is not appropriate for the Court to refuse withdrawal
where an adjournment will not be necessary or where
counsel seeks to withdraw for ethical reasons.
• Where counsel seeks untimely withdrawal for nonpayment of fees, the Court must weight the relevant
factors and determine whether withdrawal could cause
serious harm to the administration of justice.
General Rules from Cunningham
• Rule: If an adjournment is not necessary leave to withdrawn should
be granted.
• Rule: If counsel is withdrawing for ethical reasons leave should be
granted.
• Rule: If an adjournment would be required if withdrawal is allowed,
the court is entitled to ask for the reason for the request. If leave is
sought as a result of non-payment of fee issues, the court must
decide if withdrawal would cause serious harm to the administration
of justice.
The threshold for refusing leave to withdraw is a high one and
requires a proper basis in the record for its exercise
The jurisdiction to refuse leave to withdraw should be exercised
exceedingly sparingly
Factors to be Considered by the Court
(Non-Exhaustive List)
• Whether it is feasible for the accused to represent himself or herself;
• Other means of obtaining representation;
• Impact on the accused from delay in proceedings, particularly if the
accused is in custody;
• Conduct of counsel, example: if counsel gave reasonable notice to
the accused to allow the accused to seek other means of
representation, or if counsel sought leave of the court to withdraw at
the earliest possible time;
• Impact on the Crown and any co-accused;
• Impact on complainants, witnesses and jurors;
• Fairness to defence, including consideration of the expected length
and complexity of proceedings;
• The History of the proceedings, example: if the accused has
changed lawyers repeatedly.
Things to Think About
in Light of Cunningham
• Get your money up front!
• Assist clients in fulfilling legal aid requirements if being
paid on a legal aid farmout basis.
• Indicate on court record if you are only retained for part
of the matter (i.e. bail hearing, preliminary inquiry etc…).
• Advise clients in your retainer agreement what is
financially required of them. Include deadlines for
payment well in advance of court dates.
Law Society of Saskatchewan
Code of Conduct Rules
Duty Following Withdrawal
• Upon discharge or withdrawal the lawyer should:
(a) deliver in an orderly and expeditious manner to or to the
order of the client all papers and property to which the client
is entitled;
(b) give the client all information that may be required about the
case or matter;
(c) account for all funds of the client on hand or previously dealt
with and refund any remuneration not earned during the
employment;
(d) promptly render an account for outstanding fees and
disbursements;
(e) co-operate with the successor lawyer.
Appealing an Application to
Withdraw Decision
• From Provincial Court, a Certiorari application
would be made to the Court of Queen’s Bench.
The issue will be whether there was an error of
jurisdiction or an error of law on the face of the
record.
• From the Court of Queen’s Bench: Could an
application for Certiorari be made to the
Saskatchewan Court of Appeal?
• Appeal to the Saskatchewan Court of Appeal
• Appeal to the Supreme Court of Canada
A View from the Saskatchewan
Provincial Court
• Application of the Case to Saskatchewan
• Practice Directives
QUESTIONS?
• What if there are two reasons for seeking
to withdraw, fees and ethical
consideration?