SUPREME
COURT OF CANADA
Citation: Quebec (Director of Criminal and Penal
Prosecutions) v. Jodoin, 2017 SCC 26
|
Appeal heard:
December 5, 2016
Judgment
rendered: May 12, 2017
Docket:
36539
|
Between:
Director
of Criminal and Penal Prosecutions
Appellant
and
Robert
Jodoin
Respondent
-
and -
Director
of Public Prosecutions, Criminal Lawyers’ Association (Ontario), Association
des avocats de la défense de Montréal, Trial Lawyers Association of British
Columbia and Canadian Civil Liberties Association
Interveners
Official English Translation: Reasons of Gascon J.
Coram: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner,
Gascon, Côté, Brown and Rowe JJ.
Reasons for
Judgment:
(paras. 1 to 57)
|
Gascon J. (McLachlin C.J. and Moldaver, Karakatsanis,
Wagner, Brown and Rowe JJ. concurring)
|
Joint Dissenting
Reasons:
(paras. 58 to 75)
|
Abella and Côté JJ.
|
Note: This document is subject to editorial revision before its
reproduction in final form in the Canada Supreme Court Reports.
quebec (director of criminal and penal
prosecutions) v. jodoin
Director of Criminal and Penal
Prosecutions Appellant
v.
Robert Jodoin Respondent
and
Director of Public Prosecutions,
Criminal Lawyers’ Association (Ontario),
Association des avocats de la défense de
Montréal,
Trial Lawyers Association of British
Columbia and
Canadian Civil Liberties
Association Interveners
Indexed as: Quebec (Director of Criminal and Penal Prosecutions) v.
Jodoin
2017 SCC 26
File No.: 36539.
2016: December 5; 2017: May 12.
Present: McLachlin C.J. and Abella, Moldaver, Karakatsanis,
Wagner, Gascon, Côté, Brown and Rowe JJ.
on appeal from the court of appeal for quebec
Criminal
law — Costs — Lawyers — Courts — Jurisdiction — Superior Court dismissing
motions of defence lawyer for writs of prohibition and awarding costs against
lawyer personally — Court of Appeal setting award aside — Criteria and process
applicable to exercise by courts of their power to impose such sanction on
lawyer — Whether awarding costs against lawyer personally was justified in this
case — Whether Court of Appeal erred in substituting its own opinion for that
of Superior Court.
J,
an experienced criminal lawyer, was representing 10 clients charged with
impaired driving. On the morning of a scheduled hearing in the Court of Québec
on a motion for disclosure of evidence in his clients’ cases, before it even
began, J had the office of the Superior Court stamp a series of motions for
writs of prohibition in which he challenged the jurisdiction of the Court of
Québec judge who was to preside over the hearing, alleging bias on the judge’s
part. However, before the motions were served, the parties learned that
another judge would be presiding instead. The motions were therefore put aside,
and the hearing on the motion for disclosure of evidence began. At the hearing,
J objected to the testimony of an expert witness called by the Crown on the
ground that he had not received the required notice. The judge decided to
authorize the examination in chief of the expert after the lunch break. During
the break, J drew up a new series of motions for writs of prohibition, this
time challenging that judge’s jurisdiction and alleging, once again, bias on
the judge’s part. After the break, he informed the judge of this and the
hearing was adjourned, as the service of such motions suspends proceedings
until the Superior Court has ruled on them. The Superior Court dismissed the
motions and, at the Crown’s request, awarded costs against J personally. The
Court of Appeal affirmed the Superior Court’s judgment on the disposition of
the motions, but allowed the appeal solely to set aside the award of costs
against J personally.
Held
(Abella and Côté JJ. dissenting): The appeal should be allowed and the
award of costs restored.
Per
McLachlin C.J. and Moldaver, Karakatsanis, Wagner, Gascon,
Brown and Rowe JJ.: The courts have the power to maintain respect for
their authority. This includes the power to manage and control the proceedings
conducted before them. A court therefore has an inherent power to control abuse
in this regard and to prevent the use of procedure in a way that would be
manifestly unfair to a party to the litigation before it or would in some other
way bring the administration of justice into disrepute. This is a discretion
that must be exercised in a deferential manner, but it allows a court to ensure
the integrity of the justice system.
The
awarding of costs against lawyers personally flows from the right and duty of
the courts to supervise the conduct of the lawyers who appear before them and
to note, and sometimes penalize, any conduct of such a nature as to frustrate
or interfere with the administration of justice. As officers of the court,
lawyers have a duty to respect the court’s authority. If they fail to act in a
manner consistent with their status, the court may be required to deal with them
by punishing their misconduct. This power of the courts to award costs against
a lawyer personally is not limited to civil proceedings, but can also be
exercised in criminal cases, which means that it may be exercised against
defence lawyers. This power applies in parallel with the power of the courts to
punish by way of convictions for contempt of court and that of law societies to
sanction unethical conduct by their members.
The
threshold for exercising the courts’ discretion to award costs against a lawyer
personally is a high one. 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. 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.
There
are two important guideposts that apply to the exercise of this discretion. The
first guidepost relates to the specific context of criminal proceedings, in
which the courts must show a certain flexibility toward the actions of defence
lawyers, whose role is not comparable in every respect to that of a lawyer in a
civil case. If costs are awarded against a lawyer personally, the purpose must
not be to discourage the lawyer from defending his or her client’s rights and
interests, and in particular the client’s right to make full answer and
defence. Thus, the considerations to be taken into account in assessing the
conduct of defence lawyers can be different from those that apply in the case
of lawyers in civil proceedings. The second guidepost requires a court to
confine itself to the facts of the case before it and to refrain from
indirectly putting the lawyer’s disciplinary record, or indeed his or her
career, on trial. To consider facts external to the case before the court
can be justified only for the limited purpose of determining, first, the
intention behind the lawyer’s actions and whether he or she was acting in bad
faith, and, second, whether the lawyer knew, on bringing the impugned
proceeding, that the courts do not approve of such proceedings and that this
one was unfounded.
A
court cannot award costs against a lawyer personally without following a
certain process and observing certain procedural safeguards. A lawyer upon whom
such a sanction may be imposed should be given prior notice of the allegations
against him or her and the possible consequences. The notice should contain
sufficient information about the alleged facts and the nature of the evidence
in support of those facts, and should be sent far enough in advance to enable the
lawyer to prepare adequately. The lawyer should have an opportunity to make
separate submissions on costs and to adduce any relevant evidence in this
regard. The applicable standard of proof is the balance of probabilities. In
criminal proceedings, the Crown’s role on this issue must be limited to
objectively presenting the evidence and the relevant arguments.
The
circumstances of this case were exceptional and justified an award of costs
against J personally. The Superior Court correctly identified the applicable
criteria and properly exercised its discretion. As the court noted, J’s conduct
in the cases in question was particularly reprehensible. The purpose of that
conduct was unrelated to the motions he brought. J was motivated by a desire to
have the hearing postponed rather than by a sincere belief that the judges
targeted by his motions were hostile. J thus used the extraordinary remedies
for a purely dilatory purpose with the sole objective of obstructing the
orderly conduct of the judicial process in a calculated manner. It was
therefore reasonable for the court to conclude that J had acted in bad faith
and in a way that amounted to abuse of process, thereby seriously interfering
with the administration of justice. The Court of Appeal should not have
intervened in the absence of an error of law, a palpable and overriding error
of fact or an unreasonable exercise of discretion by the Superior Court.
Per
Abella and Côté JJ. (dissenting): Personal costs orders are
of an exceptional nature. In the criminal context, such orders could have a
chilling effect on criminal defence counsel’s ability to properly defend their
client. Accordingly, they should only be issued in the most exceptional of circumstances
and the Crown should be very hesitant about pursuing them.
In
the instant case, J’s behaviour did not warrant the exceptional remedy of a
personal costs order. It appears that his conduct was not unique and that he was
being punished as a warning to other lawyers engaged in similar tactics. The
desire to make an example of J’s behaviour does not justify straying from the
legal requirement that his conduct be rare and exceptional before costs are
ordered personally against him.
Moreover,
J’s motions for writs of prohibition were not unfounded to a sufficient degree
to attract a personal costs order. The Crown had not provided J with the notice
required for an expert witness testimony under s. 657.3(3) of the Criminal
Code . J was, as a result, entitled to an adjournment under s. 657.3(4) . The
judge presiding in the Court of Québec only granted him a brief one over the
lunch break and mistakenly said that J had already cross‑examined the
Crown’s expert in other matters. In the circumstances, J’s filing of motions
for writs of prohibition for the purpose of suspending the proceedings can
easily be seen as an error of judgment, but hardly one justifying a personal
costs order. For these reasons, the appeal should be dismissed.
Cases Cited
By Gascon J.
Applied:
Quebec (Attorney General) v. Cronier (1981), 63 C.C.C. (2d) 437; considered:
Young v. Young, [1993] 4 S.C.R. 3; Pacific Mobile Corporation v.
Hunter Douglas Canada Ltd., [1979] 1 S.C.R. 842;
referred to: R.
v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167; Canam Enterprises Inc. v.
Coles (2000), 51 O.R. (3d) 481, rev’d 2002 SCC 63, [2002] 3 S.C.R. 307; Morel
v. Canada, 2008 FCA 53, [2009] 1 F.C.R. 629; Myers v. Elman, [1940]
A.C. 282; Pearl v. Gentra Canada Investments Inc., [1998] R.L. 581; R.
v. Liberatore, 2010 NSCA 26, 292 N.S.R. (2d) 69; R. v. Smith (1999),
133 Man. R. (2d) 89; Canada (Procureur général) v. Bisson, [1995]
R.J.Q. 2409; United Nurses of Alberta v. Alberta (Attorney General),
[1992] 1 S.C.R. 901; R. v. Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331;
R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575; R. v.
Trang, 2002 ABQB 744, 323 A.R. 297; Fearn v. Canada Customs, 2014
ABQB 114, 586 A.R. 23; R. v. Ciarniello (2006), 81 O.R. (3d) 561;
Leyshon‑Hughes v. Ontario Review Board, 2009 ONCA 16, 240 C.C.C. (3d)
181; Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395; Histed
v. Law Society of Manitoba, 2007 MBCA 150, 225 Man. R. (2d) 74; Groia v.
Law Society of Upper Canada, 2016 ONCA 471, 131 O.R. (3d) 1; R. v.
G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520; R. v. Joanisse (1995), 102
C.C.C. (3d) 35; R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908; R. v. Carrier, 2012 QCCA 594; St‑Jean
v. Mercier, 2002 SCC 15, [2002] 1 S.C.R. 491; Ontario (Attorney General)
v. Bear Island Foundation, [1991] 2 S.C.R. 570; Hamilton v. Open
Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303; Galganov v.
Russell (Township), 2012 ONCA 410, 294 O.A.C. 13; Trackom Systems
International Inc. v. Trackom Systems Inc., 2014 QCCA 1136; Québec
(Procureur général) v. Bélanger, 2012 QCCA 1669, 4 M.P.L.R. (5th) 21; R.
v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631.
By
Abella and Côté JJ. (dissenting)
Young
v. Young, [1993] 4 S.C.R. 3; R. v. Gunn, 2003 ABQB 314; 335 A.R.
137.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms,
ss. 7 , 11 .
Criminal Code, R.S.C. 1985, c. C‑46,
s. 657.3(3) , (4) .
Professional Code, CQLR, c. C‑26,
s. 23.
Rules
of Practice of the Superior Court of the Province of Quebec, Criminal Division,
2002, SI/2002‑46, s. 25.
Authors Cited
Code,
Michael. “Counsel’s Duty of Civility: An Essential Component of Fair Trials and
an Effective Justice System” (2007), 11 Can. Crim. L.R. 97.
Jacob,
I. H. “The Inherent Jurisdiction of the Court” (1970), 23 Current Leg. Probs.
23.
Monahan, Patrick J. “The Independence of the Bar as a
Constitutional Principle in Canada”, in The Law Society of Upper Canada, ed., In
the Public Interest: The Report & Research Papers of the Law Society of
Upper Canada’s Task Force on the Rule of Law & the Independence of the Bar,
Toronto: Irwin Law, 2007, 117.
Morissette, Yves‑Marie. “L’initiative judiciaire vouée à l’échec
et la responsabilité de l’avocat ou de son mandant” (1984), 44 R. du B.
397.
APPEAL
from a judgment of the Quebec Court of Appeal (Dutil, Levesque and
Émond JJ.A.), 2015 QCCA 847, [2015] AZ‑51175627,
[2015] J.Q. no 4142 (QL), 2015 CarswellQue 4364 (WL Can.), setting
aside in part a decision of Bellavance J., 2013 QCCS 4661, [2013] AZ‑51004528,
[2013] J.Q. no 13287 (QL), 2013 CarswellQue 10170 (WL Can.). Appeal allowed,
Abella and Côté JJ. dissenting.
Daniel Royer and Catherine
Dumais, for
the appellant.
Catherine Cantin‑Dussault, for the respondent.
Gilles Villeneuve and Mathieu
Stanton, for
the intervener the Director of Public Prosecutions.
Maxime Hébrard and Marlys A. Edwardh, for the intervener the Criminal
Lawyers’ Association (Ontario).
Walid Hijazi, Lida Sara Nouraie and Nicholas St‑Jacques, for the intervener Association
des avocats de la défense de Montréal.
Mathew P. Good and Ariane Bisaillon, for the intervener the Trial
Lawyers Association of British Columbia.
Frank Addario and Stephen
Aylward, for
the intervener the Canadian Civil Liberties Association.
English version of the judgment of McLachlin
C.J. and Moldaver, Karakatsanis, Wagner, Gascon, Brown and Rowe JJ. delivered
by
Gascon
J. —
I.
Overview
[1]
This appeal concerns the scope of the courts’
power to award costs[1] against
a lawyer personally in a criminal proceeding. Although the courts have the
power to maintain respect for their authority and to preserve the integrity of
the administration of justice, the appropriateness of imposing such a sanction
in a criminal proceeding must be assessed in light of the special role played
by defence lawyers and the rights of the accused persons they represent. In
such cases, the courts must be cautious in exercising this discretion.
[2]
The respondent is an experienced criminal lawyer
and a member of the Barreau du Québec. In several impaired driving cases joined
for hearing on a single motion for disclosure of evidence, he filed
two series of motions on the same day for writs of prohibition against two
judges of the Court of Québec, each time on questionable grounds of bias,
apparently in order to obtain a postponement of the scheduled hearing. A first
judge had initially been assigned to preside over that hearing, but a second
one replaced the first unexpectedly at the last minute. In response to that
unprecedented strategy, which resulted in the postponement of the hearing in
the Court of Québec, the appellant, the Crown, asked not only that the motions
be dismissed, but also that the costs of the motions be awarded against the
respondent personally.
[3]
The Superior Court held that awarding costs
against a lawyer personally can be justified in the case of a frivolous
proceeding that denotes a serious and deliberate abuse of the judicial system.
The judge expressed the opinion that the respondent’s intentional acts were
indicative of such abuse and constituted exceptional conduct that justified
making an award against him personally. The Court of Appeal acknowledged that
the motions for writs of prohibition should be dismissed, but nonetheless set
aside the award of costs against the respondent personally, finding that his conduct
did not satisfy the strict criteria developed by the courts in this regard.
[4]
In my opinion, the appeal should be allowed. The
Superior Court correctly identified the applicable criteria and properly
exercised the discretion it has in such matters. The Court of Appeal should not
have intervened in the absence of an error of law, a palpable and overriding
error of fact or an unreasonable exercise of his discretion by the motion
judge. Although the exercise of this discretion will be warranted only in rare
cases, the circumstances of the instant case were exceptional and justified an
award of costs against the respondent personally.
II.
Context
[5]
The relevant context of this case can be
summarized briefly. In April 2013, the respondent was representing
10 clients charged with driving while impaired by alcohol or while their
blood alcohol level exceeded the legal limit. There were 12 cases, and
they were joined for a hearing scheduled in the Court of Québec on a motion for
disclosure of evidence, because the accused were all represented by the
respondent. On the morning of the hearing, before it even began, the respondent
had the office of the Superior Court stamp a series of motions for writs of
prohibition in which he challenged the jurisdiction of the Court of Québec
judge who was to preside over the hearing, alleging bias on the judge’s part.
As an experienced criminal lawyer, the respondent was well aware that the
filing of such motions results in the immediate postponement of the hearing
then under way until the Superior Court has ruled on them.
[6]
However, the same morning, before the motions
were served, the parties learned that another judge would be presiding over the
hearing instead. The motions were therefore put aside, and the hearing on the
motion for disclosure of evidence began. At the hearing, the Crown stated that
it wished to call its expert witness. The respondent objected on the ground
that he had not received the notice required by s. 657.3(3) of the Criminal
Code, R.S.C. 1985, c. C‑46 , and that he had been unable to
consult the expert’s resumé. He requested a postponement. The judge heard the
parties on this subject and decided to authorize the examination in chief of
the expert after the lunch break. In his view, the respondent would have an opportunity
to examine the expert’s resumé before the hearing resumed.
[7]
During the break, the respondent chose instead
to draw up a new series of motions for writs of prohibition, this time
challenging the second judge’s jurisdiction and alleging, once again, bias on
the judge’s part. After the break, he informed the judge of this. As a
result of s. 25 of the Rules of Practice of the Superior Court of the
Province of Quebec, Criminal Division, 2002, SI/2002‑46, which
provides that the service of such motions suspends proceedings, the judge had
no choice but to adjourn the hearing.
[8]
The appellant, believing that the sole purpose
of these successive extraordinary remedies was to obtain a postponement for an
ulterior motive, objected to the respondent’s tactic. He told the respondent
that he intended to seek an award of costs against the respondent personally
because of the latter’s dilatory motions and abuse of process. The Superior
Court thus heard the motions for writs of prohibition both on the merits and on
the award of costs being sought against the respondent personally.
III.
Judicial History
A.
Quebec Superior Court (2013 QCCS 4661)
[9]
The Superior Court judge began by rejecting the
arguments on the merits of the motions for writs of prohibition against the
Court of Québec judge. He found that the motions were unfounded and frivolous
and that they were of questionable legal value for an experienced lawyer such
as the respondent.
[10]
The judge then dealt with the costs award being
sought against the respondent. Indeed, he devoted the bulk of his reasons to
that issue, as it was clear, to say the least, that the proceeding was
frivolous, given that there was nothing in the words of the Court of Québec
judge to indicate an excess of jurisdiction.
[11]
On the law applicable to the issue of costs in
criminal proceedings, the Superior Court judge cited Quebec (Attorney‑General)
v. Cronier (1981), 63 C.C.C. (2d) 437 (Que. C.A.). He noted that L’Heureux‑Dubé J.A.,
as she then was, had emphasized [translation]
“the inherent power of the Superior Court to manage cases within its
jurisdiction and to award costs not provided for by statute” (para. 115
(CanLII)). On the basis of the principles enunciated in Cronier, the
judge found that the issue was whether what was before him was “a frivolous proceeding
that denotes a serious abuse of the judicial system”, an abuse that was
“deliberate” (para. 117).
[12]
On the facts of the case before him, the judge
found that the [translation]
“preparation, at lunchtime on April 23, 2013, of a series of motions for
writs of prohibition in a legal situation that did not call for such a
proceeding, and the continued presentation of those proceedings,” constituted
abuse of “section 25 of the Rules of Practice and the suspension
order it entails” (para. 118). In his analysis, the judge took the
respondent’s conduct in other cases into account in determining whether he had
had culpable intent to file, as a calculated act, proceedings that he knew to
be frivolous and abusive.
[13]
The judge concluded that the respondent’s conduct
satisfied the applicable criteria and that it had [translation] “led, in a manner that well‑informed
Canadians would not approve of, to paralysis of the legitimate work of the
Court of Québec sitting in a criminal proceeding and to disruption of its local
judges’ case management work” (para. 119). He dismissed the motions for
writs of prohibition and awarded costs against the respondent personally,
setting them at $3,000 for all the cases combined, or $250 per case.
B.
Quebec Court of Appeal (2015 QCCA 847)
[14]
The Court of Appeal affirmed the Superior
Court’s judgment on the disposition of the motions for writs of prohibition,
but allowed the appeal solely to set aside the award of costs against the
respondent personally. It noted that, in criminal cases, [translation] “costs have no longer been
systematically awarded since the 1954 reform of the criminal justice system”
(para. 5 (CanLII)). However, it acknowledged that, “in circumstances that
are quite rare and exceptional”, the Superior Court can, “in the exercise of
its inherent superintending and reforming powers, award costs” (para. 6).
In the case at bar, the Court of Appeal was of the view that the Superior Court
should not have exercised those inherent powers to sanction conduct that had
occurred in another court that itself had the power to punish for contempt of
court. It concluded that, on the facts, the situation [translation] “does not have the exceptional and rare quality
of an act that seriously undermines the authority of that court or that seriously
interferes with the administration of justice” (para. 11).
IV.
Issue
[15]
The only issue in this appeal is whether the
Superior Court was justified in awarding costs against the respondent
personally. What must be done to resolve it is, first, to determine the scope
of the courts’ power to impose such a sanction, the applicable criteria and the
process to be followed, next, to ascertain whether the criteria were properly
applied by the Superior Court judge and, finally, to determine whether the
intervention of the Court of Appeal was necessary.
V.
Analysis
A.
Awarding of Costs Against a Lawyer Personally
(1)
Power of the Courts
[16]
The courts have the power to maintain respect
for their authority. This includes the power to manage and control the
proceedings conducted before them (R. v. Anderson, 2014 SCC 41, [2014] 2
S.C.R. 167, at para. 58). A court therefore has an inherent power to
control abuse in this regard (Young v. Young, [1993] 4 S.C.R. 3, at
p. 136) and to prevent the use of procedure “in a way that would be manifestly
unfair to a party to the litigation before it or would in some other way bring
the administration of justice into disrepute”: Canam Enterprises Inc. v.
Coles (2000), 51 O.R. (3d) 481 (C.A.), at para. 55, per
Goudge J.A., dissenting, reasons approved in 2002 SCC 63, [2002] 3 S.C.R.
307. This is a discretion that must, of course, be exercised in a deferential
manner (Anderson, at para. 59), but it allows a court to “ensure
the integrity of the justice system” (Morel v. Canada, 2008 FCA 53,
[2009] 1 F.C.R. 629, at para. 35).
[17]
It is settled law that this power is possessed
both by courts with inherent jurisdiction and by statutory courts (Anderson,
at para. 58). It is therefore not reserved to superior courts but, rather,
has its basis in the common law: Myers v. Elman, [1940] A.C. 282 (H.L.),
at p. 319; M. Code, “Counsel’s Duty of Civility: An Essential
Component of Fair Trials and an Effective Justice System” (2007), 11 Can.
Crim. L.R. 97, at p. 126.
[18]
There is an established line of cases in which
courts have recognized that the awarding of costs against lawyers personally
flows from the right and duty of the courts to supervise the conduct of the
lawyers who appear before them and to note, and sometimes penalize, any conduct
of such a nature as to frustrate or interfere with the administration of
justice: Myers, at p. 319; Pacific Mobile Corporation v. Hunter
Douglas Canada Ltd., [1979] 1 S.C.R. 842, at p. 845; Cronier,
at p. 448; Pearl v. Gentra Canada Investments Inc., [1998] R.L. 581
(Que. CA), at p. 587. As officers of the court, lawyers have a duty to
respect the court’s authority. If they fail to act in a manner consistent with
their status, the court may be required to deal with them by punishing their
misconduct (M. Code, at
p. 121).
[19]
This power of the courts to award costs against
a lawyer personally is not limited to civil proceedings, but can also be
exercised in criminal cases (Cronier). This means that it may sometimes
be exercised against defence lawyers in criminal proceedings, although such
situations are rare: R. v. Liberatore, 2010 NSCA 26, 292 N.S.R. (2d) 69;
R. v. Smith (1999), 133 Man. R. (2d) 89 (Q.B.), at para. 43; Canada
(Procureur général) v. Bisson, [1995] R.J.Q. 2409 (Sup. Ct.); M. Code, at p. 122.
[20]
The power to control abuse of process and the
judicial process by awarding costs against a lawyer personally applies in
parallel with the power of the courts to punish by way of convictions for
contempt of court and that of law societies to sanction unethical conduct by
their members. Punishment for contempt is thus based on the same power the
courts have “to enforce their process and maintain their dignity and respect” (United
Nurses of Alberta v. Alberta (Attorney General), [1992]
1 S.C.R. 901, at p. 931). These sanctions are not mutually
exclusive, however. If need be, they can even be imposed concurrently in
relation to the same conduct.
[21]
This being said, although the criteria for an
award of costs against a lawyer personally are comparable to those that apply
to contempt of court (Cronier, at p. 449), the consequences are by
no means identical. Contempt of court is strictly a matter of law and can
result in harsh sanctions, including imprisonment. In addition, the rules of
evidence that apply in a contempt proceeding are more exacting than those that
apply to an award of costs against a lawyer personally, as contempt of court
must be proved beyond a reasonable doubt. Because of the special status of
lawyers as officers of the court, a court may therefore opt in a given
situation to award costs against a lawyer personally rather than citing him or
her for contempt (I. H. Jacob, “The Inherent Jurisdiction of the
Court” (1970), 23 Current Leg. Probs. 23, at pp. 46‑48).
[22]
As for law societies, the role they play in this
regard is different from, but sometimes complementary to, that of the courts.
They have, of course, an important responsibility in overseeing and sanctioning
lawyers’ conduct, which derives from their primary mission of protecting the
public (s. 23 of the Professional Code, CQLR, c. C‑26).
However, the judicial powers of the courts and the disciplinary powers of law
societies in this area can be distinguished, as this Court has explained as
follows:
The court’s authority is preventative — to
protect the administration of justice and ensure trial fairness. The
disciplinary role of the law society is reactive. Both roles are necessary to
ensure effective regulation of the profession and protect the process of the
court. [Emphasis deleted]
(R.
v. Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331, at para. 35)
[23]
The courts therefore do not have to rely on law
societies to oversee and sanction any conduct they may witness. It is up to the
courts to determine whether, in a given case, to exercise the power they have
to award costs against a lawyer personally in response to the lawyer’s conduct
before them. However, there is nothing to prevent the law society from
exercising in parallel its power to assess its members’ conduct and impose
appropriate sanctions.
[24]
In most cases, of course, the implications for a
lawyer of being ordered personally to pay costs are less serious than those of
the other two alternatives. A conviction for contempt of court or an entry in a
lawyer’s disciplinary record generally has more significant and more lasting
consequences than a one‑time order to pay costs. Moreover, as this appeal
shows, an order to pay costs personally will normally involve relatively small
amounts, given that the proceedings will inevitably be dismissed summarily on
the basis that they are unfounded, frivolous, dilatory or vexatious.
(2)
Applicable Criteria
[25]
While the courts do have the power to award
costs against a lawyer personally, the threshold for exercising it is a high
one. It is in fact rarely exercised, and the question whether it should be arises
only infrequently: Cronier; Young; R. v. 974649 Ontario Inc.,
2001 SCC 81, [2001] 3 S.C.R. 575, at para. 85; R. v. Trang, 2002
ABQB 744, 323 A.R. 297, at para. 481; Fearn v. Canada Customs, 2014
ABQB 114, 586 A.R. 23, at para. 121; Smith, at para. 43. Only
serious misconduct can justify such a sanction against a lawyer. Moreover, the
courts must be cautious in imposing it in light of the duties owed by lawyers
to their clients:
Moreover,
courts must be extremely cautious in awarding costs personally against a
lawyer, given the duties upon a lawyer to guard confidentiality of instructions
and to bring forward with courage even unpopular causes. A lawyer should not be
placed in a situation where his or her fear of an adverse order of costs may
conflict with these fundamental duties of his or her calling.
[Young,
at p. 136]
[26]
The type of conduct that can be sanctioned in
this way was analyzed in depth in Cronier. L’Heureux‑Dubé J.A.
concluded after reviewing the case law that the courts are justified in exercising
such a discretion in cases involving abuse of process, frivolous proceedings,
misconduct or dishonesty, or actions taken for ulterior motives, where the
effect is to seriously undermine the authority of the courts or to seriously
interfere with the administration of justice. She noted, however, that this
power must not be exercised in an arbitrary and unlimited manner, but rather
with restraint and caution. The motion judge in the case at bar properly relied
on Cronier, and the Court of Appeal also endorsed the principles stated
in it.
[27]
Several courts across the country have adopted
the requirement of conduct that represents a marked and unacceptable departure
from the standard of reasonable conduct expected of a player in the judicial
system: Bisson; R. v. Ciarniello (2006), 81 O.R. (3d) 561 (C.A.),
at para. 31; Leyshon‑Hughes v. Ontario Review Board, 2009
ONCA 16, 240 C.C.C. (3d) 181, at para. 62; Fearn, at
para. 119; Smith, at para. 58. Also, as the House of Lords
stated in a case that has been cited by Canadian courts, including in Cronier,
a mere mistake or error of judgment will not be sufficient to justify awarding
costs against a lawyer personally; there must at the very least be gross
neglect or inaccuracy (Myers, at p. 319).
[28]
There are in this Court’s jurisprudence
examples of conduct that has led to awards of costs being made against lawyers
personally. In Young, the Court held that such a sanction is justified
if “repetitive and irrelevant material, and excessive motions and applications,
characterized” the conduct in question and if this was the result of a lawyer’s acting “in bad faith in encouraging this abuse and delay”
(pp. 135‑36). In Pacific Mobile, the Court
awarded costs against a company’s solicitors personally in a bankruptcy case.
The solicitors had been granted a number of adjournments and had instituted
proceedings that were inconsistent with directions given by the trial judge. On
the issue of costs, Pigeon J. stressed that he did “not consider it fair
to make the debtor’s creditors bear the cost of proceedings which were not
instituted in their interest: quite the contrary”. He added that such an award
of costs, “far from appropriately discouraging unnecessary appeals occasioning
costly delays, tends on the contrary to favour them”
(p. 844). In the circumstances, he determined that “the Court should
[therefore] make use of its power to order costs payable by solicitors
personally” (p. 845).
[29]
In my opinion, therefore, 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. 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. Thus,
a lawyer may not knowingly use judicial resources for a purely dilatory purpose
with the sole objective of obstructing the orderly conduct of the judicial
process in a calculated manner.
[30]
This being said, however, it should be noted
that there are two important guideposts that apply to the exercise of this
discretion in a situation like the one in this appeal.
[31]
The first guidepost relates to the specific
context of criminal proceedings, in which the courts must show a certain
flexibility toward the actions of defence lawyers. In considering the
circumstances, the courts must bear in mind that the context of criminal
proceedings differs from that of civil proceedings. In criminal cases, the rule
is that costs are not awarded; no provision is made, for example, for awards of
costs where extraordinary remedies are sought (Cronier, at p. 447).
Awards of costs made against lawyers personally are therefore purely punitive
and do not include the compensatory aspect costs have in civil cases.
[32]
As well, 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. It is the very essence of the role of a defence lawyer
to challenge, sometimes forcefully, the decisions and arguments of other
players in the judicial system in light of the serious consequences they may
have for the lawyer’s client: Doré v. Barreau du Québec, 2012 SCC
12, [2012] 1 S.C.R. 395, at paras. 64‑66, citing Histed v. Law
Society of Manitoba, 2007 MBCA 150, 225 Man. R. (2d) 74, at
para. 71. Indeed, committed and zealous advocacy for clients’ rights and
interests and a strong and independent defence bar are essential in an
adversarial system of justice: Groia v. Law Society of Upper Canada,
2016 ONCA 471, 131 O.R. (3d) 1, at para. 129; P. J. Monahan,
“The Independence of the Bar as a Constitutional Principle in Canada”, in Law
Society of Upper Canada, ed., In the Public Interest: The Report and
Research Papers of the Law Society of Upper Canada’s Task Force on the Rule of
Law and the Independence of the Bar (2007), 117. If these conditions are
not met, the reliability of the process and the fairness of the trial will
suffer: R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 25, quoting R. v. Joanisse (1995), 102 C.C.C. (3d) 35 (Ont.
C.A.), at p. 57. In short, if costs are awarded
against a lawyer personally in criminal proceedings, the purpose must not be to
discourage the lawyer from defending his or her client’s rights and interests,
and in particular the client’s right to make full answer and defence. From this
point of view, the considerations to be taken into account in assessing the
conduct of defence lawyers can be different from those that apply in the case
of lawyers in civil proceedings.
[33]
The second guidepost requires a court to confine
itself to the facts of the case before it and to refrain from indirectly
putting the lawyer’s disciplinary record, or indeed his or her career, on
trial. The facts that can be considered in awarding costs against a lawyer
personally must generally be limited to those of the case before the court. In
its analysis, the court must not conduct an ethics investigation or seek to
assess the whole of the lawyer’s practice. It is not a matter of punishing the
lawyer “for his or her entire body of work”. To consider facts external to the
case before the court can be justified only for the limited purpose of
determining, first, the intention behind the lawyer’s actions and whether he or
she was acting in bad faith, and, second, whether the lawyer knew, on bringing
the impugned proceeding, that the courts do not approve of such proceedings and
that this one was unfounded.
[34]
In this regard, certain evidence that is
external to the case before the court may sometimes be considered, because it
is of high probative value and has a strong similarity to the alleged facts, in
order to establish, for example, wilful intent and knowledge on the lawyer’s
part. However, it must be limited to the specific issue before the court, that
is, the lawyer’s conduct. It may not serve more broadly as proof of a general
propensity or bad character (R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R.
908, at paras. 71, 72 and 82).
(3)
Process to be Followed
[35]
This being said, a court obviously cannot award
costs against a lawyer personally without following a certain process and
observing certain procedural safeguards (Y.‑M. Morissette,
“L’initiative judiciaire vouée à l’échec et la responsabilité de l’avocat ou de
son mandant” (1984), R. du B. 397, at p. 425). However, it is
important that this process be flexible and that it enable the courts to adapt
to the circumstances of each case.
[36]
Thus, a lawyer upon whom such a sanction may be
imposed should be given prior notice of the allegations against him or her and
the possible consequences. The notice should contain sufficient information
about the alleged facts and the nature of the evidence in support of those
facts. The notice should be sent far enough in advance to enable the lawyer to
prepare adequately. The lawyer should, of course, have an opportunity to make
separate submissions on costs and to adduce any relevant evidence in this
regard. Ideally, the issue of awarding costs against the lawyer personally
should be argued only after the proceeding has been resolved on its merits.
[37]
However, these protections differ from the ones
conferred by ss. 7 and 11 of the Canadian Charter of Rights and
Freedoms . Where an award of costs is sought against a lawyer personally,
the lawyer is not a “person charged with an offence” and the proceeding is not
a criminal one per se. Although the applicable criteria are strict, the
standard of proof is the balance of probabilities.
[38]
In closing, I note that the Crown’s role on this
specific issue must be limited in criminal proceedings. In such a situation, it
is of course up to the parties as well as the court to raise a problem posed by
a lawyer’s conduct. However, the Crown’s role is to objectively present the
evidence and the relevant arguments on this point. It is the court that is
responsible for determining whether a sanction should be imposed, and that has
the power to impose one, in its role as guardian of the integrity of the
administration of justice. The Crown must confine itself to its role as
prosecutor of the accused. It must not also become the prosecutor of the
defence lawyer.
B.
Application to the Facts of the Instant Case
(1)
Judgment of the Superior Court
[39]
In light of the foregoing, I am of the view that
the motion judge properly exercised his discretion in awarding costs against
the respondent personally.
[40]
The motion judge first correctly identified the
standard of conduct on which such an award is based and correctly summed up the
law in requiring that there be a [translation]
“frivolous proceeding that denotes a serious abuse of the judicial system” and
a “deliberate strategy” (para. 117).
[41]
Next, he properly analyzed the facts to find
that the respondent’s acts constituted abusive conduct that was designed to
indirectly obtain a postponement and had led to [translation] “paralysis of the legitimate work of the Court
of Québec” and “disruption of its local judges’ case management work”
(para. 119). He correctly distinguished an [translation] “unintended result” from a “deliberate
strategy” (para. 117). The judge cannot be faulted for choosing to
exercise his discretion in respect of a defence lawyer here.
[42]
As the judge noted, the respondent’s conduct in
the cases in question was particularly reprehensible. Its purpose was unrelated
to the motions he brought. The respondent was motivated by a desire to have the
hearing postponed rather than by a sincere belief that the judges targeted by
his motions were hostile. His subsequent conduct was consistent with this
finding. It is quite odd, if not unprecedented, for a lawyer to file, on the
same day and in the same cases, two series of motions for writs of prohibition
against two different judges on the same ground of bias. The respondent
thus used the extraordinary remedies for a purely dilatory purpose with the
sole objective of obstructing the orderly conduct of the judicial process in a
calculated manner. It was therefore reasonable for the judge to conclude that
the respondent had acted in bad faith and in a way that amounted to abuse of
process, thereby seriously interfering with the administration of justice.
[43]
Finally, the procedural safeguards were observed
in this case. The Crown sent the respondent two prior notices of its intention
to seek an award of costs against him personally. The respondent had more than
three months to prepare. The prosecution’s role was limited to notifying the
respondent of its intention to seek an award of costs against him personally
and presenting the relevant evidence to the judge. The respondent had an
opportunity to make submissions to the judge in this regard. Moreover, he
raised no objection to the process or to the evidence adduced on the issue of
costs. Nor did he insist on being represented by counsel or ask that the issue
of costs be dealt with separately from the merits of the motions.
[44]
That being the case, I do not accept the
respondent’s criticisms to the effect that the judge improperly relied on
inadmissible similar fact evidence. On the contrary, I note that the judge’s
findings were based on admissible evidence that supported his analysis on the
respondent’s intention and knowledge:
[translation] His preparation, at
lunchtime on April 23, 2013, of a series of motions for writs of
prohibition in a legal situation that did not call for such a proceeding, and
the continued presentation of those proceedings, were two calculated acts
that did not result from ignorance of the law on the part of Mr. Jodoin,
an able tactician who defends his clients forcefully when he is before the
Court. [Emphasis added; para. 118]
[45]
For this purpose, the judge focused primarily on
evidence specific to the cases before him. He discussed the specific
circumstances that led to the preparation of the motions for writs of
prohibition. He reviewed in detail the transcript of the hearing that had
culminated in the postponement being granted by the Court of Québec judge. And
he considered the respondent’s conduct in the broader context of the motions
for which he was ordered to pay costs personally.
[46]
It is true that the judge took note of certain
facts from other cases in which the respondent had been involved, as the Crown
had invited him to do with no objection from the respondent. However, the judge
considered those facts to be [translation]
“relevant to the determination of whether [the respondent’s] motions are frivolous
and dilatory and whether an award of costs must be made against him personally,
and in what amount” (para. 109). He found that this evidence was relevant
to his analysis on whether the respondent had had culpable intent to file and
present a proceeding that he knew to be frivolous and abusive. The judge
referred to it in determining, among other things, that the impugned conduct
was a deliberate strategy on the respondent’s part and not an unintended
result.
[47]
In this regard, the judge was justified in
referring to motions for writs of prohibition that had been filed in 2011
against one of the two Court of Québec judges concerned in the 2013 motions
(paras. 22‑27). The motions from 2011 were all dismissed in a
judgment that was subsequently affirmed by the Court of Appeal (R. v. Carrier,
2012 QCCA 594). In that case, the respondent had sought writs of prohibition in
relation to a refusal by the judge in question to allow the withdrawal of a
motion for the disclosure of evidence. In its judgment, the Court of Appeal
mentioned that a court can review a party’s decision to withdraw a proceeding,
especially where the goal is to obtain a postponement. It concluded that the
alleged apprehension of bias on the judge’s part was without merit, because [translation] “although the judge was
overly interventionist, the fact remains that there is no reason to doubt his
impartiality” (para. 4).
[48]
As the motion judge observed, there is a strong
similarity between those motions from 2011 and the 2013 motions in terms
of the facts, the decisions being challenged, the procedures that were chosen
and the nature of the exchanges between the respondent and the judge in
question. This could support findings that the respondent’s actions were
calculated and intentional and that he had knowledge of the applicable legal
rules and had deliberately ignored them. It could be concluded from this
relevant evidence that the respondent was well aware of the invalidity of the
extraordinary remedy he had chosen to seek and of the foreseeable consequences
of his actions, the modus operandi of which was similar to that of 2011.
This was not improper evidence of a general propensity or bad character, but
admissible evidence of the respondent’s state of mind when he filed the
proceedings.
[49]
As regards the respondent’s argument that the
judge wanted to make an example of his case in the district in question, I am
of the view that there is not really any support for it. That is certainly not
what the judge said at para. 11 of his reasons. Moreover, it is clear from
his reasons as a whole that he did not rely either on that factor or on the
specific context of the district to support his conclusions. As can be seen
from his analysis, he objectively had enough evidence to justify awarding costs
against the respondent personally on the basis of the specific facts of the
case before him.
(2)
Judgment of the Court of Appeal
[50]
In this context, the Court of Appeal was in my
view wrong to choose to substitute its own opinion for that of the Superior
Court on this issue. In fact, the Court of Appeal reassessed the facts before
concluding that the situation before the Superior Court did not have the
exceptional character required in the case law. And it did so despite having
acknowledged that the motion judge had, after thoroughly analyzing the facts,
been right to dismiss the motions for writs of prohibition he had found to be
frivolous, unfounded and abusive.
[51]
It was not open to the Court of Appeal to
intervene without first identifying an error of law, a palpable and overriding
error in the motion judge’s analysis of the facts, or an unreasonable or
clearly wrong exercise of his discretion. It did not identify such an error.
This Court, too, is subject to this standard for intervention (St‑Jean
v. Mercier, 2002 SCC 15, [2002] 1 S.C.R. 491, at para. 46).
Furthermore, given its position at the second level of appeal, this Court’s
role is not to reassess the findings of fact of a judge at the trial level that
an appellate court has not questioned: “. . . the principle of non‑intervention
‘is all the stronger in the face of concurrent findings of both courts below’
. . .” (ibid., at para. 45, quoting Ontario (Attorney
General) v. Bear Island Foundation, [1991] 2 S.C.R. 570, at p. 574
(emphasis deleted)).
[52]
It is well established that costs are awarded on
a discretionary basis: Hamilton v. Open Window Bakery Ltd., 2004
SCC 9, [2004] 1 S.C.R. 303, at para. 27; Galganov v. Russell
(Township), 2012 ONCA 410, 294 O.A.C. 13, at paras. 23‑25. In a
case involving an exercise of discretion, an appellate court must show great
deference and must be cautious in intervening, doing so only where it is
established that the discretion was exercised in an abusive, unreasonable or
non‑judicial manner: Trackcom Systems International Inc. v. Trackcom
Systems Inc., 2014 QCCA 1136, at para. 36
(CanLII); Québec (Procureur général) v. Bélanger, 2012 QCCA 1669, 4
M.P.L.R. (5th) 21. In its brief judgment, the Court of
Appeal did not specify an error of any kind whatsoever in the motion judge’s
reasons that would justify its intervention.
[53]
As for the comment that the Superior Court
should not have exercised its jurisdiction in relation to facts or conduct that
had occurred in a court that itself had the power to punish the respondent for
contempt of court, I believe that it reflects a misunderstanding of the
situation. Costs are in order in this case because of the frivolous and abusive
nature of the motions for writs of prohibition that were heard and dismissed by
the Superior Court. It was the Superior Court that had the discretion to
determine whether the costs of those motions should be awarded against the
respondent.
VI.
Conclusion
[54]
In the final analysis, the Superior Court judge
addressed the valid concerns voiced by the Crown, which he summarized as
follows:
[translation] Take a more rigorous
approach to the criminal law, fight tooth and nail for your clients, be
demanding of the prosecution so that it makes its entire case competently, but
face the music so that, in an overburdened judicial system in which each
person’s time must be used sparingly and efficiently, cases move forward.
[Emphasis deleted, para. 11.]
[55]
The judge sent a clear message to the players in
the judicial system, in terms that were once again unequivocal, by denouncing
actions and decisions that had led to an unjustified paralysis of the
legitimate work of courts sitting in criminal proceedings and to the disruption
of the management of cases by their judges, and by sanctioning an abuse of
process whose sole purpose had been to obtain a postponement and delay cases.
[56]
The judge’s comments were consistent with the
principles recently enunciated by this Court in R. v. Jordan, 2016 SCC
27, [2016] 1 S.C.R. 631, in which the majority denounced, among other things,
the culture of complacency toward delay that impairs the efficiency of the
criminal justice system. In Jordan, the Court emphasized the importance
of timely justice and noted that all participants in the criminal justice
system must co‑operate in achieving reasonably prompt justice. From this
perspective, it is essential to allow the courts to play their role as
guardians of the integrity of the administration of justice by controlling
proceedings and eliminating unnecessary delay. That is what the Superior Court
did here.
[57]
I would therefore allow the appeal and restore
the award of costs against the respondent.
The following are the reasons delivered by
Abella and Côté JJ. —
[58]
We agree that superior courts have, in theory, the power to award costs
personally against counsel in the criminal context in exceptional circumstances.
Justice Gascon, drawing on caselaw from both the civil and criminal context,
has set out an excellent summary of the relevant principles. In our respectful
view, however, the test was not met in this case. As noted by the Quebec Court
of Appeal:
[translation]
The situation in the Quebec Superior Court . . . as regards the conduct of the
appellant . . . does not have the exceptional and rare quality of an act
that seriously undermines the authority of that court or that seriously
interferes with the administration of justice. [Emphasis
added; footnote omitted.]
(2015 QCCA 847, at para. 11 (CanLII))
[59]
The exceptional nature of personal costs orders was emphasized by this
Court in Young v. Young, [1993] 4 S.C.R. 3:
. . . courts must be extremely cautious in awarding
costs personally against a lawyer, given the duties upon a lawyer to guard
confidentiality of instructions and to bring forward with courage even
unpopular causes. A lawyer should not be placed in a situation where his or
her fear of an adverse order of costs may conflict with these fundamental
duties of his or her calling. [p. 136]
[60]
These concerns are magnified in the criminal context. In R. v. Gunn,
2003 ABQB 314, 335 A.R. 137, the Court of Queen’s Bench of Alberta highlighted
the chilling effect that personal costs orders could have on criminal defence
counsel, where Langston J. observed:
. . . to sanction defence counsel in the course of their
duties of protecting the criminally accused could have a chilling effect on
counsel’s ability to properly and zealously defend their client against all the
powers that a state has to wield against them. [para. 50]
[61]
The more appropriate response, if any, is to seek a remedy from the law
society in question. As Michael Code observed, disciplinary processes present
advantages over awards of costs:
A useful
intermediate remedy, when repeated injunctions and reprimands have failed to
put an end to counsel’s “incivility,” is for the trial judge to report the
offending counsel to the Law Society. This is the remedy that was adopted by
the B.C. Court of Appeal in R. v. Dunbar et al. and it was only
exercised at the end of the hearing, when the Court delivered its Judgment. The
great value of this remedy, before resorting to more punitive sanctions such as
costs orders and contempt citations, is that it does not disrupt the trial and
it does not cause prejudice to the client of the offending counsel. When
the misconduct escalates to the point that costs and contempt remedies are
under consideration, the lawyer is entitled to a hearing and the trial will
inevitably be disrupted. By simply reporting the lawyer’s misconduct to the Law
Society, the court is able to escalate the available remedies without the need
to conduct its own hearing into the alleged “incivility.” Furthermore, the
client may not be complicit in the lawyer’s “incivility” and should not bear
the cost or the prejudice of a hearing to consider sanctions against the
lawyer. [Footnote omitted; emphasis added.]
(Michael Code, “Counsel’s Duty of Civility: An
Essential Component of Fair Trials and an Effective Justice System” (2007), 11 Can.
Crim. L.R. 97, at p. 119)
[62]
This forms the policy basis for why the threshold is so high before
ordering costs against criminal defence counsel. Only in the most exceptional
of circumstances should they be ordered. Given the policy concerns and the
exceptional nature of costs orders against defence counsel, it is worth
emphasizing that the Crown should be very hesitant about pursuing them.
[63]
We do not challenge the motion judge’s finding that the writs of
prohibition were requested for the purpose of postponing the proceedings and
that the motions seeking the writs may not have had a solid legal foundation.
Like the Court of Appeal, however, we are of the view that Mr. Jodoin’s
behaviour did not warrant the exceptional remedy of a personal costs order.
[64]
It appears that Mr. Jodoin’s conduct in this case was not unique in the
district of Bedford, as reflected in the motions judge’s comment that: [translation] “In seeking a personal
costs order against Mr. Jodoin, the prosecution wants to send a message to
certain defence lawyers” (2013 QCCS 4661, at para. 11 (CanLII)). This suggests
that Mr. Jodoin was being punished as a warning to other lawyers engaged in
similar tactics. The court ordered costs against Mr. Jodoin personally for a
total of $3000.
[65]
The desire to make an “example” of Mr. Jodoin’s behaviour does not
justify straying from the legal requirement that his conduct be “rare and exceptional”
before costs are ordered personally against him.
[66]
Logically, the idea that costs should only be ordered against a lawyer
personally in rare and exceptional circumstances cannot be reconciled with the
fact that other defence counsel appear to have engaged in similar conduct.
[67]
Mr. Jodoin has certainly not engaged in conduct we would commend. But to
the extent that his behaviour was not unique in the district of Bedford, it is
hard to see how it would amount to “dishonest or malicious misconduct” that would
justify awarding costs personally against him (reasons of Gascon J., at para.
29).
[68]
Moreover, we are not persuaded that Mr. Jodoin’s motions for writs of
prohibition were unfounded to a sufficient degree to attract a personal costs
order. The Superior Court concluded that Mr. Jodoin had filed those motions
only for the purpose of obtaining an adjournment. This, however, does not take
full account of the context of the proceedings, where one of the grounds raised
involved the application of s. 657.3(3) of the Criminal Code,
R.S.C. 1985, c. C-46 .
[69]
This provision states that “a party who intends to call a person as an
expert witness shall, at least thirty days before the commencement of the trial
or within any other period fixed by the justice or judge, give notice to the
other party or parties of his or her intention to do so”. Crown counsel
intending to call an expert witness also has to provide a copy of the expert
witness’s report or a summary of the opinion anticipated to be given by the
expert witness to the other party within a reasonable period before trial
(s. 657.3(3) (b)).
[70]
If notice is not given, s. 657.3(4) states that
(4) . . . the court shall, at the
request of any other party,
(a) grant an
adjournment of the proceedings to the party who requests it to allow him or her
to prepare for cross-examination of the expert witness;
(b) order
the party who called the expert witness to provide that other party and any
other party with the material referred to in paragraph (3)(b); and
(c) order the
calling or recalling of any witness for the purpose of giving testimony on
matters related to those raised in the expert witness’s testimony, unless the
court considers it inappropriate to do so.
[71]
The Crown had not provided Mr. Jodoin with the required notice. When Mr.
Jodoin sought the adjournment to which he was entitled under s. 657.3(4) , the
judge presiding in the Court of Québec granted him a brief one over the lunch
break. And, in refusing the requested adjournment, the judge mistakenly said
that Mr. Jodoin had already cross-examined the Crown’s expert witness in other
matters.
[72]
This is the context in which Mr. Jodoin filed his motions for writs of
prohibition after the lunch hour.
[73]
Mr. Jodoin now concedes, based on other decisions rendered subsequently
in similar matters, that he ought not to have used motions for writs of
prohibition in response to the court’s refusal to grant the requested
adjournment. But it is also undisputed that the Crown did not in fact give
proper notice and that Mr. Jodoin was, as a result, entitled to an
adjournment.
[74]
In the circumstances, Mr. Jodoin’s filing of motions for writs of
prohibition for the purpose of suspending the proceedings can easily be seen as
an error of judgment, but hardly one justifying a personal costs order.
[75]
For these reasons, we would dismiss the appeal.
Appeal
allowed, Abella and Côté
JJ. dissenting
Solicitor
for the appellant: Director of Criminal and Penal Prosecutions, Québec.
Solicitors
for the respondent: Jodoin & Associés, Granby.
Solicitor
for the intervener the Director of Public Prosecutions: Public Prosecution
Service of Canada, Montréal.
Solicitors
for the intervener the Criminal Lawyers’ Association (Ontario): Schurman
Longo Grenier, Montréal; Goldblatt Partners, Toronto.
Solicitors for the intervener Association des avocats de la défense
de Montréal: Walid Hijazi, Montréal; Desrosiers, Joncas, Nouraie,
Massicotte, Montréal.
Solicitors for the intervener the Trial Lawyers Association of
British Columbia: Blake, Cassels & Graydon, Vancouver.
Solicitors for the
intervener the Canadian Civil Liberties Association: Addario Law Group,
Toronto; Stockwoods, Toronto.