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 22 nd, 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 well- being 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 non- payment 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?