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Justice Clement Gascon, writing for the majority, said the judge who ordered the costs award had sent a clear message that abusive conduct will not be tolerated. (Adrian Wyld/THE CANADIAN PRESS)
Justice Clement Gascon, writing for the majority, said the judge who ordered the costs award had sent a clear message that abusive conduct will not be tolerated. (Adrian Wyld/THE CANADIAN PRESS)

Lawyers who delay trials liable for costs, Supreme Court rules Add to ...

The Supreme Court of Canada says judges have the power to punish criminal defence lawyers who try to delay trials by ordering them to pay the financial costs of the delay.

The 7-2 ruling came in a case involving veteran lawyer Robert Jodoin of Granby, Que. In 2013, a Quebec Superior Court judge had awarded court costs of $3,000 against Mr. Jodoin, at a prosecutor’s request, after he tried to have two separate judges recused for bias on the same day, and made a flurry of other motions. The Superior Court judge said he had committed abusive conduct in an attempt to obtain a postponement of the trials of 12 people facing drunk-driving charges. The Quebec Court of Appeal threw out the costs award, saying the lawyer’s behaviour was not so rare and exceptional as to deserve the punishment.

But the Supreme Court majority said judges have the authority to combat the problem of delay, and appeal courts should not interfere in the exercise of that unless the lower-court judges act unreasonably.

Justice Clément Gascon, writing for the majority, said the judge who ordered the costs award had sent a clear message to the players in the judicial system that abusive conduct will not be tolerated. Justice Gascon cited the Supreme Court’s ruling in a case from last summer known as R v Jordan, an attempt to tackle the problem of clogged courts and years-long trials. The Jordan ruling created strict time limits for criminal trials, resulting in upheaval in the justice system in which, among other things, courts have dismissed charges against four men accused of murder over unreasonable delay.

“The judge’s comments were consistent with the principles recently enunciated by this Court in R. v. Jordan, in which the majority denounced, among other things, the culture of complacency toward delay that impairs the efficiency of the criminal justice system,” Justice Gascon wrote. He added that the cost awards will usually be small, because judges will dismiss the abusive attempts at delay quickly.

Several intervenor groups, including the Criminal Lawyers Association, had sought to persuade the court that defence lawyers need manoeuvring room to defend their clients aggressively without fear of financial punishment.

Frank Addario, a Toronto lawyer who represented the Canadian Civil Liberties Association, said the ruling could have a chilling effect on defence lawyers. Five judges out of the 13 who heard this case said the behaviour was not exceptional enough to deserve punishment (three appeal court judges and two on the Supreme Court), he said, so the standard expected from lawyers is unclear.

“How is a defence lawyer who is told, ‘Be courageous, fight as hard as possible, make every argument,’ supposed to know?” he said in an interview. “I’m afraid young defence lawyers, reading that, will tilt toward timidity: ‘I won’t raise novel arguments.’”

Justice Rosalie Abella and Justice Suzanne Côté, writing in dissent, said they agreed with the majority that courts can order costs against lawyers who abuse the rules, but said they also agreed with the Quebec appeal court that Mr. Jodoin’s actions, while improper, were not exceptional. Some of what Mr. Jodoin sought to do was reasonable, they said.

“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,” the two dissenting judges wrote.

Mr. Jodoin could not be reached for comment.

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