In a decision that was unsettling to many lawyers – Quebec (DCPP) v. Jodoin  1 SCR 478 – the Supreme Court of Canada upheld a lower court’s decision to award costs against a lawyer personally in a criminal proceeding.
In April 2013, a criminal lawyer Jodoin, was representing ten clients charged with impaired driving, and other charges. There were twelve cases and they were jointly scheduled for a hearing in the Court of Quebec on a motion for disclosure of evidence. On the morning of the hearing, Jodoin had the office of the Superior Court stamp a series of motions for writs of prohibition in which he challenged the jurisdiction of the judge who was to preside over the hearing, alleging bias on the judge’s part. As an experienced criminal lawyer, Jodoin knew that the filing of such motions would result in the immediate postponement of the hearing until the Superior Court had ruled on them.
However, the same morning before the motions were served, the parties learned that another judge would be presiding over the hearing instead. As the hearing began, the Crown stated that it would call an expert witness. Jodoin objected on the ground that he had not received the notice required under the Criminal Code and requested an adjournment. Instead, the judge heard the parties on the issue and decided to authorize an examination of the expert after the lunch break. During the break, Jodoin chose instead to prepare a new series of motions for writs of prohibition, this time challenging the second judge’s jurisdiction and again alleging bias on the part of the judge. After service of the motions, the judge had no choice but to suspend the hearing.
The Crown attorney believing that the sole purpose of the motions was to obtain an adjournment, objected, and told Jodoin that he intended to seek an award of costs against him personally for delay and abuse of process.
In the Superior Court, a judge found that Jodoin's motions were unfounded and frivolous in that they were of questionable legal value for an experienced lawyer such as Jodoin. On the issue of costs against Jodoin personally, he concluded that Jodoin’s conduct satisfied the applicable criteria and ordered that he pay costs of $3,000 or $250 per case.
The Court of Appeal affirmed the Superior Courts judgment on the dispositions of the motions but allowed Jodoin’s appeal to set aside the award of costs against him personally.
The Supreme Court of Canada (on a 7 – 2 majority) allowed the Crown’s appeal and restored the award of costs against Jodoin.
The majority decision was delivered by Justice Gascon. The majority found that the courts have the power to maintain respect for their authority. A court has an inherent power to control abuse and to prevent the use of procedure in a way that would be manifestly unfair to a party to the litigation before it would bring the administration of justice into disrepute.
The awarding of costs against lawyers personally flows from the right and the duty of the courts to supervise the conduct of the lawyers who appear before them and sometimes penalize conduct of such a nature as to frustrate or interfere with the administration of justice. This power can be exercised in criminal cases, which means it can be exercised against defence lawyers.
The threshold for exercising the court’s discretion to award costs against a lawyer personally is high. It can be justified only in exceptional circumstances 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 the 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 conduct on the lawyer’s part that is deliberate.
There are two important “guideposts” that apply to the exercise of this discretion. The first relates to the specific context of criminal proceedings. The courts must show a certain flexibility towards the actions of defence lawyers, whose role is not comparable in every respect to that of a lawyer in a civil case. Costs against a lawyer personally must not be to discourage the lawyer from defending his or her client’s rights or interest and the client’s right to make a full answer in defence. Secondly, the guidepost requires a court to confine itself to the facts of the case and to refrain from indirectly putting the lawyer's disciplinary record or his or her career on trial.
Before imposing the sanction, the lawyer must be given prior notice of the allegations against him and the possible consequences. The lawyer should have an opportunity to make separate submissions on the issue and to adduce an relevant evidence. The applicable standard of proof is the balance of probabilities.
In this case, the majority found that the circumstances were exceptional. It found that Jodoin’s conduct was “particularly reprehensible”. His conduct 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. He thus used the motions 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 he acted in bad faith and in a way that amounted to an abuse of process thereby seriously interfering with the administration of justice.
Two justices (Justices Abella and Côté) dissented. They held that costs awards against a lawyer personally are exceptional and, in particular 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 be only issued in the most exceptional circumstances and the Crown should be very hesitant about pursuing them.
The dissenting judges held that in this case, it appears that Jodoin’s 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 his behaviour does not justify straying from the legal requirement that his conduct should be rare and exceptional before costs are awarded against him personally. In addition, it was arguable that this tactic of trying to delay the hearing to obtain more time to cross-examine the expert, was a strategic one. The Crown had not provided Jodoin with the requisite notice for the expert report and the presiding judge only granted him a brief one over the lunch break and mistakenly said that Jodoin had already cross-examined the Crown’s expert when that was not the case.
Given the facts emphasized by the dissenting judges, it is apparent that criminal defence lawyers will now need to take a hard look at the perceived bona fides of strategies they may use to assist them to prepare their clients' cases.