Cunningham v. Lilles et al., (2010) 283 B.C.A.C. 280 (SCC)

• Judge: McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.
• Court: Supreme Court (Canada)
• Case Date: November 17, 2009
• Jurisdiction: Canada (Federal)
• Citations: (2010), 283 B.C.A.C. 280 (SCC);2010 SCC 10;480 WAC 280;283 BCAC 280;399 NR 326;EYB 2010-171414;JE 2010-626;87 WCB (2d) 70;[2010] SCJ No 10 (QL);73 CR (6th) 1;317 DLR (4th) 1;[2010] ACS no 10;254 CCC (3d) 1;[2010] EXP 1163;[2010] 1 SCR 331

Cunningham v. Lilles (2010), 283 B.C.A.C. 280 (SCC);

    480 W.A.C. 280

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2010] B.C.A.C. TBEd. MR.063

Her Majesty The Queen (appellant) v. Jennie Cunningham (respondent) and Attorney General of Ontario, Law Society of British Columbia, Law Society of Yukon, Canadian Bar Association and Criminal Lawyers' Association (Ontario) (intervenors)

(32760; 2010 SCC 10; 2010 CSC 10)

Indexed As: Cunningham v. Lilles et al.

Supreme Court of Canada

McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.

March 26, 2010.

Summary:

Cunningham, a criminal defence lawyer employed by the Yukon Legal Services Society (Legal Aid), represented an accused charged with sexual offences against a child. Prior to the preliminary inquiry, the accused failed to update his financial information, resulting in the suspension of his legal aid funding. Legal Aid informed him that Cunningham was no longer authorized to represent him. Cunningham promptly applied to withdraw as counsel of record on account of the suspension of the legal aid funding and the accused's inability to otherwise pay for legal services.

The Yukon Territorial Court, in a decision reported at 2006 YKTC 61, refused to grant the application. Cunningham applied for certiorari, seeking to quash the order.

The Yukon Supreme Court, in a decision reported at [2006] Yukon Cases (SC) 40; 2006 YKSC 40, held that the territorial court judge did not exceed his jurisdiction and dismissed the certiorari application. Cunningham appealed.

The Yukon Court of Appeal, in a decision reported at (2008), 257 B.C.A.C. 1; 432 W.A.C. 1, found that the issue had become moot as a trial of the charges had become unnecessary. The appeal nevertheless proceeded in order to obtain appellate court guidance on the legal issue. The court allowed the appeal, finding that: (1) the law society had the primary interest in lawyer regulation; (2) court supervision of withdrawal threatened solicitor-client privilege; and (3) compelled representation put counsel in the position of a perceived or actual conflict of interest. The Crown appealed.

The Supreme Court of Canada allowed the appeal. A court had the authority to control its own process and to supervise counsel, who were officers of the court. The Yukon Supreme Court correctly concluded that the Yukon Territorial Court had the jurisdiction to refuse to grant counsel's request to withdraw. That jurisdiction, however, should be exercised exceedingly sparingly. It was not appropriate to refuse withdrawal where an adjournment would not be necessary, nor where counsel sought withdrawal for ethical reasons. Where counsel sought untimely withdrawal for non-payment of fees, the court must weigh the relevant factors and determine whether withdrawal would cause serious harm to the administration of justice.

Barristers and Solicitors - Topic 1543

Relationship with client - Duty to client - General - Legal aid lawyers - [See tenth Barristers and Solicitors - Topic 1588 ].

Barristers and Solicitors - Topic 1588

Relationship with client - Termination of relationship - Withdrawal by lawyer - Criminal cases - The Supreme Court of Canada stated that "[a]n accused has an unfettered right to discharge his or her legal counsel at any time and for any reason. A court may not interfere with this decision and cannot force counsel upon an unwilling accused ... Counsel, on the other hand, does not have an unfettered right to withdraw. The fiduciary nature of the solicitor-client relationship means that counsel is constrained in his or her ability to withdraw from a case once he or she has chosen to represent an accused. These constraints are thoroughly outlined in the rules of professional conduct issued by the provincial or territorial law societies" - This appeal raised the issue of whether a court's jurisdiction to control its own process imposed a further constraint on counsel's ability to withdraw - In the end result, the court concluded that a court did have the authority to refuse counsel's request to withdraw for "non-payment of legal fees" - See paragraphs 8 and 9.

Barristers and Solicitors - Topic 1588

Relationship with client - Termination of relationship - Withdrawal by lawyer - Criminal cases - The Supreme Court of Canada considered the two lines of provincial and territorial appellate court reasoning on the issue of whether a criminal court had the authority to refuse to grant counsel's request to withdraw for non-payment of legal fees - "The British Columbia and Yukon Courts of Appeal have determined that a court has no authority to prevent criminal defence counsel from withdrawing for non-payment of legal fees [stemming from the British Columbia Supreme Court decision in Re Leask and Cronin]. The Alberta, Saskatchewan, Manitoba, Ontario, and Quebec Courts of Appeal have taken the opposite position - a court may refuse counsel's request to withdraw. Trial courts in New Brunswick and Newfoundland have also followed this line of authority" - In the end result, the court concluded that a criminal court did have the authority to refuse to grant counsel's request to withdraw - The authority to supervise the conduct of counsel fell within the inherent or necessarily implied jurisdiction of the court - See paragraphs 10 to 16.

Barristers and Solicitors - Topic 1588

Relationship with client - Termination of relationship - Withdrawal by lawyer - Criminal cases - The Supreme Court of Canada stated the following reasons in favour of a criminal court exercising its inherent or necessarily implied jurisdiction to control its own process by overseeing lawyer withdrawal - "An accused, who becomes unable to pay his lawyer, may be prejudiced if he is abandoned by counsel in the midst of criminal proceedings. Proceedings may need to be adjourned to allow the accused to obtain new counsel. This delay may prejudice the accused, who is stigmatized by the unresolved criminal charges and who may be in custody awaiting trial. It may also prejudice the Crown's case. Additional delay also affects complainants, witnesses and jurors involved in the matter, and society's interest in the expedient administration of justice. Where these types of interests are engaged, they may outweigh counsel's interest in withdrawing from a matter in which he or she is not being paid" - See paragraph 22.

Barristers and Solicitors - Topic 1588

Relationship with client - Termination of relationship - Withdrawal by lawyer - Criminal cases - A preliminary inquiry judge refused to grant a lawyer's request to withdraw on account of the suspension of the legal aid funding and the accused's inability to otherwise pay for legal services - The Supreme Court of Canada addressed the argument that solicitor-client privilege could be violated simply by disclosure of the mere fact that an accused had not paid his/her fees - While concern was warranted, such disclosure "does not normally touch on the rationale for solicitor-client privilege in the criminal context" - In the present case, non-payment of fees was not linked to the merits of the matter and disclosure of non-payment would not cause prejudice to the accused - However, "[w]here payment or non-payment of fees is relevant to the merits of the case, or disclosure of such information may cause prejudice to the client, solicitor-client privilege may attach. Disclosure of non-payment of fees in cases where it is unrelated to the merits and will not cause prejudice to the accused is not an exception to privilege ... Rather, non-payment of legal fees in this context does not attract the protection of solicitor-client privilege in the first place. However, nothing in these reasons ... should be taken as affecting counsel's ethical duty of confidentiality with respect to payment or non-payment of fees in other contexts" - See paragraphs 25 to 31.

Barristers and Solicitors - Topic 1588

Relationship with client - Termination of relationship - Withdrawal by lawyer - Criminal cases - The Supreme Court of Canada addressed the argument that solicitor-client privilege could be violated by counsel inadvertently disclosing privileged information when explaining the reasons for withdrawal and answering questions from a judge about the reasons for withdrawal - The court agreed that the exchange initiated by the provincial court judge in Leask v. Cronin (B.C.) was inappropriate and unacceptable, where the judge repeatedly pressed counsel for detailed reasons for withdrawal - "However, lawyers are presumed to know and respect their professional obligations. Judges are presumed to know the law ... The integrity of the administration of justice rests on these assumptions. ... The remote possibility that a judge will inappropriately attempt to elicit privileged information in hearing the application does not justify leaving the decision to withdraw exclusively to counsel" - See paragraphs 32 to 34.

Barristers and Solicitors - Topic 1588

Relationship with client - Termination of relationship - Withdrawal by lawyer - Criminal cases - At issue was whether a criminal court had the authority to refuse counsel's request to withdraw for non-payment of legal fees - The Supreme Court of Canada held that a criminal court had the authority to require counsel to continue to represent the accused - The court rejected the argument that oversight of lawyer withdrawal fell exclusively to the law societies - "The law societies play an essential role in disciplining lawyers for unprofessional conduct; however, the purpose of the court overseeing withdrawal is not disciplinary. 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 ... Both the courts and the law societies play different, but important, roles in regulating withdrawal: the courts prevent harm to the administration of justice and the law societies discipline lawyers whose conduct falls below professional standards. They are not mutually exclusive" - See paragraphs 35 to 38.

Barristers and Solicitors - Topic 1588

Relationship with client - Termination of relationship - Withdrawal by lawyer - Criminal cases - At issue was the role of a court when defence counsel, in a criminal matter, wished to withdraw because of non-payment of legal fees - The Supreme Court of Canada held that a criminal court did have the authority to require counsel to continue to represent the accused - The court rejected the argument that court supervision over lawyer withdrawal threatened the independence of the bar - "[L]awyers are intimately involved in the administration of justice" - An exceptional constraint on counsel, necessary to protect the integrity of the administration of justice, did not threaten counsel's independence - Further, court oversight of lawyer withdrawal had been the practice in Alberta at least since the decision in R. v. D.D.C. in 1996, and there was no suggestion that the practice affected the independence of the Alberta bar - Finally, all law society rules recognized that an independent bar had obligations beyond those owed to clients - "Lawyers must comply with their professional obligations to the administration of justice and the public; these obligations do not undermine counsel's independence" - See paragraph 39.

Barristers and Solicitors - Topic 1588

Relationship with client - Termination of relationship - Withdrawal by lawyer - Criminal cases - A criminal defence lawyer sought to withdraw for the non-payment of legal fees - The Supreme Court of Canada was unpersuaded by the argument that forcing unwilling counsel to continue might create a conflict between the client's and lawyer's interests; specifically, that where counsel was compelled to work for free, he/she might be tempted to give legal advice which would expedite the process in order to cut counsel's financial losses, even though it might not be in an accused's best interests - "Where the court requires counsel to continue to represent an accused, counsel must do so competently and diligently. Both the integrity of the profession and the administration of justice require nothing less" - See paragraph 40.

Barristers and Solicitors - Topic 1588

Relationship with client - Termination of relationship - Withdrawal by lawyer - Criminal cases - The Supreme Court of Canada commented, in obiter dicta, that if a Rowbotham order were available, it would be relevant to the court's decision on whether to decline to grant counsel's request to withdraw - "That said, a Rowbotham order could not be a complete substitute to the court's authority to refuse counsel's request to withdraw. As stated by the Ontario Court of Appeal [in Rowbotham, and later in R. v. Rushlow, 2009] a Rowbotham order is intended to ensure that an accused receives a fair trial; it does not account for the interests of any other party or person affected by the proceeding. Thus, if delay in the proceedings or the affect on others is the determinative factor in an application for withdrawal for non-payment of fees, a Rowbotham order does nothing to address this concern and may even exacerbate it. A Rowbotham order requires a separate motion where an accused must satisfy rigorous criteria in order to succeed. A Rowbotham order might be relevant to the court's residual discretion to refuse withdrawal, but it cannot operate as a replacement to it" - See paragraphs 41 to 43.

Barristers and Solicitors - Topic 1588

Relationship with client - Termination of relationship - Withdrawal by lawyer - Criminal cases - Criminal defence counsel applied to withdraw as counsel of record on account of the suspension of the legal aid funding and the accused's inability to otherwise pay for legal services - The Supreme Court of Canada stated that counsel's arguments did not support "a wholesale denial of the court's jurisdiction to refuse counsel's request to withdraw. That being said, ordering counsel to work for free is not a decision that should be made lightly. Though criminal defence counsel may be in the best position to assess the financial risk in taking on a client, only in the most serious circumstances should counsel alone be required to bear this financial burden. In general, access to justice should not fall solely on the shoulders of the criminal defence bar and, in particular, legal aid lawyers. Refusing to allow counsel to withdraw should truly be a remedy of last resort and should only be relied upon where it is necessary to prevent serious harm to the administration of justice" - See paragraphs 44 and 45.

Barristers and Solicitors - Topic 1588

Relationship with client - Termination of relationship - Withdrawal by lawyer - Criminal cases - The Supreme Court of Canada set out principles to guide a court's exercise of discretion to decide withdrawal applications, including the following non-exhaustive list of factors - Whether it was feasible for the accused to represent himself/herself; other means of obtaining representation; impact on the accused from delay in proceedings; conduct of counsel; impact on the Crown and any co-accused; impact on complainants, witnesses and jurors; fairness to defence counsel, including consideration of the expected length and complexity of the proceedings; and the history of the proceedings - "On the basis of these factors, the court must determine whether allowing withdrawal would cause serious harm to the administration of justice. If the answer is yes, withdrawal may be refused. ... [W]hether allotted court time can be otherwise usefully filled is not a relevant consideration in this balancing of interests" - The court emphasized that the threshold for refusing leave to withdraw was a high one and required a proper basis in the record for its exercise - See paragraphs 46 to 54.

Barristers and Solicitors - Topic 1588

Relationship with client - Termination of relationship - Withdrawal by lawyer - Criminal cases - A criminal defence lawyer unsuccessfully applied to withdraw as counsel of record - She had to apply for certiorari, seeking to quash the order, because there was no provision in the Criminal Code providing for interlocutory appeals - The Supreme Court of Canada provided the following guidance with respect to the correct procedure for appealing a withdrawal application originating in a superior court - "These circumstances seem to be analogous to those in Dagenais v. Canadian Broadcasting Corp., [1994, S.C.C.] ... Dagenais involved a media challenge of a publication ban in a criminal matter. As the media was a third party to the criminal proceedings, the Court determined that this was different than an interlocutory appeal by a party to the action. It concluded that the least undesirable route of appeal was directly from the superior court to the Supreme Court of Canada through s. 40 of the Supreme Court Act ... Similarly, defence counsel is a third party to the main criminal action, so it appears this would be analogous to Dagenais" - See paragraphs 55 and 56.

Barristers and Solicitors - Topic 1589

Relationship with client - Termination of relationship - Criminal cases - Withdrawal before a preliminary inquiry - A criminal defence lawyer employed by the Yukon Legal Services Society (Legal Aid), represented an accused charged with sexual offences against a child - Prior to the preliminary inquiry, the accused failed to update his financial information, resulting in the suspension of his legal aid funding - Cunningham promptly applied to withdraw as counsel of record on account of the suspension of the legal aid funding and the accused's inability to otherwise pay for legal services - The territorial court judge refused to grant the application - Cunningham applied for certiorari, seeking to quash the order - The reviewing court held that the territorial court judge did not exceed his jurisdiction - Cunningham appealed - The appellant court allowed the appeal, finding that: (1) the law society had the primary interest in lawyer regulation; (2) court supervision of withdrawal threatened solicitor-client privilege; and (3) compelled representation put counsel in the position of a perceived or actual conflict - The Supreme Court of Canada allowed the Crown's appeal - A court had the authority to control its own process and to supervise counsel, who were officers of the court - The territorial court had the jurisdiction to refuse to grant counsel's request to withdraw - That jurisdiction, however, should be exercised exceedingly sparingly - It was not appropriate to refuse withdrawal where an adjournment would not be necessary, nor where counsel sought withdrawal for ethical reasons - Where counsel sought untimely withdrawal for non-payment of fees, the court must weigh the relevant factors and determine whether withdrawal would cause serious harm to the administration of justice.

Barristers and Solicitors - Topic 1609

Relationship with client - Conflict of interest or duties - Resulting from lawyer's self-interest - [See eighth Barristers and Solicitors - Topic 1588 ].

Barristers and Solicitors - Topic 1623

Relationship with client - Duty of confidentiality - Disclosure to court - [See fourth and fifth Barristers and Solicitors - Topic 1588 ].

Barristers and Solicitors - Topic 7610

Regulation - General - Independence of the bar - [See seventh Barristers and Solicitors - Topic 1588 ].

Barristers and Solicitors - Topic 7646

Regulation - Powers of governing bodies - Respecting conduct of members - [See sixth Barristers and Solicitors - Topic 1588 ].

Courts - Topic 2004

Jurisdiction - General principles - Inherent jurisdiction - The Supreme Court of Canada stated that applications regarding withdrawal or removal of counsel, whether for non-payment of fees, conflict of interest or otherwise, were the types of matters that fell within the necessarily implied authority of a court to control the conduct of legal proceedings before it - "Superior courts possess inherent jurisdiction to ensure they can function as courts of law and fulfil their mandate to administer justice ... Inherent jurisdiction includes the authority to control the process of the court, prevent abuses of process, and ensure the machinery of the court functions in an orderly and effective manner. As counsel are key actors in the administration of justice, the court has authority to exercise some control over counsel when necessary to protect its process" - See paragraphs 18 to 20.

Courts - Topic 2015

Jurisdiction - General principles - Controlling abuse of its process - [See Courts - Topic 2004 ].

Criminal Law - Topic 7124

Extraordinary remedies - Certiorari - Powers of court on certiorari application - Criminal cases - A preliminary inquiry judge refused to grant a lawyer's request to withdraw as counsel of record - The reviewing judge dismissed the certiorari application, thinking that he had to find an excess of jurisdiction - The Supreme Court of Canada stated that excess of jurisdiction was the standard for a preliminary inquiry judge's decision to either commit an accused to trial or issue a discharge - "However, a lawyer seeking withdrawal is not analogous to a committal or discharge at a preliminary inquiry; it is more closely analogous to Dagenais [Canadian Broadcasting Corp. v. Dagenais et al.], a third-party application. The judge at first instance has the authority to make an immediate and final determination on counsel's application to withdraw ... [R]efusing an application to withdraw is a coercive and conclusive order with respect to the lawyer" - See paragraphs 57 and 58.

Cases Noticed:

R. v. Vescio, [1949] S.C.R. 139, refd to. [para. 9].

Leask v. Cronin (1985), 18 C.C.C.(3d) 315 (B.C.S.C.), consd. [para. 11].

Luchka v. Zens (1989), 37 B.C.L.R.(2d) 127 (C.A.), refd to. [para. 12].

R. v. Ho (G.D.) (2003), 190 B.C.A.C. 187; 311 W.A.C. 187; 21 B.C.L.R.(4th) 83; 2003 BCCA 663, refd to. [para. 12].

R. v. Huber (E.E.) (2004), 192 B.C.A.C. 75; 315 W.A.C. 75; 2004 BCCA 43, refd to. [para. 12].

R. v. Creasser (D.D.) (1996), 187 A.R. 279; 127 W.A.C. 279; 110 C.C.C.(3d) 323 (C.A.), leave to appeal refused [1997] 1 S.C.R. vii, consd. [para. 13].

R. v. Ferguson (J.R.) - see R. v. Creasser (D.D.).

R. v. D.D.C. - see R. v. Creasser (D.D.).

R. v. Deschamps (M.B.) (2003), 177 Man.R.(2d) 301; 304 W.A.C. 301; 2003 MBCA 116, consd. [para. 15].

Bernier v. 9006-1474 Quebec inc., [2001] J.Q. no. 2631 (C.A.), refd to. [para. 16].

Mireau v. Canada et al. (1995), 128 Sask.R. 142; 85 W.A.C. 142 (C.A.), refd to. [para. 16].

R. v. Brundia (V.) (2007), 230 O.A.C. 29; 2007 ONCA 725, refd to. [para. 16].

R. v. Peterman (B.) (2004), 186 O.A.C. 83; 70 O.R.(3d) 481 (C.A.), refd to. [para. 16].

R. v. Golding (C.E.) (2007), 325 N.B.R.(2d) 92; 836 A.P.R. 92; 2007 NBQB 320, refd to. [para. 16].

Dooling v. Banfield and Nearly (1978), 22 Nfld. & P.E.I.R. 413; 58 A.P.R. 413 (Nfld. Dist. Ct.), refd to. [para. 16].

MacDonald Estate v. Martin and Rossmere Holdings (1970) Ltd., [1990] 3 S.C.R. 1235; 121 N.R. 1; 70 Man.R.(2d) 241, refd to. [para. 18].

ATCO Gas and Pipelines Ltd. v. Energy and Utilities Board (Alta.), [2006] 1 S.C.R. 140; 344 N.R. 293; 380 A.R. 1; 363 W.A.C. 1; 2006 SCC 4, refd to. [para. 19].

Jones v. Smith, [1999] 1 S.C.R. 455; 236 N.R. 201; 120 B.C.A.C. 161; 196 W.A.C. 161, refd to. [para. 26].

R. v. McClure (D.E.), [2001] 1 S.C.R. 445; 266 N.R. 275; 142 O.A.C. 201; 2001 SCC 14, refd to. [para. 26].

Anderson v. Bank of British Columbia (1876), 2 Ch. D. 644 (C.A.), refd to. [para. 27].

Descôteaux et al. v. Mierzwinski et al., [1982] 1 S.C.R. 860; 44 N.R. 462, consd. [para. 28].

Maranda v. Leblanc, [2003] 3 S.C.R. 193; 311 N.R. 357; 2003 SCC 67, consd. [para. 28].

Maranda v. Richer - see Maranda v. Leblanc.

R. v. Burns (R.H.), [1994] 1 S.C.R. 656; 165 N.R. 374; 42 B.C.A.C. 161; 67 W.A.C. 161, refd to. [para. 34].

Young v. Young et al., [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161, refd to. [para. 39].

R. v. Rowbotham et al. (1988), 25 O.A.C. 321; 41 C.C.C.(3d) 1 (C.A.), consd. [para. 41].

New Brunswick (Minister of Health and Community Services) v. J.G. and D.V., [1999] 3 S.C.R. 46; 244 N.R. 276; 216 N.B.R.(2d) 25; 552 A.P.R. 25, refd to. [para. 42].

R. v. Rushlow (W.) (2009), 250 O.A.C. 75; 245 C.C.C.(3d) 505; 2009 ONCA 461, refd to. [para. 43].

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81, consd. [para. 56].

R. v. Patterson, [1970] S.C.R. 409, refd to. [para. 57].

R. v. Dubois, [1986] 1 S.C.R. 366; 66 N.R. 289; 41 Man.R.(2d) 1, refd to. [para. 57].

R. v. Deschamplain (D.), [2004] 3 S.C.R. 601; 347 N.R. 287; 211 O.A.C. 323; 2004 SCC 76, refd to. [para. 57].

Canadian Broadcasting Corp. et al. v. R. (2008), 236 O.A.C. 232; 231 C.C.C.(3d) 394; 2008 ONCA 397, refd to. [para. 58].

R. v. Gardiner (B.) - see Canadian Broadcasting Corp. et al. v. R.

Ottawa Citizen Group Inc. et al. v. Canada (Attorney General) et al. (2005), 201 O.A.C. 208; 75 O.R.(3d) 590 (C.A.), refd to. [para. 58].

Authors and Works Noticed:

Canadian Bar Association, Code of Professional Conduct (2009), c. 12, Commentary 3 [para. 38]; c. 12, Commentary 6 [para. 37].

Jacob, I.H., The Inherent Jurisdiction of the Court (1970), 23 Current Legal Problems 23, pp. 27, 28 [para. 18].

Law Society of Alberta, Code of Professional Conduct (2009), c. 1 [para. 39]; 2, 6, 7 [para. 9]; 14, rule 1 [paras. 36, 48]; 14, rule 2 [para. 48].

Law Society of British Columbia, Professional Conduct Handbook (2010), c. 1 [para. 39]; 10 [para. 9]; 10, rules 1, 2 [para. 48].

Law Society of Upper Canada, Rules of Professional Conduct (2009), rules 2 [para. 9]; 2.09(2) [para. 48]; 2.09(5) [para. 36]; 2.09(7)(b), 2.09(7)(d) [para. 48]; 4, 6 [para. 39].

Law Society of Yukon, Code of Professional Conduct, Part 1, rule 21 [para. 9]; Part 2, Part 3 [para. 39].

Létourneau, Gilles, The Prerogative Writs in Canadian Criminal Law and Procedure (1976), p. 143 [para. 57].

Counsel:

Ron Reimer and Peter A. Eccles, for the appellant;

Gordon R. Coffin and Nils F.N. Clarke, for the respondent;

Susan L. Reid, for the intervenor, the Attorney General of Ontario;

Leonard T. Doust, Q.C., and Michael A. Feder, for the intervenor, the Law Society of British Columbia;

John J.L. Hunter, Q.C., and Brent B. Olthuis, for the intervenor, the Law Society of Yukon;

Gregory P. DelBigio, for the intervenor, the Canadian Bar Association;

Scott C. Hutchison and Andrea Gonsalves, for the intervenor, the Criminal Lawyers' Association (Ontario).

Solicitors of Record:

Public Prosecution Service of Canada, Vancouver, B.C., for the appellant;

Community Law Clinic, Whitehorse, Yukon, for the respondent;

Attorney General of Ontario, Toronto, Ontario, for the intervenor, the Attorney General of Ontario;

McCarthy Tétrault, Vancouver, B.C., for the intervenor, the Law Society of British Columbia;

Hunter Litigation Chambers Law Corporation, Vancouver, B.C., for the intervenor, the Law Society of Yukon;

Gregory P. DelBigio, Vancouver, B.C., for the intervenor, the Canadian Bar Association;

Stockwoods, Toronto, Ontario, for the intervenor, the Criminal Lawyers' Association (Ontario).

This appeal was heard on November 17, 2009, by McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ., of the Supreme Court of Canada. The following judgment and reasons for judgment were delivered by Rothstein, J., on March 26, 2010, in both official languages.