Top Court to Consider Costs Against Defence Lawyers

Authors: Michael Tochor, Q.C., Adryan Toth

This post was written prior to our January 2017 merger, under our previous firm name, MacPherson Leslie & Tyerman LLP.

As a general rule, participants in the criminal justice system are rarely, if ever, subject to a costs award. However, two recent cases show a new willingness by judges to order costs against both prosecutors and defence lawyers. And soon, the Supreme Court will have a chance to speak on this point.

In an earlier blog, we highlighted an Ontario case where the Crown was ordered to pay $1 million in costs in a criminal matter. Now, there is a case from Quebec, which forms the subject of this blog, where costs were ordered against a defence lawyer.

In DCPP v Jodoin, 2015 QCCA 847, a judge ruled that a defence lawyer abused the court’s process by inappropriately attempting to stop proceedings in one court by making an application – in the same matter – to a different court. The judge held that the experienced defence lawyer was intentionally attempting to frustrate the court’s ability to function, and therefore ordered him to personally pay $3,000 in costs.

The defence lawyer appealed and the Quebec Court of Appeal overturned the trial court’s decision. In the Court of Appeal’s view, the very high threshold necessary to justify a personal costs award against a lawyer was not met. The Court of Appeal held that the lawyer’s conduct in the circumstances was not so exceptional or unusual that it warranted a sanction of costs.

The Crown, in turn, then sought leave to appeal to the Supreme Court of Canada and, interestingly, permission to appeal was granted on March 17, 2016. It is anticipated that the appeal will be heard sometime in 2017. Accordingly, Canada’s top court will soon have the opportunity to consider when defence counsel in criminal proceedings should be personally liable to pay costs. Indeed, the table appears set for the Supreme Court to tell us when lawyers will have to reach into their own pockets to atone for their professional sins.