Quebec (Director of Criminal and Penal Prosecutions) v. Jodoin

Quebec (Director of Criminal and Penal Prosecutions) v. Jodoin
Collection
Supreme Court Judgments
Date
2017-05-12
Neutral citation
2017 SCC 26
Report
[2017] 1 SCR 478
Case number
36539
Judges
McLachlin, Beverley; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard; Gascon, Clément; Côté, Suzanne; Brown, Russell; Rowe, Malcolm
On appeal from
Quebec
Subjects
Criminal law
Notes
SCC Case Information: 36539
Decision Content
SUPREME COURT OF CANADA
Citation: Quebec (Director of Criminal and Penal Prosecutions) v. Jodoin, 2017 SCC 26, [2017] 1 S.C.R. 478
Appeal heard: December 5, 2016
Judgment rendered: May 12, 2017
Docket: 36539
Between:
Director of Criminal and Penal Prosecutions
Appellant
and
Robert Jodoin
Respondent
- and -
Director of Public Prosecutions,
Criminal Lawyers’ Association (Ontario),
Association des avocats de la défense de Montréal,
Trial Lawyers Association of British Columbia and
Canadian Civil Liberties Association
Interveners
Official English Translation: Reasons of Gascon J.
Coram: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ.
Reasons for Judgment:
(paras. 1 to 57)
Gascon J. (McLachlin C.J. and Moldaver, Karakatsanis, Wagner, Brown and Rowe JJ. concurring)
Joint Dissenting Reasons:
(paras. 58 to 75)
Abella and Côté JJ.
Quebec (Director of Criminal and Penal Prosecutions) v. Jodoin, 2017 SCC 26, [2017] 1 S.C.R. 478
Director of Criminal and Penal Prosecutions Appellant
v.
Robert Jodoin Respondent
and
Director of Public Prosecutions,
Criminal Lawyers’ Association (Ontario),
Association des avocats de la défense de Montréal,
Trial Lawyers Association of British Columbia and
Canadian Civil Liberties Association Interveners
Indexed as: Quebec (Director of Criminal and Penal Prosecutions) v. Jodoin
2017 SCC 26
File No.: 36539.
2016: December 5; 2017: May 12.
Present: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ.
on appeal from the court of appeal for quebec
Criminal law — Costs — Lawyers — Courts — Jurisdiction — Superior Court dismissing motions of defence lawyer for writs of prohibition and awarding costs against lawyer personally — Court of Appeal setting award aside — Criteria and process applicable to exercise by courts of their power to impose such sanction on lawyer — Whether awarding costs against lawyer personally was justified in this case — Whether Court of Appeal erred in substituting its own opinion for that of Superior Court.
J, an experienced criminal lawyer, was representing 10 clients charged with impaired driving. On the morning of a scheduled hearing in the Court of Québec on a motion for disclosure of evidence in his clients’ cases, before it even began, J had the office of the Superior Court stamp a series of motions for writs of prohibition in which he challenged the jurisdiction of the Court of Québec judge who was to preside over the hearing, alleging bias on the judge’s part. However, before the motions were served, the parties learned that another judge would be presiding instead. The motions were therefore put aside, and the hearing on the motion for disclosure of evidence began. At the hearing, J objected to the testimony of an expert witness called by the Crown on the ground that he had not received the required notice. The judge decided to authorize the examination in chief of the expert after the lunch break. During the break, J drew up a new series of motions for writs of prohibition, this time challenging that judge’s jurisdiction and alleging, once again, bias on the judge’s part. After the break, he informed the judge of this and the hearing was adjourned, as the service of such motions suspends proceedings until the Superior Court has ruled on them. The Superior Court dismissed the motions and, at the Crown’s request, awarded costs against J personally. The Court of Appeal affirmed the Superior Court’s judgment on the disposition of the motions, but allowed the appeal solely to set aside the award of costs against J personally.
Held (Abella and Côté JJ. dissenting): The appeal should be allowed and the award of costs restored.
Per McLachlin C.J. and Moldaver, Karakatsanis, Wagner, Gascon, Brown and Rowe JJ.: The courts have the power to maintain respect for their authority. This includes the power to manage and control the proceedings conducted before them. A court therefore has an inherent power to control abuse in this regard and to prevent the use of procedure in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute. This is a discretion that must be exercised in a deferential manner, but it allows a court to ensure the integrity of the justice system.
The awarding of costs against lawyers personally flows from the right and duty of the courts to supervise the conduct of the lawyers who appear before them and to note, and sometimes penalize, any conduct of such a nature as to frustrate or interfere with the administration of justice. As officers of the court, lawyers have a duty to respect the court’s authority. If they fail to act in a manner consistent with their status, the court may be required to deal with them by punishing their misconduct. This power of the courts to award costs against a lawyer personally is not limited to civil proceedings, but can also be exercised in criminal cases, which means that it may be exercised against defence lawyers. This power applies in parallel with the power of the courts to punish by way of convictions for contempt of court and that of law societies to sanction unethical conduct by their members.
The threshold for exercising the courts’ discretion to award costs against a lawyer personally is a high one. An award of costs against a lawyer personally can be justified only on an exceptional basis 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 a 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 misconduct on his or her part, that is deliberate.
There are two important guideposts that apply to the exercise of this discretion. The first guidepost relates to the specific context of criminal proceedings, in which the courts must show a certain flexibility toward the actions of defence lawyers, whose role is not comparable in every respect to that of a lawyer in a civil case. If costs are awarded against a lawyer personally, the purpose must not be to discourage the lawyer from defending his or her client’s rights and interests, and in particular the client’s right to make full answer and defence. Thus, the considerations to be taken into account in assessing the conduct of defence lawyers can be different from those that apply in the case of lawyers in civil proceedings. The second guidepost requires a court to confine itself to the facts of the case before it and to refrain from indirectly putting the lawyer’s disciplinary record, or indeed his or her career, on trial. To consider facts external to the case before the court can be justified only for the limited purpose of determining, first, the intention behind the lawyer’s actions and whether he or she was acting in bad faith, and, second, whether the lawyer knew, on bringing the impugned proceeding, that the courts do not approve of such proceedings and that this one was unfounded.
A court cannot award costs against a lawyer personally without following a certain process and observing certain procedural safeguards. A lawyer upon whom such a sanction may be imposed should be given prior notice of the allegations against him or her and the possible consequences. The notice should contain sufficient information about the alleged facts and the nature of the evidence in support of those facts, and should be sent far enough in advance to enable the lawyer to prepare adequately. The lawyer should have an opportunity to make separate submissions on costs and to adduce any relevant evidence in this regard. The applicable standard of proof is the balance of probabilities. In criminal proceedings, the Crown’s role on this issue must be limited to objectively presenting the evidence and the relevant arguments.
The circumstances of this case were exceptional and justified an award of costs against J personally. The Superior Court correctly identified the applicable criteria and properly exercised its discretion. As the court noted, J’s conduct in the cases in question was particularly reprehensible. The purpose of that conduct was unrelated to the motions he brought. J 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. J thus used the extraordinary remedies 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 J had acted in bad faith and in a way that amounted to abuse of process, thereby seriously interfering with the administration of justice. The Court of Appeal should not have intervened in the absence of an error of law, a palpable and overriding error of fact or an unreasonable exercise of discretion by the Superior Court.
Per Abella and Côté JJ. (dissenting): Personal costs orders are of an exceptional nature. 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 only be issued in the most exceptional of circumstances and the Crown should be very hesitant about pursuing them.
In the instant case, J’s behaviour did not warrant the exceptional remedy of a personal costs order. It appears that his 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 J’s behaviour does not justify straying from the legal requirement that his conduct be rare and exceptional before costs are ordered personally against him.
Moreover, J’s motions for writs of prohibition were not unfounded to a sufficient degree to attract a personal costs order. The Crown had not provided J with the notice required for an expert witness testimony under s. 657.3(3) of the Criminal Code . J was, as a result, entitled to an adjournment under s. 657.3(4) . The judge presiding in the Court of Québec only granted him a brief one over the lunch break and mistakenly said that J had already cross‑examined the Crown’s expert in other matters. In the circumstances, J’s filing of motions for writs of prohibition for the purpose of suspending the proceedings can easily be seen as an error of judgment, but hardly one justifying a personal costs order. For these reasons, the appeal should be dismissed.
Cases Cited
By Gascon J.
Applied: Quebec (Attorney General) v. Cronier (1981), 63 C.C.C. (2d) 437; considered: Young v. Young, [1993] 4 S.C.R. 3; Pacific Mobile Corporation v. Hunter Douglas Canada Ltd., [1979] 1 S.C.R. 842; referred to: R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167; Canam Enterprises Inc. v. Coles (2000), 51 O.R. (3d) 481, rev’d 2002 SCC 63, [2002] 3 S.C.R. 307; Morel v. Canada, 2008 FCA 53, [2009] 1 F.C.R. 629; Myers v. Elman, [1940] A.C. 282; Pearl v. Gentra Canada Investments Inc., [1998] R.L. 581; R. v. Liberatore, 2010 NSCA 26, 292 N.S.R. (2d) 69; R. v. Smith (1999), 133 Man. R. (2d) 89; Canada (Procureur général) v. Bisson, [1995] R.J.Q. 2409; United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901; R. v. Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331; R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575; R. v. Trang, 2002 ABQB 744, 323 A.R. 297; Fearn v. Canada Customs, 2014 ABQB 114, 586 A.R. 23; R. v. Ciarniello (2006), 81 O.R. (3d) 561; Leyshon‑Hughes v. Ontario Review Board, 2009 ONCA 16, 240 C.C.C. (3d) 181; Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395; Histed v. Law Society of Manitoba, 2007 MBCA 150, 225 Man. R. (2d) 74; Groia v. Law Society of Upper Canada, 2016 ONCA 471, 131 O.R. (3d) 1; R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520; R. v. Joanisse (1995), 102 C.C.C. (3d) 35; R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908; R. v. Carrier, 2012 QCCA 594; St‑Jean v. Mercier, 2002 SCC 15, [2002] 1 S.C.R. 491; Ontario (Attorney General) v. Bear Island Foundation, [1991] 2 S.C.R. 570; Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303; Galganov v. Russell (Township), 2012 ONCA 410, 294 O.A.C. 13; Trackcom Systems International Inc. v. Trackcom Systems Inc., 2014 QCCA 1136; Québec (Procureur général) v. Bélanger, 2012 QCCA 1669, 4 M.P.L.R. (5th) 21; R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631.
By Abella and Côté JJ. (dissenting)
Young v. Young, [1993] 4 S.C.R. 3; R. v. Gunn, 2003 ABQB 314, 335 A.R. 137.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 7 , 11 .
Criminal Code, R.S.C. 1985, c. C‑46, s. 657.3(3) , (4) .
Professional Code, CQLR, c. C‑26, s. 23.
Rules of Practice of the Superior Court of the Province of Quebec, Criminal Division, 2002, SI/2002‑46, s. 25.
Authors Cited
Code, Michael. “Counsel’s Duty of Civility: An Essential Component of Fair Trials and an Effective Justice System” (2007), 11 Can. Crim. L.R. 97.
Jacob, I. H. “The Inherent Jurisdiction of the Court” (1970), 23 Curr. Leg. Probl. 23.
Monahan, Patrick J. “The Independence of the Bar as a Constitutional Principle in Canada”, in Law Society of Upper Canada, ed., In the Public Interest: The Report & Research Papers of the Law Society of Upper Canada’s Task Force on the Rule of Law & the Independence of the Bar, Toronto: Irwin Law, 2007, 117.
Morissette, Yves‑Marie. “L’initiative judiciaire vouée à l’échec et la responsabilité de l’avocat ou de son mandant” (1984), 44 R. du B. 397.
APPEAL from a judgment of the Quebec Court of Appeal (Dutil, Levesque and Émond JJ.A.), 2015 QCCA 847, [2015] AZ‑51175627, [2015] J.Q. no 4142 (QL), 2015 CarswellQue 4364 (WL Can.), setting aside in part a decision of Bellavance J., 2013 QCCS 4661, [2013] AZ‑51004528, [2013] J.Q. no 13287 (QL), 2013 CarswellQue 10170 (WL Can.). Appeal allowed, Abella and Côté JJ. dissenting.
Daniel Royer and Catherine Dumais, for the appellant.
Catherine Cantin‑Dussault, for the respondent.
Gilles Villeneuve and Mathieu Stanton, for the intervener the Director of Public Prosecutions.
Maxime Hébrard and Marlys A. Edwardh, for the intervener the Criminal Lawyers’ Association (Ontario).
Walid Hijazi, Lida Sara Nouraie and Nicholas St‑Jacques, for the intervener Association des avocats de la défense de Montréal.
Mathew P. Good and Ariane Bisaillon, for the intervener the Trial Lawyers Association of British Columbia.
Frank Addario and Stephen Aylward, for the intervener the Canadian Civil Liberties Association.
English version of the judgment of McLachlin C.J. and Moldaver, Karakatsanis, Wagner, Gascon, Brown and Rowe JJ. delivered by
Gascon J. —
I. Overview
[1] This appeal concerns the scope of the courts’ power to award costs[1] against a lawyer personally in a criminal proceeding. Although the courts have the power to maintain respect for their authority and to preserve the integrity of the administration of justice, the appropriateness of imposing such a sanction in a criminal proceeding must be assessed in light of the special role played by defence lawyers and the rights of the accused persons they represent. In such cases, the courts must be cautious in exercising this discretion.
[2] The respondent is an experienced criminal lawyer and a member of the Barreau du Québec. In several impaired driving cases joined for hearing on a single motion for disclosure of evidence, he filed two series of motions on the same day for writs of prohibition against two judges of the Court of Québec, each time on questionable grounds of bias, apparently in order to obtain a postponement of the scheduled hearing. A first judge had initially been assigned to preside over that hearing, but a second one replaced the first unexpectedly at the last minute. In response to that unprecedented strategy, which resulted in the postponement of the hearing in the Court of Québec, the appellant, the Crown, asked not only that the motions be dismissed, but also that the costs of the motions be awarded against the respondent personally.
[3] The Superior Court held that awarding costs against a lawyer personally can be justified in the case of a frivolous proceeding that denotes a serious and deliberate abuse of the judicial system. The judge expressed the opinion that the respondent’s intentional acts were indicative of such abuse and constituted exceptional conduct that justified making an award against him personally. The Court of Appeal acknowledged that the motions for writs of prohibition should be dismissed, but nonetheless set aside the award of costs against the respondent personally, finding that his conduct did not satisfy the strict criteria developed by the courts in this regard.
[4] In my opinion, the appeal should be allowed. The Superior Court correctly identified the applicable criteria and properly exercised the discretion it has in such matters. The Court of Appeal should not have intervened in the absence of an error of law, a palpable and overriding error of fact or an unreasonable exercise of his discretion by the motion judge. Although the exercise of this discretion will be warranted only in rare cases, the circumstances of the instant case were exceptional and justified an award of costs against the respondent personally.
II. Context
[5] The relevant context of this case can be summarized briefly. In April 2013, the respondent was representing 10 clients charged with driving while impaired by alcohol or while their blood alcohol level exceeded the legal limit. There were 12 cases, and they were joined for a hearing scheduled in the Court of Québec on a motion for disclosure of evidence, because the accused were all represented by the respondent. On the morning of the hearing, before it even began, the respondent had the office of the Superior Court stamp a series of motions for writs of prohibition in which he challenged the jurisdiction of the Court of Québec judge who was to preside over the hearing, alleging bias on the judge’s part. As an experienced criminal lawyer, the respondent was well aware that the filing of such motions results in the immediate postponement of the hearing then under way until the Superior Court has ruled on them.
[6] However, the same morning, before the motions were served, the parties learned that another judge would be presiding over the hearing instead. The motions were therefore put aside, and the hearing on the motion for disclosure of evidence began. At the hearing, the Crown stated that it wished to call its expert witness. The respondent objected on the ground that he had not received the notice required by s. 657.3(3) of the Criminal Code, R.S.C. 1985, c. C‑46 , and that he had been unable to consult the expert’s resumé. He requested a postponement. The judge heard the parties on this subject and decided to authorize the examination in chief of the expert after the lunch break. In his view, the respondent would have an opportunity to examine the expert’s resumé before the hearing resumed.
[7] During the break, the respondent chose instead to draw up a new series of motions for writs of prohibition, this time challenging the second judge’s jurisdiction and alleging, once again, bias on the judge’s part. After the break, he informed the judge of this. As a result of s. 25 of the Rules of Practice of the Superior Court of the Province of Quebec, Criminal Division, 2002, SI/2002‑46, which provides that the service of such motions suspends proceedings, the judge had no choice but to adjourn the hearing.
[8] The appellant, believing that the sole purpose of these successive extraordinary remedies was to obtain a postponement for an ulterior motive, objected to the respondent’s tactic. He told the respondent that he intended to seek an award of costs against the respondent personally because of the latter’s dilatory motions and abuse of process. The Superior Court thus heard the motions for writs of prohibition both on the merits and on the award of costs being sought against the respondent personally.
III. Judicial History
A. Quebec Superior Court (2013 QCCS 4661)
[9] The Superior Court judge began by rejecting the arguments on the merits of the motions for writs of prohibition against the Court of Québec judge. He found that the motions were unfounded and frivolous and that they were of questionable legal value for an experienced lawyer such as the respondent.
[10] The judge then dealt with the costs award being sought against the respondent. Indeed, he devoted the bulk of his reasons to that issue, as it was clear, to say the least, that the proceeding was frivolous, given that there was nothing in the words of the Court of Québec judge to indicate an excess of jurisdiction.
[11] On the law applicable to the issue of costs in criminal proceedings, the Superior Court judge cited Quebec (Attorney‑General) v. Cronier (1981), 63 C.C.C. (2d) 437 (Que. C.A.). He noted that L’Heureux‑Dubé J.A., as she then was, had emphasized [translation] “the inherent power of the Superior Court to manage cases within its jurisdiction and to award costs not provided for by statute” (para. 115 (CanLII)). On the basis of the principles enunciated in Cronier, the judge found that the issue was whether what was before him was “a frivolous proceeding that denotes a serious abuse of the judicial system”, an abuse that was “deliberate” (para. 117).
[12] On the facts of the case before him, the judge found that the [translation] “preparation, at lunchtime on April 23, 2013, of a series of motions for writs of prohibition in a legal situation that did not call for such a proceeding, and the continued presentation of those proceedings,” constituted abuse of “section 25 of the Rules of Practice and the suspension order it entails” (para. 118). In his analysis, the judge took the respondent’s conduct in other cases into account in determining whether he had had culpable intent to file, as a calculated act, proceedings that he knew to be frivolous and abusive.
[13] The judge concluded that the respondent’s conduct satisfied the applicable criteria and that it had [translation] “led, in a manner that well‑informed Canadians would not approve of, to paralysis of the legitimate work of the Court of Québec sitting in a criminal proceeding and to disruption of its local judges’ case management work” (para. 119). He dismissed the motions for writs of prohibition and awarded costs against the respondent personally, setting them at $3,000 for all the cases combined, or $250 per case.
B. Quebec Court of Appeal (2015 QCCA 847)
[14] The Court of Appeal affirmed the Superior Court’s judgment on the disposition of the motions for writs of prohibition, but allowed the appeal solely to set aside the award of costs against the respondent personally. It noted that, in criminal cases, [translation] “costs have no longer been systematically awarded since the 1954 reform of the criminal justice system” (para. 5 (CanLII)). However, it acknowledged that, “in circumstances that are quite rare and exceptional”, the Superior Court can, “in the exercise of its inherent superintending and reforming powers, award costs” (para. 6). In the case at bar, the Court of Appeal was of the view that the Superior Court should not have exercised those inherent powers to sanction conduct that had occurred in another court that itself had the power to punish for contempt of court. It concluded that, on the facts, the situation “does not have the exceptional and rare quality of an act that seriously undermines the authority of that court or that seriously interferes with the administration of justice” (para. 11).
IV. Issue
[15] The only issue in this appeal is whether the Superior Court was justified in awarding costs against the respondent personally. What must be done to resolve it is, first, to determine the scope of the courts’ power to impose such a sanction, the applicable criteria and the process to be followed, next, to ascertain whether the criteria were properly applied by the Superior Court judge and, finally, to determine whether the intervention of the Court of Appeal was necessary.
V. Analysis
A. Awarding of Costs Against a Lawyer Personally
(1) Power of the Courts
[16] The courts have the power to maintain respect for their authority. This includes the power to manage and control the proceedings conducted before them (R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, at para. 58). A court therefore has an inherent power to control abuse in this regard (Young v. Young, [1993] 4 S.C.R. 3, at p. 136) and to prevent the use of procedure “in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute”: Canam Enterprises Inc. v. Coles (2000), 51 O.R. (3d) 481 (C.A.), at para. 55, per Goudge J.A., dissenting, reasons approved in 2002 SCC 63, [2002] 3 S.C.R. 307. This is a discretion that must, of course, be exercised in a deferential manner (Anderson, at para. 59), but it allows a court to “ensure the integrity of the justice system” (Morel v. Canada, 2008 FCA 53, [2009] 1 F.C.R. 629, at para. 35).
[17] It is settled law that this power is possessed both by courts with inherent jurisdiction and by statutory courts (Anderson, at para. 58). It is therefore not reserved to superior courts but, rather, has its basis in the common law: Myers v. Elman, [1940] A.C. 282 (H.L.), at p. 319; M. Code, “Counsel’s Duty of Civility: An Essential Component of Fair Trials and an Effective Justice System” (2007), 11 Can. Crim. L.R. 97, at p. 126.
[18] There is an established line of cases in which courts have recognized that the awarding of costs against lawyers personally flows from the right and duty of the courts to supervise the conduct of the lawyers who appear before them and to note, and sometimes penalize, any conduct of such a nature as to frustrate or interfere with the administration of justice: Myers, at p. 319; Pacific Mobile Corporation v. Hunter Douglas Canada Ltd., [1979] 1 S.C.R. 842, at p. 845; Cronier, at p. 448; Pearl v. Gentra Canada Investments Inc., [1998] R.L. 581 (Que. C.A.), at p. 587. As officers of the court, lawyers have a duty to respect the court’s authority. If they fail to act in a manner consistent with their status, the court may be required to deal with them by punishing their misconduct (M. Code, at p. 121).
[19] This power of the courts to award costs against a lawyer personally is not limited to civil proceedings, but can also be exercised in criminal cases (Cronier). This means that it may sometimes be exercised against defence lawyers in criminal proceedings, although such situations are rare: R. v. Liberatore, 2010 NSCA 26, 292 N.S.R. (2d) 69; R. v. Smith (1999), 133 Man. R. (2d) 89 (Q.B.), at para. 43; Canada (Procureur général) v. Bisson, [1995] R.J.Q. 2409 (Sup. Ct.); M. Code, at p. 122.
[20] The power to control abuse of process and the judicial process by awarding costs against a lawyer personally applies in parallel with the power of the courts to punish by way of convictions for contempt of court and that of law societies to sanction unethical conduct by their members. Punishment for contempt is thus based on the same power the courts have “to enforce their process and maintain their dignity and respect” (United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901, at p. 931). These sanctions are not mutually exclusive, however. If need be, they can even be imposed concurrently in relation to the same conduct.
[21] This being said, although the criteria for an award of costs against a lawyer personally are comparable to those that apply to contempt of court (Cronier, at p. 449), the consequences are by no means identical. Contempt of court is strictly a matter of law and can result in harsh sanctions, including imprisonment. In addition, the rules of evidence that apply in a contempt proceeding are more exacting than those that apply to an award of costs against a lawyer personally, as contempt of court must be proved beyond a reasonable doubt. Because of the special status of lawyers as officers of the court, a court may therefore opt in a given situation to award costs against a lawyer personally rather than citing him or her for contempt (I. H. Jacob, “The Inherent Jurisdiction of the Court” (1970), 23 Curr. Leg. Probl. 23, at pp. 46‑48).
[22] As for law societies, the role they play in this regard is different from, but sometimes complementary to, that of the courts. They have, of course, an important responsibility in overseeing and sanctioning lawyers’ conduct, which derives from their primary mission of protecting the public (s. 23 of the Professional Code, CQLR, c. C‑26). However, the judicial powers of the courts and the disciplinary powers of law societies in this area can be distinguished, as this Court has explained as follows:
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. [Emphasis deleted.]
(R. v. Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331, at para. 35)
[23] The courts therefore do not have to rely on law societies to oversee and sanction any conduct they may witness. It is up to the courts to determine whether, in a given case, to exercise the power they have to award costs against a lawyer personally in response to the lawyer’s conduct before them. However, there is nothing to prevent the law society from exercising in parallel its power to assess its members’ conduct and impose appropriate sanctions.
[24] In most cases, of course, the implications for a lawyer of being ordered personally to pay costs are less serious than those of the other two alternatives. A conviction for contempt of court or an entry in a lawyer’s disciplinary record generally has more significant and more lasting consequences than a one‑time order to pay costs. Moreover, as this appeal shows, an order to pay costs personally will normally involve relatively small amounts, given that the proceedings will inevitably be dismissed summarily on the basis that they are unfounded, frivolous, dilatory or vexatious.
(2) Applicable Criteria
[25] While the courts do have the power to award costs against a lawyer personally, the threshold for exercising it is a high one. It is in fact rarely exercised, and the question whether it should be arises only infrequently: Cronier; Young; R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575, at para. 85; R. v. Trang, 2002 ABQB 744, 323 A.R. 297, at para. 481; Fearn v. Canada Customs, 2014 ABQB 114, 586 A.R. 23, at para. 121; Smith, at para. 43. Only serious misconduct can justify such a sanction against a lawyer. Moreover, the courts must be cautious in imposing it in light of the duties owed by lawyers to their clients:
Moreover, courts must be extremely cautious in awarding costs personally against a lawyer, given the duties upon a lawyer to guard confidentiality of instructions and to bring forward with courage even unpopular causes. A lawyer should not be placed in a situation where his or her fear of an adverse order of costs may conflict with these fundamental duties of his or her calling.
(Young, at p. 136)
[26] The type of conduct that can be sanctioned in this way was analyzed in depth in Cronier. L’Heureux‑Dubé J.A. concluded after reviewing the case law that the courts are justified in exercising such a discretion in cases involving abuse of process, frivolous proceedings, misconduct or dishonesty, or actions taken for ulterior motives, where the effect is to seriously undermine the authority of the courts or to seriously interfere with the administration of justice. She noted, however, that this power must not be exercised in an arbitrary and unlimited manner, but rather with restraint and caution. The motion judge in the case at bar properly relied on Cronier, and the Court of Appeal also endorsed the principles stated in it.
[27] Several courts across the country have adopted the requirement of conduct that represents a marked and unacceptable departure from the standard of reasonable conduct expected of a player in the judicial system: Bisson; R. v. Ciarniello (2006), 81 O.R. (3d) 561 (C.A.), at para. 31; Leyshon‑Hughes v. Ontario Review Board, 2009 ONCA 16, 240 C.C.C. (3d) 181, at para. 62; Fearn, at para. 119; Smith, at para. 58. Also, as the House of Lords stated in a case that has been cited by Canadian courts, including in Cronier, a mere mistake or error of judgment will not be sufficient to justify awarding costs against a lawyer personally; there must at the very least be gross neglect or inaccuracy (Myers, at p. 319).
[28] There are in this Court’s jurisprudence examples of conduct that has led to awards of costs being made against lawyers personally. In Young, the Court held that such a sanction is justified if “repetitive and irrelevant material, and excessive motions and applications, characterized” the conduct in question and if this was the result of a lawyer’s acting “in bad faith in encouraging this abuse and delay” (pp. 135‑36). In Pacific Mobile, the Court awarded costs against a company’s solicitors personally in a bankruptcy case. The solicitors had been granted a number of adjournments and had instituted proceedings that were inconsistent with directions given by the trial judge. On the issue of costs, Pigeon J. stressed that he did “not consider it fair to make the debtor’s creditors bear the cost of proceedings which were not instituted in their interest: quite the contrary”. He added that such an award of costs, “far from appropriately discouraging unnecessary appeals occasioning costly delays, tends on the contrary to favour them” (p. 844). In the circumstances, he determined that “the Court should [therefore] make use of its power to order costs payable by solicitors personally” (p. 845).
[29] In my opinion, therefore, an award of costs against a lawyer personally can be justified only on an exceptional basis 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 a 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 misconduct on his or her part, that is deliberate. Thus, a lawyer may not knowingly use judicial resources for a purely dilatory purpose with the sole objective of obstructing the orderly conduct of the judicial process in a calculated manner.
[30] This being said, however, it should be noted that there are two important guideposts that apply to the exercise of this discretion in a situation like the one in this appeal.
[31] The first guidepost relates to the specific context of criminal proceedings, in which the courts must show a certain flexibility toward the actions of defence lawyers. In considering the circumstances, the courts must bear in mind that the context of criminal proceedings differs from that of civil proceedings. In criminal cases, the rule is that costs are not awarded; no provision is made, for example, for awards of costs where extraordinary remedies are sought (Cronier, at p. 447). Awards of costs made against lawyers personally are therefore purely punitive and do not include the compensatory aspect costs have in civil cases.
[32] As well, the role of a defence lawyer is not comparable in every respect to that of a lawyer in a civil case. For example, the latter has an ethical duty to encourage compromise and agreement as much as possible. In contrast, a defence lawyer has no obligation to help the Crown in the conduct of its case. It is the very essence of the role of a defence lawyer to challenge, sometimes forcefully, the decisions and arguments of other players in the judicial system in light of the serious consequences they may have for the lawyer’s client: Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395, at paras. 64‑66, citing Histed v. Law Society of Manitoba, 2007 MBCA 150, 225 Man. R. (2d) 74, at para. 71. Indeed, committed and zealous advocacy for clients’ rights and interests and a strong and independent defence bar are essential in an adversarial system of justice: Groia v. Law Society of Upper Canada, 2016 ONCA 471, 131 O.R. (3d) 1, at para. 129; P. J. Monahan, “The Independence of the Bar as a Constitutional Principle in Canada”, in Law Society of Upper Canada, ed., In the Public Interest: The Report and Research Papers of the Law Society of Upper Canada’s Task Force on the Rule of Law & the Independence of the Bar (2007), 117. If these conditions are not met, the reliability of the process and the fairness of the trial will suffer: R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 25, quoting R. v. Joanisse (1995), 102 C.C.C. (3d) 35 (Ont. C.A.), at p. 57. In short, if costs are awarded against a lawyer personally in criminal proceedings, the purpose must not be to discourage the lawyer from defending his or her client’s rights and interests, and in particular the client’s right to make full answer and defence. From this point of view, the considerations to be taken into account in assessing the conduct of defence lawyers can be different from those that apply in the case of lawyers in civil proceedings.
[33] The second guidepost requires a court to confine itself to the facts of the case before it and to refrain from indirectly putting the lawyer’s disciplinary record, or indeed his or her career, on trial. The facts that can be considered in awarding costs against a lawyer personally must generally be limited to those of the case before the court. In its analysis, the court must not conduct an ethics investigation or seek to assess the whole of the lawyer’s practice. It is not a matter of punishing the lawyer “for his or her entire body of work”. To consider facts external to the case before the court can be justified only for the limited purpose of determining, first, the intention behind the lawyer’s actions and whether he or she was acting in bad faith, and, second, whether the lawyer knew, on bringing the impugned proceeding, that the courts do not approve of such proceedings and that this one was unfounded.
[34] In this regard, certain evidence that is external to the case before the court may sometimes be considered, because it is of high probative value and has a strong similarity to the alleged facts, in order to establish, for example, wilful intent and knowledge on the lawyer’s part. However, it must be limited to the specific issue before the court, that is, the lawyer’s conduct. It may not serve more broadly as proof of a general propensity or bad character (R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at paras. 71-72 and 82).
(3) Process to Be Followed
[35] This being said, a court obviously cannot award costs against a lawyer personally without following a certain process and observing certain procedural safeguards (Y.‑M. Morissette, “L’initiative judiciaire vouée à l’échec et la responsabilité de l’avocat ou de son mandant” (1984), 44 R. du B. 397, at p. 425). However, it is important that this process