In the recent case of Quebec (Director of Criminal and Penal Prosecutions) v Jodoin, 2017 SCC 26 [Jodoin], the Supreme Court of Canada held that courts can impose personal costs awards against defence lawyers in exceptional circumstances.

In a previous blog post, we discussed how the Quebec courts were tasked with considering whether a defence lawyer should personally pay $3,000 in costs. The trial judge held that inappropriate procedural tactics used by the defence lawyer were an intentional attempt to frustrate the court’s ability to function, and therefore ordered the lawyer to pay costs personally. However, the Quebec Court of Appeal disagreed, holding that personal costs awards should only be made in exceptional or unusual circumstances of which, in its view, the present case was not.

This set the stage for an appeal to the Supreme Court of Canada, and in Jodoin a strong majority of the Court overturned the Court of Appeal and restored the trial judge’s order of personal costs against the defence lawyer.

In stating the law, the majority made two things clear:

  1. Courts have the inherent power to control abuses of process, which includes the power to order a lawyer to pay costs personally in both civil and criminal proceedings.
  2. The threshold for ordering a lawyer to pay costs personally is a high one, reserved for only exceptional cases where the actions of the lawyer seriously undermine the authority of the courts or the administration of justice.

The majority cautioned that only serious misconduct should attract orders of costs against a lawyer and noted that in practice courts have rarely exercised their power in this regard. That said, the high threshold test can be met where there is 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.” (at para 29)

The majority also provided two “guideposts” intended to help future courts navigate the issue of costs being ordered against a lawyer.

First, for criminal cases, courts should endeavour to show flexibility toward steps taken by defence lawyers. Because the general rule is that there should be no compensatory costs ordered in criminal proceedings, an order of costs against a criminal defence lawyer is purely punitive in nature. Courts must therefore show restraint in making these orders so that defence lawyers are not discouraged from zealously defending their clients.

Second, the majority stated that when an issue of costs against a lawyer is raised, a court should generally confine its analysis of the issue to the facts directly before it. The court should not go beyond these facts to consider, for example, the lawyer’s prior disciplinary record. The lawyer’s career is not to be put on trial, nor should the proceeding evolve into some sort of “ethics investigation”. In general, only the facts leading to the issue of costs being raised should be considered.

In the end, the Supreme Court of Canada has made clear that, while costs can be awarded against defence lawyers in certain exceptional circumstances, the threshold remains a high one. That threshold can be met, however, in cases like Jodoin, where a defence lawyer deliberately makes frivolous applications to a separate court in order to undermine the administration of justice.