A criminal court may exercise its inherent or necessarily implied jurisdiction to control its own process by overseeing lawyer withdrawal. This authority allows the court to require defence counsel who wishes to withdraw because of non-payment of legal fees to continue to represent the accused.
However, 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.
The Supreme Court of Canada in R. v. Cunningham, 2010 SCC 10 sets out a number of factors that courts should consider in determining whether permitting counsel of record to withdraw would cause serious harm to the administration of justice. These factors—the Supreme Court of Canada tells us—are independent of the solicitor-client relationship and there is no risk of violating solicitor-client privilege when engaging in the analysis.
If a court determines that serious harm would result, withdrawal may be refused.
Revealing that the Accused has not paid legal fees
Revealing that an accused has not paid his or her fees does not normally touch on the rationale for solicitor-client privilege in the criminal context.
R. v. Cunningham, 2010 SCC 10, at para. 27.
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 solicitor-client privilege. Rather, non-payment of legal fees in this context does not attract the protection of solicitor-client privilege in the first place.
R. v. Cunningham, 2010 SCC 10, at para. 31.
Withdrawal where no adjournment required
If counsel seeks to withdraw far enough in advance of any scheduled proceedings and an adjournment will not be necessary, then the court should allow the withdrawal. In this situation, there is no need for the court to enquire into counsel’s reasons for seeking to withdraw or require counsel to continue to act.
R. v. Cunningham, 2010 SCC 10, at para. 47.
Serious Harm to the Administration of Justice
If withdrawal is sought because of non-payment of legal fees, the court may exercise its discretion to refuse counsel’s request. In exercising its discretion on the withdrawal request, the court should consider the following non-exhaustive list of factors:
a. whether it is feasible for the accused to represent himself or herself;
b. other means of obtaining representation;
c. impact on the accused from delay in proceedings, particularly if the accused is in custody;
d. conduct of counsel, e.g. if counsel gave reasonable notice to the accused to allow the accused to seek other means of representation, or if counsel sought leave of the court to withdraw at the earliest possible time;
e. impact on the Crown and any co‑accused;
f. impact on complainants, witnesses and jurors;
g. fairness to defence counsel, including consideration of the expected length and complexity of the proceedings;
h. the history of the proceedings, e.g. if the accused has changed lawyers repeatedly.