Canadian Underwriter

Lawyer defending accused impaired drivers sought ‘extraordinary remedies’ in alleging bias against two judges in a row: Supreme Court

May 14, 2017   by Canadian Underwriter

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A lawyer representing 10 motorists charged with drinking and driving-related criminal offences in Quebec has to pay $3,000 personally in costs after motions for writs of prohibition against judges were dismissed.

In a decision released Friday, the Supreme Court of Canada restored a ruling by Quebec Superior Court Justice Pierre Bellavance against defence lawyer Robert Jodoin. In 2013, Jodoin “was representing 10 clients charged with driving while impaired by alcohol or while their blood alcohol level exceeded the legal limit,” Justice Clement Gascon of the Supreme Court of Canada wrote.

“There were 12 cases, and they were joined for a hearing scheduled in the Court of Québec on a motion for disclosure of evidence.” Before the scheduled hearing began, Jodoin challenged the jurisdiction of the judge who was to preside over the hearing, alleging bias. Jodoin wrote writs of prohibition. Before those writs were served, crown and defence “learned that another judge would be presiding over the hearing instead,” Justice Gascon wrote. “The motions were therefore put aside, and the hearing on the motion for disclosure of evidence began.”

During the hearing, crown counsel stated it wanted to call an expert witness and Jodoin objected on the basis that he had not received proper notice. Section 657.3 (3) of the Criminal code of Canada stipulates that “a party who intends to call a person as an expert witness shall” give the opposing party notice “at least thirty days before the commencement of the trial or within any other period fixed by the justice or judge.”

Court records indicate that Jodoin requested a the hearing be postponed so that he could examine the resume of the crown expert witness. The judge presiding over the hearing “decided to authorize the examination in chief of the expert after the lunch break.” However Jodoin drew up new motions for writs of prohibition, “this time challenging the second judge’s jurisdiction and alleging, once again, bias on the judge’s part,” Justice Gascon added. The crown objected, arguing that “the sole purpose of these successive extraordinary remedies was to obtain a postponement for an ulterior motive,” Justice Gascon wrote.

In 2013, Justice Bellavance ruled that Jodoin’s motions “were unfounded and frivolous” and ordered Jodoin to pay $3,000 in costs, or $250 per case. Justice Bellavance ruled (in French) that Jodoin’s actions led “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,” Justice Gascon wrote.

The majority of Supreme Court of Canada judges agreed, ruling that Justice Bellavance’s decision was “consistent with the principles recently enunciated” by the Supreme Court of Canada in R v. Jordan, released in 2016.

Barrett Richard Jordan and Kristina Lorna-Marie Gaudet were arrested in 2008 in British Columbia and charged with with offences relating to possession and trafficking of cocaine and heroin. In 2012, they applied to the British Columbia Superior Court for a judicial stay of proceedings. Jordan and Gaudet argued that their right – under the Charter of Rights and Freedoms, to be “tried within a reasonable time,” was violated. The Supreme Court of Canada, agreed, in a decision released in July 8, 2016. In that ruling, the Supreme Court of Canada established a ” ceiling beyond which delay is presumptively unreasonable,” meaning that the Crown would have to convince a court that there are “exceptional circumstances.”

That ceiling is 18 months for cases going to trial in the provincial court and 30 months for cases going to trial in the superior court (or cases going to trial in the provincial court after a preliminary inquiry).

“If the total delay from the charge to the actual or anticipated end of trial (minus defence delay) exceeds the ceiling, then the delay is presumptively unreasonable,” wrote Supreme Court of Canada Justices Russell Brown, Michael Moldaver and Andromache Karakatsanis on behalf of the majority in Jordan.

“In Jordan, the Court emphasized the importance of timely justice and noted that all participants in the criminal justice system must co-operate in achieving reasonably prompt justice,” Justice Gascon wrote in 2017 in Quebec (Criminal and Penal Prosecutions) v. Jodoin. “From this perspective, it is essential to allow the courts to play their role as guardians of the integrity of the administration of justice by controlling proceedings and eliminating unnecessary delay. That is what the Superior Court did here.”

Essentially, the Quebec Court of Appeal agreed that Jodoin’s motions were unfounded but overturned the ruling on costs.

The Director of Criminal and Penal Prosecutions was successful on appeal.

The Court of Appeal of Quebec failed to identify either an error of law, a “palpable and overriding error in the motion judge’s analysis of the facts, or an unreasonable or clearly wrong exercise of his discretion,” Justice Gascon wrote on behalf of the majority in its ruling May 12, 2017. “A court obviously cannot award costs against a lawyer personally without following a certain process and observing certain procedural safeguards,” Justice Gascon added.

“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,” he added. “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.”

In his ruling in 2013, Justice Bellavance “properly analyzed the facts to find that the respondent’s acts constituted abusive conduct that was designed to indirectly obtain a postponement,” Justice Gason wrote.

Jodoin “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,” Justice Gascon added. “His subsequent conduct was consistent with this finding. It is quite odd, if not unprecedented, for a lawyer to file, on the same day and in the same cases, two series of motions for writs of prohibition against two different judges on the same ground of bias. The respondent 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 judge to conclude that the respondent had acted in bad faith and in a way that amounted to abuse of process, thereby seriously interfering with the administration of justice.”

In dissent, Justices Rosalie Silberman Abella and Suzanne Cote suggested that Jodoin’s actions “can easily be seen as an error of judgment, but hardly one justifying a personal costs order.”

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