A Yukon case has led the Supreme Court of Canada to rule judges can order lawyers to remain on their cases, though it's an authority that should be used sparingly, the 23-page decision warns.

The unanimous ruling from the nine judges of the highest court in the country was handed down last Friday in the case that saw the Crown appeal the decision of the B.C./Yukon Court of Appeal.

That court found that territorial court Judge Heino Lilles didn't have the discretion to permit legal aid lawyer Jennie Cunningham to withdraw from a case when her client lost his legal aid funding.

The ruling was appealed by Cunningham to Yukon Supreme Court first, with that ruling coming down in Lilles' favour before it was appealed again to the B.C./Yukon Court of Appeal, which ruled in Cunningham's favour.

The Crown then appealed that ruling to the highest court in the land and last Friday, learned it had won.

"In sum, a court has the authority to control its own process and to supervise counsel who are officers of the court,” the 23-page decision reads.

"The Supreme Court of the Yukon Territory correctly concluded that the territorial court had the jurisdiction to refuse to grant counsel's request to withdraw.”

It goes on to note the jurisdiction should be exercised "exceedingly sparingly.”

"It is not appropriate for the court to refuse withdrawal where an adjournment will not be necessary, nor where counsel seeks withdrawal for ethical reasons.

"Where counsel seeks untimely withdrawal for non-payment of fees, the court must weigh the relevant factors and determine whether withdrawal would cause serious harm to the administration of justice.”

The case dates back to 2006, when Cunningham was defending Clinton Morgan, who was facing charges of sexual offences against a child.

Morgan was informed in May – a month before his preliminary hearing – that because he hadn't updated his financial information as required, Cunningham wasn't authorized to

represent him any longer.

"Ms. Cunningham promptly brought an application to the Territorial Court of the Yukon to withdraw as counsel of record,” the Supreme Court of Canada decision reads.

"The sole reason for the application was the suspension of legal aid funding and Mr. Morgan's inability to otherwise pay for legal services. Ms. Cunningham indicated that she

was willing to continue to represent Mr. Morgan if his legal aid funding was reinstated.”

In his decision, Lilles refused to grant Cunningham's request because:

• the legal aid funding could have potentially been reinstated and the lawyer was willing to continue with the case if it was;

• the charges against Morgan were very serious;

• there was a young child involved whose well-being could have been affected if there was a longer delay;

• there was no information about the potential of Morgan having other representation or when the preliminary hearing could be rescheduled if the withdrawal was allowed;

• of the importance of the preliminary hearing;

• there was an issue around evidence that would have been difficult for Morgan to deal with if representing himself; and

• further delays would prejudice Morgan, as he was labelled as a potential sex offender as a result of the charges.

Yukon Supreme Court Justice Leigh Gower later sided with Lilles when Cunningham made the appeal.

While the matter was moot by the time it came to the B.C./Yukon Court of Appeal since the trial was unnecessary (Morgan eventually pleaded guilty to sexually assaulting the young girl, while further charges of sexual interference and invitation to sexual touching were stayed), the appeal went ahead in order to get court guidance on the legal issue.

The court of appeal ruled in Cunningham's favour, finding that a court ruling on the withdrawal of a lawyer could create a conflict between the court's decision and the local law society.

It also found the court's supervision of a lawyer withdrawing from a case could potentially threaten solicitor-client privilege where a lawyer is asked to state reasons for withdrawing, and that "compelled representation” puts a lawyer in the possible position of conflict between the client's best interest and the lawyer's interest in ending the matter as soon as possible.

"It determined the better approach to withdrawal was to rely on the assumption that lawyers generally do not avoid their professional obligations and,

if they do, then the law societies will take disciplinary action,” the decision noted.

"The court acknowledged, however, that a court could use its contempt power ‘in extreme circumstances where a lawyer's conduct in connection with a withdrawal amounted to a serious affront to the administration of justice.' "

The case was then taken to the nation's top court.

Throughout its decision, the Supreme Court of Canada cites case law and the positions other courts have taken in the matter before reaching its conclusion.

While the judgment favours Lilles' decision, it notes that in deciding whether to allow a lawyer to withdraw from a case a judge must consider a number of factors, including:

• whether it is feasible for the accused to self-represent;

• other means of the accused finding representation;

• the impact on the accused if there's a delay, particularly if they are in custody;

• counsel's conduct, for example: if the accused was given reasonable notice to seek another lawyer or if the lawyer asked the court to withdraw at the earliest possible time;

• the impact on the Crown and any co-accused;

• the impact on complainants, witnesses and jurors;

• the fairness to defence counsel, including considering the expected length and complexity of the case; and

• history of the proceedings, such as if the accused has repeatedly changed lawyers.

"As these factors are all independent of the solicitor-client relationship, there is no risk of violating solicitor-client privilege when engaging in this analysis,” reads the decision.

"On the basis of these factors, the court must determine whether allowing withdrawal would cause serious harm to the administration of justice. If the answer is yes, withdrawal may be refused.”