A matter which began as a sexual assault trial in the Yukon has been elevated to national proportions and could set a pan-Canadian precedent for lawyers who wish to stop representing a client once court proceedings have begun.

The Supreme Court of Canada announced last month it will hear an argument between the Crown and the Law Society of Yukon over whether the court has the right to deny a lawyer's request to be removed from a case.

Currently, there are differing views on the matter. The B.C. Supreme Court has ruled that the court has no right to order a lawyer to keep defending a client when he or she wishes to leave the case.

In Alberta, Saskatchewan and Manitoba, a lawyer can be found in contempt of court for doing just that. Yukon courts have traditionally followed the lead of their peers on the West Coast.

The case began with Whitehorse lawyer Jennie Cunningham. She is no longer directly involved in the proceedings, although her name remains at the top of the file.

In June of 2006, Cunningham was defending a client against three sexual assault charges in territorial court.

The bill was being paid by legal aid. A month before the preliminary hearing was to be held, Cunningham's client took a job, so was no longer covered by legal aid.

Cunningham asked to be removed as counsel of record because, as she explained to the court, she did not want to do the work if she was not going to get paid.

Justice Heino Lilles, the territorial court judge hearing the case, refused to let her off, saying that doing so would harm both the accused's chances of receiving a fair trial and the Crown's case against him.

Cunningham took the case to the next-highest court, where the presiding judge was asked to throw out Lilles' decision on the grounds it was outside his jurisdiction as a territorial court judge. But Justice Leigh Gower of the Yukon Supreme Court said Lilles' decision was legally sound, so the case went one court higher, to the Yukon Court of Appeal.

At this point, the law society intervened, because, as society lawyer John Hunter explained to the court, a presiding judge should not be the one to discipline lawyers for splitting with their clients mid-trial.

That is the job of the relevant law society. Furthermore, the matters, personal or professional, between lawyer and client should remain exclusively between them.

Justice Mary Newbury of the Yukon Court of Appeal agreed with this argument.

She decided that by allowing the court to decide whether Cunningham should be able to remove herself from the case would put lawyer-client confidentiality at risk.

"A judge who is annoyed at the withdrawal of a lawyer may well be moved to ask for more information than the lawyer should disclose ... It would be understandably difficult for a court, concerned about protecting the integrity of its process, to resist questioning the lawyer."

These questions, she writes, could very easily stray into confidential territory and a lawyer would be faced with the choice between refusing to answer the court's query and betraying her client.

Furthermore, the judge wrote, if a lawyer was forced to continue representing a client who could not pay, she may be tempted to hurry the proceedings along, possibly compromising the case.

Crown counsel is now appealing that decision in the country's highest court, most likely, Hunter said, because the public prosecutors object to cases being delayed, sometimes indefinitely, when the defence counsel withdraws.

The Supreme Court of Canada will likely hear the case in the spring or fall of next year.