Published On: Jan 31,2018
The Ontario Court of Appeal has recently ruled on the counsel’s ability to be withdrawn on counsel of record. The starting point for any analysis stems from the Supreme Court of Canada’s decision in Regina v. Cunningham,  1 SCR 331, 2010 SCC 10 (CanLII) where the Court laid out the following principles to guide the Courts when it hears applications by accused persons and counsel to be withdrawn as counsel of record:
 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.
 Assuming that timing is an issue, the court is entitled to enquire further. Counsel may reveal that he or she seeks to withdraw for ethical reasons, non-payment of fees, or another specific reason (e.g. workload of counsel) if solicitor-client privilege is not engaged. Counsel seeking to withdraw for ethical reasons means that an issue has arisen in the solicitor-client relationship where it is now impossible for counsel to continue in good conscience to represent the accused. Counsel may cite “ethical reasons” as the reason for withdrawal if, for example, the accused is requesting that counsel act in violation of his or her professional obligations (see, e.g., Law Society of Upper Canada, r. 2.09(7)(b), (d); Law Society of Alberta, c. 14, r. 2; Law Society of British Columbia, c. 10, r. 1), or if the accused refuses to accept counsel’s advice on an important trial issue (see, e.g., Law Society of Upper Canada, r. 2.09(2); Law Society of Alberta, c. 14, r. 1; Law Society of British Columbia, c. 10, r. 2). If the real reason for withdrawal is non-payment of legal fees, then counsel cannot represent to the court that he or she seeks to withdraw for “ethical reasons”. However, in either the case of ethical reasons or non-payment of fees, the court must accept counsel’s answer at face value and not enquire further so as to avoid trenching on potential issues of solicitor-client privilege.
 If withdrawal is sought for an ethical reason, then the court must grant withdrawal (see C. (D.D.), at p. 328, and Deschamps, at para. 23). Where an ethical issue has arisen in the relationship, counsel may be required to withdraw in order to comply with his or her professional obligations. It would be inappropriate for a court to require counsel to continue to act when to do so would put him or her in violation of professional responsibilities.
 If withdrawal is sought because of non-payment of legal fees, the court may exercise its discretion to refuse counsel’s request. The court’s order refusing counsel’s request to withdraw may be enforced by the court’s contempt power (C. (D.D.), at p. 327). In exercising its discretion on the withdrawal request, the court should consider the following non-exhaustive list of factors:
…I am telling Your Honour that there are issues that have arisen that result in a loss of confidence between Mr. Short and I…
…[A]nd I can tell you as an officer of the court, this is not me putting on top of a non-payment of fees, a paragraph that says there’s a loss of confidence just to get an easy way out. This is probably the most difficult decision I have done. In this particular case I have, without disclosing anything, done everything I can to move this case forward. After the second trial I wiped much of my calendar clean to get this second trial as quick as possible. Obviously, there were communications between my client and I that allowed me to make the decision to go forward, financially and for another, another, another, abound of reasons. But I am telling the [sic] today, is that having no funds, and not being able to disclose to you the communications between the client and I, that I cannot represent Mr. Short going forward. [Emphasis added.]It is also critical to note that the trial Court did not query the accused person because it was concerned about the possibility that confidential information would be related to the Court that would not have otherwise be the case if the application had not been made. The Crown Prosecutor objected to the application made by defence counsel. Oddly, the Crown advised the Court that only payment issues were cited to the preclusion of ethical issues, suggesting that the defence counsel was camouflaging the true nature and merits of the application. In accepting the Crown’s argument and rejecting defence counsel’s application to be removed as counsel of record, it stated: Given the weight and tenor of the balance of the affidavit dwelling on financial issues, I am forced to conclude that the reference to ethics in the adverb “ethically” has no basis in evidence. I am persuaded that [trial counsel’s] difficulties relate to payment of his accounts and not to an ethical dilemma.[Emphasis added.]