Ethics and Canadian Criminal Law, a text co-authored by David Layton, was recently quoted in a case dealing with the withdrawal of counsel in a criminal matter. In Cunningham v. Lilles, a decision of the Yukon Supreme Court decided on June 16, 2006, defence counsel brought an application to be removed as counsel of record after Legal Aid cancelled the client's coverage. Justice Gower embarked on a lengthy discussion as to whether the court's permission to withdraw is required in Yukon, as is the case in most Canadian provinces, or whether instead defence counsel has an absolute right to withdraw regardless of the court's views. The latter position is often said to flow from a B.C. case called Leask v. Cronin.

Justice Gower quoted from Ethics and Canadian Criminal Law in setting out the reasons why courts should maintain some degree of supervisory jurisdiction over the withdrawal of counsel, including the need to ensure good management of criminal trials and to protect the client's interests. Justice Gower also quoted from the text to the effect that Leask v. Cronin may in some circumstances provide judges with the power to prevent counsel from withdrawing. Ultimately, Justice Gower concluded that counsel in the Yukon do require permission of the court to withdraw. He added that in cases where there is a breakdown in the client-lawyer relationship, the application to withdraw will be granted in all but the most exceptional circumstances. Where, however, the application is based on financial issues between client and lawyer, the request will be granted or denied based on an assessment of any resulting prejudice to the client and the administration of justice.

To read the judgment in Cunningham v. Lilles click here.