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BARRISTERS AND SOLICITORS - Retention of counsel - Relationship with client

Wednesday, September 04, 2019 @ 8:50 AM  


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Determination of whether defence counsel could continue to act. Yates was charged with second degree murder. When court opened, the Crown advised that the preliminary inquiry would not proceed, as it was resolved, and presented a new information charging him with manslaughter. Defence counsel waived formal reading of the election, elected trial by judge and entered a guilty plea. The Crown advised that a joint submission would be made and asked that the matter be adjourned for sentencing submissions. When it returned, defence counsel advised that Yates instructed her to resile from the joint submission.

HELD: Defence counsel could not continue to act. Defence counsel clearly stated that the arrangement was for a joint submission on sentence in exchange for the Crown accepting a guilty plea to a lesser included offence. All counsel took steps in reliance on, and to implement, the agreement. Defence counsel could not accept and act on Yates’ instructions to resile from the agreement. In failing to withdraw, defence counsel acted contrary to the canon of ethics. If she were allowed to continue to act, public confidence in the administration of justice would be undermined and significant questions regarding the fairness of the trial would arise. Her breaches of the agreement and the duty to withdraw would remain as continuing breaches. There was a substantial likelihood that her interest might diverge from Yates’, due to the guilty plea.

R. v. Yates, [2019] S.J. No. 260, Saskatchewan Provincial Court, D.J. Kovatch Prov. Ct. J., July 18, 2019. Digest No. TLD-September22019004