The Federation of Ontario Law Associations (FOLA) is encouraged that local criminal lawyer Genevieve Eliany’s citation in contempt for not complying with Justice Michael Wendl’s request to produce a memo explaining the basis of a “s.276 application” at a judicial pre-trial was withdrawn this morning. FOLA attended the matter in court along with other advocates. FOLA is concerned that the contempt citation itself may be harmful, casting a quieting blanket over the advocate’s ability to represent clients resolutely and honourably.
FOLA questions whether statutory authority exists to compel a lawyer or authorize a pre-trial judge to provide this memo at a criminal judicial pre-trial hearing. We observe it is common practice not to provide this memo because a defendant can be placed into a prejudicial position by disclosing vital strategic information at the pre-trial stage. Forcing a lawyer to disclose the defendant’s position at this stage in a criminal proceeding can be unfair and against the principles of justice. Penalizing a lawyer by citing her in contempt for standing up for the principles of justice may further inflame the injustice.
In addition, a criminal lawyer working on a legal aid retainer may not be paid for the work involved in producing this memo. In a system already strapped for cash, this places further financial pressure on the lawyer to bear the burden of the financial troubles within the judicial system. A lawyer can volunteer to provide pro bono work but it is an extraordinary act to compel such work, especially when it is unnecessary and unfair to the client.
FOLA stands by the principle that courts must exercise significant care and restraint when citing lawyers in contempt. It is to be done in only the rarest and most extraordinary circumstances.
FOLA is a non-profit organization that represents Ontario’s 46 county and district law associations. Most of FOLA’s members are sole practitioners or work in small firms across the province.
Douglas W. Judson