Resolute Advocacy, the Notwithstanding Clause, and Counsel’s Conundrum: A note on Toronto (City) v Ontario (Attorney General)

Andrew Flavelle Martin, Allard School of Law at the University of British Columbia


A lawyer’s duties to the client must be balanced against, among other things, his or her duties to the court. There are some instructions that counsel should not follow. In Toronto (City) v Ontario (Attorney General), counsel for Ontario followed problematic instructions that I argue he should have refused. Ontario, while seeking leave pending appeal from a decision striking down legislation as an unjustifiable infringement of the Canadian Charter of Rights and Freedoms, had begun the process of passing a corresponding bill that invoked the Charter’s notwithstanding clause or override. During the stay hearing, counsel for Ontario stated that he had been instructed to inform the court that, if the stay were granted, the new bill would not proceed. In this note, I argue that counsel, in following this instruction, likely acted contrary to at least the spirit of two of his professional obligations as a lawyer. The first obligation was to not attempt to influence the court through legally irrelevant means. The second was to encourage respect for the administration of justice. I also argue that counsel following these instructions represents a failure of the Attorney General as chief law officer of the Crown. While expecting this level of compliance with the letter and spirit of the rules of professional conduct may appear – and even be – unrealistic, the legal profession should aspire to it nonetheless.