Who should set the boundaries for a lawyer’s in-court conduct: the trial judge or law societies? This question featured prominently at the recent Supreme Court of Canada hearing of Joseph Peter Paul Groia v. Law Society of Upper Canada on appeal from the Ontario Court of Appeal. I attended the hearing, and I could not have picked a better first visit to the Supreme Court. All nine judges sat, and it was a hot bench, actively engaged with seasoned advocates arguing about the very thing they do best. The SCC seemed open to a shakeup, and I am cautiously optimistic that we could see an underdog’s victory.
Groia sponsored three University of Calgary students to attend his hearing, and I was among the three (which, I acknowledge, means this is not a neutral report of the case). We studied legal ethics and administrative law with Prof. Alice Woolley, who testified as an expert witness at Groia’s LSUC disciplinary hearing. Woolley selected us to come because we wrote facta on Groia’s SCC appeal.
So how did Groia find himself in the LSUC’s crosshairs? In 1999, the Ontario Securities Commission charged geologist John Felderhof with eight quasi-criminal securities offences in relation to the Bre-X gold mining scandal. Groia defended Felderhof, and it was during Felderhof’s trial that Groia allegedly misconducted himself by being “uncivil.”
The trial was hard-fought. At the outset, an OSC representative stood on the courthouse steps and announced that they were “simply [there] to seek a conviction.” After unsuccessful attempts at pre-trial management and a finding that the OSC had breached its Stinchcombe obligations, disputes over documentary disclosure and admissibility reached a fever pitch. This included, importantly, Groia alleging prosecutorial misconduct persistently, forcefully and, at times, sarcastically.
Felderhof was eventually acquitted, but Groia was not so lucky. The LSUC appeal panel found that while Groia’s repeated allegations of prosecutorial misconduct were made in good faith, he was nonetheless uncivil and deserving of a $200,000 fine and a one-month suspension. It was a steep fine and one whose severity is all the more shocking in light of the fact that, toward the end of the trial, due to Felderhof’s financial circumstances, Groia defended Felderhof for free.
But no good deed goes unpunished. Subsequent judicial review of the appeal panel’s decision was a shutout. Thus, the night before the hearing, we were not optimistic about Groia’s chances. Groia hosted a dinner for friends and family, and the wine served at dinner was from Groia’s winery, 16 Mile. I drank the red, a pinot noir called “Incivility.”
The next morning, we grabbed the last few seats in the courtroom, and the overflow rooms were packed. The many spectators were not left disappointed. Straight out of the gate, Earl Cherniak of Lerners LLP (for the appellant) zeroed in on the constitutional heart of the issue: the contours of the interrelated roles of the trial judge, the lawyer and the law society.
The court quickly moved on to specific inquiries about Cherniak’s formulation of the test for law society review of an advocate’s civility. There were concerns that the proposed test hinged too heavily on the trial judge’s response to conduct, thus immunizing in-court conduct against sanction when the trial judge chooses not to respond or, as Chief Justice Beverley McLachlin quipped, “Unless the ref calls the foul, it’s OK.” McLachlin later asked whether Cherniak would “accept a modification, which would be a more multi-factored test . . . in which the conduct of the trial judge would be an important factor,” which (perhaps naïvely) stirred up some excitement in our “Team Joe” corner of the courtroom.
The interveners also fielded specific questions about the formulation of the test, along with questions challenging the existence of a tension between the duties of zealous advocacy and civility. On this point, the quote of the day came from Joseph Arvay of Farris for the British Columbia Civil Liberties Association, who argued that “it is better that the administration of justice should tolerate the occasional punch below the belt rather than contemplate lawyers pulling their punches.”
Thomas Curry of Lenczner Slaght Royce Smith Griffin LLP represented the respondent. It was a tough day at the office for Curry. He had barely started when McLachlin point-blank asked him to define “civility,” which, to her amusement, he defined as a breach of the LSUC rules. The serious concerns came when Curry argued that lawyers must have a “reasonable foundation” for their allegations. One criticism was that this would threaten judicial independence by inviting law societies to make determinations of law appropriately made by judges. The chief justice further objected that the law evolves and that counsel must be free to make new arguments without fear of sanction. The court was particularly moved by an intervenor’s argument that in the police racial profiling case of R. v. Brown, neither the police officer’s nor the judge’s biases might ever have come to light if defence counsel feared not having a “reasonable foundation” to make such bold arguments.
Although administrative law class brought me to the capital, there was only one real question on standard of review. I heard no one (except perhaps Woolley) mourn its absence.
Cherniak argued that every lawyer has, at some point, wished that “[he] hadn’t put it quite that way.” The seasoned advocates I witnessed may have fewer of those moments. I hope the court’s decision will spare future advocates the trouble that Groia has experienced for his persistent sarcasm and stubbornness, because in the words of Arvay, “But for the grace of God, people would say that about me from time to time.”