The comment from Earl Cherniak comes as a law society hearing panel ruled on Groia's actions in the proceedings against former Bre-X Minerals Ltd. vice chairman John Felderhof. It found "Groia's attacks on the prosecution were unjustified and therefore constituted conduct that fell below the standards of principles of civility, courtesy, and good faith required by the Rules of Professional Conduct."
"There's a very unhappy message for counsel," says Cherniak, who noted much of the evidence against his client stemmed from Court of Appeal proceedings related to Felderhof's matter during which Groia wasn't a party. While the appeal court was highly critical of Groia's aggressive tactics against the prosecution during Felderhof's trial, Cherniak notes the comments were in obiter and that his client had no right of appeal since he wasn't a party.
While the court ultimately acquitted Felderhof, the proceedings launched by the Ontario Securities Commission involving accusations of insider trading and issuing false or misleading statements over his sale of $83 million worth of shares in the company were particularly acrimonious with lawyers on both sides battling over issues such as disclosure. An exchange noted by the law society panel gave some of the flavour of the acrimony during a discussion about the documentary record. At one point, Groia told the court:
"When is the Crown going to accept the fact that they are prosecuting a case? Why do they stand before this court and continually whine about how unfair it is that the law in this country says if you want to prosecute Mr. Felderhof, you must do so in accordance with certain fundamental rules. . . . They don't care about the fact that when they stand up and say let's file it all, what they are trying to do is to backfill their case. They know they can't prove those documents and they hope that by wearing down the defence and making it impossible for the defence to represent Mr. Felderhof, they are going to get some concession from us that lets them dig themselves out of this huge hole they are in."
The case sparked intense debate among the bar about the limits lawyers can go to in defending their clients. Groia himself has emphasized the need to vigorously defend his client and argued the law society matter would send a chill to lawyers when it comes to how they handle their cases. It's an issue that's a concern for Brent Cotter, a professor and former dean of the College of Law at the University of Saskatchewan, who tells Legal Feeds he doesn't believe the panel "gave sufficient consideration to 'civility chill,' the risk that lawyers may moderate 'zealous advocacy' out of concern that it will be interpreted — and sanctioned — by the law society as 'incivility.'"
The law society panel, however, saw the issue quite differently. "Our system of justice is based on the premise that legal disputes should be resolved rationally in an environment of calm and measured deliberation, free from hostility, emotion, and other irrational or disruptive influences," wrote panel chairman Tom Conway.
"Incivility and discourteous conduct detracts from this environment, undermines public confidence, and impedes the administration of justice and the application of the rule of law. Put differently, incivility can compromise trial fairness and, in the context of a criminal trial in particular, the accused's right to a full answer and defence."
Conway went on to reject Groia's notion about compromising vigorous advocacy when he wrote that "the Rules of Professional Conduct serve to ensure a rational, calm environment, which leads to better and more timely decisions. Thus, when lawyers observe the rules governing professional conduct, civility enhances, rather than detracts from, a more efficient justice system, prevents unfair outcomes, and promotes greater access to justice for accused persons."
For his part, Cotter, who emphasizes he's in favour of civil and moderate dialogue, says he doesn't believe the case against Groia was very strong "given the overall context of a very bitterly fought trial in which, while the trial judge was occasionally critical of both counsel and often critical of Mr. Groia, did not cite him or, as far as I can tell, describe his behaviour as 'uncivil.' This issue is so clearly within the courts' oversight of lawyers, so if the court did not feel the need to address it with sanctions, ought the law society to be doing so?"
The law society has yet to set a date to hear submissions on penalty. Cotter believes the panel should restrain itself on that question. "Any penalty more serious than a reprimand would undoubtedly send this quite troubling message," he says in reference to the question of a civility chill.
Cherniak, meanwhile, notes Groia is "very disappointed" with the decision. "He remains of the view that his conduct of the Felderhof trial and the events leading up to it was justified and necessary by the way the prosecution against Mr. Felderhof was conducted by the Ontario Securities Commission in order to protect the rights of [his client], who was subjected to an unfair, and as the events showed, an unwarranted criminal prosecution.
"Fairly read, the evidence cited by the panel in support of its reasons supports Mr. Groia's innocence of the Law Society charges against him and not the conclusions of the panel."