Muzzling defence lawyers with ‘civility’

The Ontario legal regulator has done absurd things over the years, but the most egregious is to attack Joe Groia and make him the poster child of a civility campaign.

Jim Middlemiss

The Ontario legal regulator has done absurd things over the years, but the most egregious is to attack Joe Groia and make him the poster child of a civility campaign.

When the justice system is splitting at the seams, students can’t find jobs, unrepresented litigants are clogging courts and new competitors are emerging to eat lawyers’ lunches, the law society focuses on civility. Rome burns and Nero fiddles.

That decision will be judged at the highest level in November, when the Supreme Court of Canada considers Groia’s appeal of professional misconduct in the trial of former Bre-X executive John Felderhof, who was acquitted in 2007 of securities law charges.

It’s an uphill fight for Groia and his lawyer, Earl Cherniak. The Ontario Court of Appeal, in a 2-1 ruling, sided with the law society. For Cherniak, who is in his eighties, it’s likely his last argument at the top court. I hope he wins, because the prosecution of Joe Groia is a schoolyard dust-up run amok.

Yes, it was a nasty trial. Groia alleged prosecutorial misconduct and invoked sarcasm and rhetoric in his frustration over Stinchcombe disclosure and how documents were entered as evidence. The law society disliked Groia’s attack on prosecutor Jay Naster. In 2003, it sent Groia a letter warning it had reviewed “media reports” about the trial and was “monitoring” him. Groia was charged in 2009.

The stench of the charges has hung over him since, and don’t kid yourself, this prosecution has never passed the smell test.

Groia didn’t cuss in court, punch anyone or write a nasty letter to a judge; nor was he incompetent. In fact, the opposite is true: He got his client off on serious charges.

His biggest transgressions were a sharp tongue, piercing words and pushing back hard for his client, despite a threatening letter from Big Brother hanging over his head.

He’s paid the ultimate price. His legal bill is nearing $2 million (a defence fund has raised about $40,000) and he still faces a suspension and law society fine of $200,000, depending on how the SCC rules. He admits to “feeling the stress of the last eight to nine years.” While he said, “I hope I will win . . . I will just be glad it’s over.”

What concerns me is that it’s hard to take 160 days of trial and crunch it down to a few moments. A trial is like a book chapter or a life that plays out over time.

Groia’s case has become one of historical revisionism, with every level of court and tribunal doing what lawyers are so good at — second-guessing, navel gazing and using hindsight. Facts are cherry-picked or ignored to support viewpoints.

Lost in the noise has been the critical fact that trial judge Peter Hryn employed a long leash and let the litigators go at it. He also ordered full disclosure. Perturbed, the OSC prosecutors wanted Hryn kicked off the case for bias — a rarity in Canadian jurisprudence — but failed. That’s similar to alleging prosecutorial misconduct.

Justice Archie Campbell saw through the OSC’s tactic, noting the defence “has a right to make allegations of abuse of process and prosecutorial misconduct” and he refused to kick Hryn off, noting there was a “real basis for the defence concern about Mr. Naster’s failure to appreciate his duty to follow adverse rulings. Some of the problems in the trial arise from his overreaction to Mr. Groia’s needling and rhetorical excess.”

Campbell concluded that “neither side in this case has any monopoly over incivility or rhetorical excess.”

There’s the rub. In an adversarial system, it takes two to tango, yet Groia was the only one charged. No prosecutors were called on the carpet for their tactics in that trial.

Rather, the legal regulator circled the wagons around lawyers at the securities regulator, including Naster, who later worked for the law society on the prosecution of former Torys LLP lawyers Beth DeMerchant and Darren Sukonick.

The profession should be concerned about the Groia case because, in civility prosecutions, defence counsel wear the target on their back.

A 2013 paper by lawyer Don Bayne examined law society statistics from 2010 to 2012 and found that 88 per cent of the incivility complaints involving criminal lawyers were against defence counsel; only 12 per cent involved Crown counsel. Also, judges complain more about criminal lawyers than any other type of lawyer. Bayne identifies a number of instances where the prosecution crossed the line in the Felderhof case, but he notes that Crown counsel “bore no discipline measure of responsibility for its role in the Felderhof incivility.”

In his dissent in the Groia case, Ontario Court of Appeal Justice David Brown would have acquitted the brash litigator. He found Groia modified his conduct after a “public shaming” by senior courts to which the OSC complained. “They told Mr. Groia to cut it out and smarten up. He listened, and he did,” he wrote. Brown held the discipline panel “failed to give meaningful consideration to how the trial judge ruled on the complaints by the OSC about Mr. Groia’s conduct and how Mr. Groia responded to the trial judge’s rulings on those complaints.”

This is why the SCC should be wary of the law society stepping into the courtroom and determining through the hindsight of transcripts and media reports the atmosphere of a hard-fought trial.

Let’s hope the SCC sees it as broadly as Brown. Otherwise, litigators, get out your muzzle; the law society is watching you.

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