Groia v. Law Society of Upper Canada

Groia v. Law Society of Upper Canada
Collection
Supreme Court Judgments
Date
2018-06-01
Neutral citation
2018 SCC 27
Report
[2018] 1 SCR 772
Case number
37112
Judges
McLachlin, Beverley; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard; Gascon, Clément; Côté, Suzanne; Brown, Russell; Rowe, Malcolm
On appeal from
Ontario
Notes
Case in Brief
SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: Groia v. Law Society of Upper Canada, 2018 SCC 27, [2018] 1 S.C.R. 772
Appeal Heard: November 6, 2017 Judgment Rendered: June 1, 2018 Docket: 37112
Between:
Joseph Peter Paul Groia
Appellant
and
Law Society of Upper Canada
Respondent
- and -
Director of Public Prosecutions, Attorney General of Ontario, Attorney General of Saskatchewan, Law Society Tribunal, Advocates’ Society, Barreau du Québec, Canadian Civil Liberties Association, British Columbia Civil Liberties Association, Independent Criminal Defence Advocacy Society, Federation of Law Societies of Canada, Ontario Crown Attorneys’ Association, Ontario Trial Lawyers Association, Canadian Bar Association and Criminal Lawyers’ Association of Ontario
Interveners
Coram: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ.
Reasons for Judgment: (paras. 1 to 161)
Moldaver J. (McLachlin C.J. and Abella, Wagner and Brown JJ. concurring)
Concurring Reasons: (paras. 162 to 174)
Côté J.
Dissenting Reasons: (paras. 175 to 233)
Karakatsanis, Gascon and Rowe JJ.
Groia v. Law Society of Upper Canada, 2018 SCC 27, [2018] 1 S.C.R. 772
Joseph Peter Paul Groia Appellant
v.
Law Society of Upper Canada Respondent
and
Director of Public Prosecutions,
Attorney General of Ontario,
Attorney General of Saskatchewan,
Law Society Tribunal,
Advocates’ Society,
Barreau du Québec,
Canadian Civil Liberties Association,
British Columbia Civil Liberties Association,
Independent Criminal Defence Advocacy Society,
Federation of Law Societies of Canada,
Ontario Crown Attorneys’ Association,
Ontario Trial Lawyers Association,
Canadian Bar Association and
Criminal Lawyers’ Association of Ontario Interveners
Indexed as: Groia v. Law Society of Upper Canada
2018 SCC 27
File No.: 37112.
2017: November 6; 2018: June 1.
Present: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ.
on appeal from the court of appeal for ontario
Law of professions — Discipline — Barristers and solicitors — In‑court incivility — Law Society bringing disciplinary proceedings against lawyer based on uncivil behaviour during trial — Lawyer found guilty of professional misconduct by disciplinary tribunal — Approach for assessing whether in‑court incivility amounts to professional misconduct — Whether decision reasonable.
Administrative law — Appeals — Standard of review — Law Society disciplinary tribunal — Standard of review applicable to Law Society’s decision finding lawyer guilty of professional misconduct for in‑court incivility.
G, a lawyer, was hired by F to defend him against charges of insider trading and authorizing misleading news releases brought against him by the Ontario Securities Commission (“OSC”). F’s trial was characterized by a pattern of escalating acrimony and by a series of disputes between G and the OSC prosecutors, which included personal attacks, sarcastic outbursts and allegations of professional impropriety made by G. In particular, the OSC prosecutors and G disagreed over the scope of the OSC’s disclosure obligations and the format of such disclosure, as well as over the admissibility of documents. Much of the disagreement stemmed from G’s honest but mistaken understanding of the law of evidence and the role of the prosecutor. During the trial, despite the frequency and fervor of the dispute, the trial judge initially adopted a hands‑off approach, but he finally directed G to stop repeating his misconduct allegations. G largely followed the trial judge’s directions. Evidentiary disputes were eventually resolved and the trial was completed, with F being acquitted on all charges.
After F’s trial, the Law Society brought disciplinary proceedings against G on its own motion, alleging professional misconduct based on his uncivil behaviour during the trial. A three‑member panel of the Law Society Hearing Panel found G guilty of professional misconduct, suspended his licence to practice law for two months and ordered him to pay nearly $247,000 in costs. On appeal by G, the Law Society Appeal Panel also concluded that G was guilty of professional misconduct, but it reduced G’s suspension to one month and decreased the costs award against him to $200,000. In its decision, the Appeal Panel developed a multi‑factorial, context‑specific approach for assessing whether in‑court incivility amounts to professional misconduct. The Divisional Court upheld the Appeal Panel’s decision as reasonable. A majority of the Court of Appeal dismissed G’s further appeal.
Held (Karakatsanis, Gascon and Rowe JJ. dissenting): The appeal should be allowed.
Per McLachlin C.J. and Abella, Moldaver, Wagner and Brown JJ.: The Appeal Panel’s decision should be reviewed for reasonableness. This Court’s decisions establish that a reasonableness standard applies to law society misconduct findings and sanctions. Moreover, post‑Dunsmuir jurisprudence has firmly entrenched the notion that decisions of specialized administrative bodies interpreting their own statute or statutes closely connected to their function are entitled to deference from courts, and are thus presumptively reviewed for reasonableness. That presumption applies here: the Appeal Panel’s approach to determining when incivility amounts to professional misconduct and its application of that approach in assessing a lawyer’s conduct involve an interpretation of the Rules of Professional Conduct enacted under its home statute and the discretionary application of general principles to the facts before it.
The presumption of deference is not rebutted. Determining when in‑court behaviour amounts to professional misconduct does not fall under the category of questions of central importance to the legal system as a whole and outside the decision‑maker’s expertise, for which correctness review would be appropriate. Although the permissible scope of lawyers’ behaviour is arguably of central importance to the legal system as a whole, it cannot be said that assessing whether incivility amounts to professional misconduct is outside the Law Society’s expertise. To the contrary, law society disciplinary tribunals have significant expertise regulating the legal profession, and Law Society disciplinary panels are composed, in part, of other lawyers, who are aware of the problems and frustrations that confront a practitioner. Furthermore, a deferential standard of review does not threaten a trial judge’s power to control his or her courtroom. A trial judge is free to control the conduct in his or her courtroom irrespective of the degree of deference accorded to a law society’s disciplinary decision by a different court. The fact that the behaviour occurs in a courtroom is an important contextual factor that must be taken into account when evaluating whether that behaviour amounted to professional misconduct; but it does not impact on the standard of review.
The multi‑factorial, context‑specific approach developed by the Appeal Panel for assessing whether a lawyer’s in‑court behaviour crosses the line into professional misconduct on the basis of incivility is appropriate. First, the Appeal Panel recognized the importance of civility to the legal profession and the corresponding need to target behaviour that detrimentally affects the administration of justice and the fairness of a particular proceeding. At the same time, it remained sensitive to the lawyer’s duty of resolute advocacy — a duty of particular importance in the criminal context because of the client’s constitutional right to make full answer and defence. The Appeal Panel recognized the need to develop an approach that would avoid a chilling effect on the kind of fearless advocacy that is at times necessary to advance a client’s cause.
Second, the Appeal Panel developed an approach that is both flexible and precise. A rigid definition of when incivility amounts to professional misconduct in the courtroom is neither attainable nor desirable; rather, determining whether a lawyer’s behaviour warrants a finding of professional misconduct must remain a context‑specific inquiry that is flexible enough to assess behaviour arising from the diverse array of situations in which lawyers find themselves. Yet, standards of civility must be articulated with a reasonable degree of precision. The Appeal Panel’s approach strikes a reasonable balance between flexibility and precision: it sets a reasonably precise benchmark that instructs lawyers as to the permissible bounds of ethical courtroom behaviour, by articulating a series of contextual factors — what the lawyer said, the manner and frequency in which it was said, and the presiding judge’s reaction to the lawyer’s behaviour — that ought generally to be considered when evaluating a lawyer’s conduct, and by describing how those factors operate when assessing a lawyer’s behaviour.
With respect to what the lawyer said, while not a standalone “test”, the Appeal Panel determined that prosecutorial misconduct allegations, or other challenges to opposing counsel’s integrity, cross the line into professional misconduct unless they are made in good faith and have a reasonable basis. Requiring a reasonable basis for allegations protects against unsupportable attacks that tarnish opposing counsel’s reputation without chilling resolute advocacy. However, the reasonable basis requirement is not an exacting standard. It is not professional misconduct on account of incivility to challenge opposing counsel’s integrity based on a sincerely held but incorrect legal position so long as the challenge has a sufficient factual foundation, such that if the legal position were correct, the challenge would be warranted. Nor is it professional misconduct to advance a novel legal argument that is ultimately rejected by the court. The good faith inquiry asks what the lawyer actually believed when making the allegations. In contrast, the “reasonable basis” inquiry requires a law society to look beyond what the lawyer believed, and examine the foundation underpinning the allegations. Looking at the reasonableness of a lawyer’s legal position at this stage would, in effect, impose a mandatory minimum standard of legal competence in the incivility context — this would allow a law society to find a lawyer guilty of professional misconduct on the basis of incivility for something the lawyer, in the law society’s opinion, ought to have known or ought to have done. This would risk unjustifiably tarnishing a lawyer’s reputation and chilling resolute advocacy.
With respect to the frequency of what was said and the manner in which it was said, the Appeal Panel noted that, as a general rule, repetitive personal attacks and those made using demeaning, sarcastic, or otherwise inappropriate language are more likely to warrant disciplinary action. As for the presiding judge’s reaction to the lawyer’s behaviour, when the impugned behaviour occurs in a courtroom, what, if anything, the judge does about it and how the lawyer modifies his or her behaviour thereafter becomes relevant.
Finally, the Appeal Panel’s approach also allows law society disciplinary tribunals to proportionately balance the lawyer’s expressive freedom with its statutory mandate in any given case. The flexibility built into the Appeal Panel’s context‑specific approach to assessing a lawyer’s behaviour allows for a proportionate balancing in any given case. Considering the unique circumstances in each case enables law society disciplinary tribunals to accurately gauge the value of the impugned speech. This, in turn, allows for a decision, both with respect to a finding of professional misconduct and any penalty imposed, that reflects a proportionate balancing of the lawyer’s expressive rights and the Law Society’s statutory mandate.
Although the approach that it set out was appropriate, the Appeal Panel’s finding of professional misconduct against G on the basis of incivility was unreasonable. First, even though the Appeal Panel accepted that G’s allegations of prosecutorial misconduct were made in good faith, it used his honest but erroneous legal beliefs as to the disclosure and admissibility of documents to conclude that his allegations lacked a reasonable basis. The Appeal Panel acknowledged that submissions made on the basis of a sincerely held but erroneous legal belief cannot ground a finding of professional misconduct, and accepted that in making his allegations of impropriety against the OSC prosecutors, G was not deliberately misrepresenting the law and was not ill‑motivated. Despite this, the Appeal Panel used G’s legal errors to conclude that he had no reasonable basis for his repeated allegations of prosecutorial impropriety. Such a finding was not reasonably open to the Appeal Panel. Allegations of prosecutorial misconduct based on a sincerely held but mistaken legal belief will be reasonably based as long as they have a sufficient factual foundation. The question for incivility purposes is not whether G was right or wrong on the law; rather, the question is whether, based on his understanding of the law, his allegations of prosecutorial misconduct, which the Appeal Panel found were made in good faith, had a factual foundation. In this case, they did. G’s legal errors, coupled with the OSC prosecutors’ conduct, provided the reasonable basis for his allegations. Accordingly, based on the Appeal Panel’s own approach, G’s allegations were made in good faith and they were reasonably based.
Second, the other contextual factors in this case could not reasonably support a finding of professional misconduct against G on the basis of incivility. The evolving abuse of process law at the time accounts, at least in part, for the frequency of G’s allegations; the presiding judge took a passive approach in the face of G’s allegations; and G’s behaviour changed in response to the directions of the trial judge. The Appeal Panel failed to account for these contextual factors in its analysis. The only conclusion that was reasonably open to the Appeal Panel on the record before it was a finding that G was not guilty of professional misconduct. Because G, in the circumstances of this case, could not reasonably be found guilty of professional misconduct, the complaints against him are dismissed and there is no need to remit the matter to the Law Society.
Per Côté J.: There is agreement with the majority that the Appeal Panel erred in finding that G committed professional misconduct and that there is no need to remit the matter back to the Law Society.
However, there is disagreement as to the applicable standard of review. The Appeal Panel’s finding of professional misconduct is reviewable on the correctness standard on the basis that the impugned conduct occurred in a courtroom. Applying the approach set out in Dunsmuir, this Court’s existing jurisprudence does not dictate the standard of review in this appeal. The context of this case is different in one critical — and dispositive — respect: the impugned conduct occurred before a judge in open court. The fact that the relevant conduct occurred in a court of law implicates constitutional imperatives about the judiciary’s independence and its capacity to control its own processes, and rebuts the presumption of reasonableness. Correctness review is required because the Law Society’s inquiry into in‑court professional misconduct engages the contours of the constitutional relationship between the courts and government regulators. Judicial independence is, without question, a cornerstone of Canadian democracy. It is essential to both the impartiality of the judiciary and the maintenance of the rule of law. An inquiry by a law society into a lawyer’s in‑court conduct risks intruding on the judge’s function of managing the trial process and his authority to sanction improper behaviour. To protect judicial independence, and the authority of judges to manage the proceedings before them in the manner they see fit, the judiciary — not a regulatory body, a creature of the political branches of government — should have the final say over the appropriateness of a lawyer’s conduct in that sphere. The reasonableness standard of review, which requires judicial deference to a law society’s disciplinary determinations, is inconsistent with this prerogative. Therefore, correctness review is required to ensure proper respect for the judiciary’s constitutionally guaranteed place in our democracy.
Per Karakatsanis, Gascon and Rowe JJ. (dissenting): There is agreement with the majority that reasonableness is the applicable standard of review. The simple fact that a lawyer’s behavior occurs in the courtroom does not deprive the Law Society of its legitimate role in regulating the profession nor does it justify heightened judicial scrutiny. There is also agreement with the majority that, in articulating a standard of professional misconduct, the Appeal Panel reasonably set out a contextual approach which will vary according to the particular factual matrix in which it is applied.
However, the majority’s disposition in this appeal is disagreed with. The Appeal Panel’s decision was reasonable and there is no basis to interfere. Accordingly, the appeal should be dismissed. The majority fundamentally misstates the Appeal Panel’s approach to professional misconduct and reweighs the evidence to reach a different result. This is inconsistent with reasonableness review as it substitutes the Court’s judgment for that of the legislature’s chosen decision maker. Where, as here, the standard of review analysis leads to the application of reasonableness, deference is not optional. Deference bars a reviewing court from conducting an exacting criticism of a decision in order to reach the result that the decision was unreasonable. It follows that a reviewing court also cannot supplement the decision maker’s reasoning for the purpose of undermining it. Neither may a court reweigh evidence or contextual factors considered by the decision maker. At all times, the starting point of reasonableness review is the reasons for the decision under review. There is no basis on this record to interfere with the Appeal Panel’s decision. Its analysis was cogent, logical, transparent and grounded in the evidence.
A reviewing court should give effect to the Appeal Panel’s decision to adopt an approach with both subjective and objective considerations (i.e. to require good faith and a reasonable basis for allegations of prosecutorial misconduct or that impugn the integrity of an opponent). It was open to the Appeal Panel to consider both the factual and legal bases for the allegations at issue, and to conclude that there was no reasonable basis in fact or in law for G’s allegations. The Appeal Panel’s mandate permits it to determine any question of fact or law that arises in a proceeding before it. As such, the Appeal Panel was entitled to consider whether there is a reasonable basis for the allegations. Reasonableness, as opposed to good faith, implies consideration of whether the allegations, objectively, had a legal or factual basis. The Appeal Panel’s approach is justified by the serious consequences that irresponsible attacks can have on opposing counsel’s reputation as well as the public perception of the justice system. Collapsing the subjective and objective elements of this approach restricts the Appeal Panel’s ability to assess the reasonableness of legal submissions to determining whether the lawyer was acting in good faith. It was open to the Appeal Panel to hold that a lawyer who erroneously alleges prosecutorial misconduct or impugns the integrity of opposing counsel should not be shielded from professional sanction because of his or her own incompetence.
In determining whether G’s allegations crossed the line into professional misconduct, the Appeal Panel applied its expertise and decided how to assess the evidence as a whole. It was open to the Appeal Panel to weigh the evidence in the way it did. Its findings were amply supported by the record, as were its conclusions on the cumulative effects of G’s conduct. Ultimately, the reasons supported the Appeal Panel’s conclusion that G was engaged in professional misconduct. Both the evidentiary foundation and the logic of the reasons were sound. The decision was justifiable, intelligible, and transparent and fell within the range of reasonable outcomes.
The Appeal Panel’s decision also proportionately balanced the value of freedom of expression with its mandate to ensure that lawyers conduct themselves professionally. The Appeal Panel was alert to the importance of lawyers’ expressive freedoms and the critical role of zealous advocacy in our system. In order to ensure that these principles were limited no more than necessary, the Appeal Panel adopted a contextual approach that took into account the dynamics of the courtroom setting. It was reasonable for the Appeal Panel to conclude that in the context of this trial, zealous advocacy did not require G to make unfounded allegations of prosecutorial misconduct, to impugn the integrity of his opponents or to frequently resort to invective when describing them.
There are a number of concerns about the implications that follow from the majority’s decision: they immunize erroneous allegations from sanction by the Law Society, validate improper conduct and threaten to undermine the administration of justice and the culture change that the Court has called for in recent years. Moreover, setting aside the decision of the Appeal Panel has the potential to undermine the ability of law societies to promote the efficient resolution of disputes. Law societies are important actors in the culture change that is needed. Their decisions respecting professional misconduct should be approached with deference.
Cases Cited
By Moldaver J.
Applied: Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247; Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395; referred to: R. v. Felderhof, 2007 ONCJ 345, 224 C.C.C. (3d) 97; R. v. Felderhof, 2002 CanLII 41888, aff’d (2003), 68 O.R. (3d) 481; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R 190; Canadian National Railway Co. v. Canada (Attorney General), 2014 SCC 40, [2014] 2 S.C.R. 135; Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, [2016] 2 S.C.R. 293; Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2 S.C.R. 3; McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895; R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445; Green v. Law Society of Manitoba, 2017 SCC 20, [2017] 1 S.C.R. 360; Canadian National Railway Co. v. McKercher LLP, 2013 SCC 39, [2013] 2 S.C.R. 649; Re Stevens and Law Society of Upper Canada (1979), 55 O.R. (2d) 405; Beauregard v. Canada, [1986] 2 S.C.R. 56; Valente v. The Queen, [1985] 2 S.C.R. 673; Marchand (Litigation Guardian of) v. Public General Hospital Society of Chatham (2000), 51 O.R. (3d) 97; Phillips v. Ford Motor Co. (1971), 18 D.L.R. (3d) 641; Canada (Attorney General) v. Federation of Law Societies of Canada, 2015 SCC 7, [2015] 1 S.C.R. 401; Quebec (Director of Criminal and Penal Prosecutions) v. Jodoin, 2017 SCC 26, [2017] 1 S.C.R. 478; Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130; R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167; R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659; R. v. O’Connor, [1995] 4 S.C.R. 411; Pappajohn v. The Queen, [1980] 2 S.C.R. 120; R. v. Bulmer, [1987] 1 S.C.R. 782; R. v. Moreau (1986), 26 C.C.C. (3d) 359; Histed v. Law Society of Manitoba, 2007 MBCA 150, 225 Man. R. (2d) 74; Law Society of Upper Canada v. Wagman, 2008 ONLSAP 14; Brouillard v. The Queen, [1985] 1 S.C.R. 39; R. v. Henderson (1999), 44 O.R. (3d) 628; Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 S.C.R. 613; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Montréal (City) v. 2952‑1366 Québec Inc., 2005 SCC 62, [2005] 3 S.C.R. 141; R. v. Keegstra, [1990] 3 S.C.R. 697; RJR‑MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; R. v. La, [1997] 2 S.C.R. 680; R. v. Clement (2002), 166 C.C.C. (3d) 219; Giguère v. Chambre des notaires du Québec, 2004 SCC 1, [2004] 1 S.C.R. 3.
By Côté J.
Applied: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; distinguished: Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247; Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395; referred to: McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895; Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35, [2012] 2 S.C.R. 283; Reference Re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3; Beauregard v. Canada, [1986] 2 S.C.R. 56; Mackeigan v. Hickman, [1989] 2 S.C.R. 796.
By Karakatsanis, Gascon and Rowe JJ. (dissenting)
Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339; Dr. Q v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226; British Columbia (Workers’ Compensation Appeal Tribunal) v. Fraser Health Authority, 2016 SCC 25, [2016] 1 S.C.R. 587; Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3; Lake v. Canada (Minister of Justice), 2008 SCC 23, [2008] 1 S.C.R. 761; Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748; Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395; Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29, [2016] 1 S.C.R. 770; R. v. Felderhof (2003), 235 D.L.R. (4th) 131; R. v. Felderhof, 2002 CanLII 41888; R. v. Felderhof, 2003 CanLII 41569; R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631; Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87; R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 2 (b), 7 .
Law Society Act, R.S.O. 1990, c. L.8, ss. 4.1, 4.2, 34(1), 49.35(1), 62(0.1)10.
Professional Conduct Handbook made under the Law Society Act, R.S.O. 1980, c. 233 (effective January 30, 1987 to October 31, 2000).
Rules of Professional Conduct made under the Law Society Act, R.S.O. 1990, c. L.8 (effective November 1, 2000 to September 30, 2014), rr. 2.01, 4.01(1), (6), 6.03(1).
Rules of Professional Conduct made under the Law Society Act, R.S.O. 1990, c. L.8 (effective October 1, 2014 and updated September 28, 2017), rr. 2.1‑1, 2.1‑2, 3.1, 5.1‑1, 5.1‑5, 5.6‑1, 7.2‑1, 7.2‑4.
Authors Cited
Code, Michael. “Counsel’s Duty of Civility: An Essential Component of Fair Trials and an Effective Justice System” (2007), 11 Can. Crim. L.R. 97.
Cory, Peter deC. The Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Consideration of Entitlement to Compensation. Winnipeg: Manitoba Justice, 2001.
Dyzenhaus, David. “The Politics of Deference: Judicial Review and Democracy”, in Michael Taggart, ed., The Province of Administrative Law. Oxford: Hart, 1997, 279.
Federation of Law Societies of Canada. Model Code of Professional Conduct (updated March 14, 2017), rule 5.1‑1 commentary 1 (online: https://flsc.ca/wp-content/uploads/2018/03/Model-Code-as-amended-March-2017-Final.pdf; archived version: http://www.scc-csc.ca/cso-dce/2018SCC-CSC27_1_eng.pdf ).
Morden, John W. “Notes for Convocation Address — Law Society of Upper Canada, February 22, 2001”, in Law Society of Upper Canada, ed., Plea Negotiations: Achieving a “Win‑Win” Result. Toronto: Law Society of Upper Canada, 2003, 1‑1.
Nagorney, Kara Ann. “A Noble Profession? A Discussion of Civility Among Lawyers” (1999), 12 Geo. J. Legal Ethics 815.
Pue, W. Wesley. “Becoming ‘Ethical’: Lawyers’ Professional Ethics in Early Twentieth Century Canada”, in Dale Gibson and W. Wesley Pue, eds., Glimpses of Canadian Legal History. Winnipeg: Legal Research Institute of the University of Manitoba, 1991, 237.
Woolley, Alice. “Does Civility Matter?” (2008), 46 Osgoode Hall L.J. 175.
Woolley, Alice. Understanding Lawyers’ Ethics in Canada, 2nd ed. Toronto: LexisNexis, 2016.
APPEAL from a judgment of the Ontario Court of Appeal (MacPherson, Cronk and Brown JJ.A.), 2016 ONCA 471, 131 O.R. (3d) 1, 352 O.A.C. 210, 358 C.R.R. (2d) 1, 1 Admin L.R. (6th) 175, [2016] O.J. No. 3094 (QL), 2016 CarswellOnt 9453 (WL Can.), affirming a decision of the Divisional Court (Sachs, Nordheimer and Harvison Young JJ.), 2015 ONSC 686, 124 O.R. (3d) 1, 330 O.A.C. 202, 382 D.L.R. (4th) 337, [2015] O.J No. 444 (QL), 2015 CarswellOnt 1238 (WL Can.), which affirmed a decision of the Law Society Appeal Panel, 2013 ONLSAP 41, [2013] L.S.D.D. No. 186 (QL), 2013 CarswellOnt 19188 (WL Can.), which affirmed in part a decision of the Law Society Hearing Panel, 2012 ONLSHP 94, [2012] L.S.D.D. No. 92 (QL). Appeal allowed, Karakatsanis, Gascon and Rowe JJ. dissenting.
Earl A. Cherniak, Q.C., and Martin Mendelzon, for the appellant.
J. Thomas Curry, Jaan E. Lilles and Andrew M. Porter, for the respondent.
James D. Sutton and Allyson Ratsoy, for the intervener the Director of Public Prosecutions.
Milan Rupic, for the intervener the Attorney General of Ontario.
Sharon H. Pratchler, Q.C., for the intervener the Attorney General of Saskatchewan.
Lisa Mallia, for the intervener the Law Society Tribunal.
Terrence J. O’Sullivan, Deborah C. Templer and Matthew R. Law, for the intervener the Advocates’ Society.
André‑Philippe Mallette, for the intervener Barreau du Québec.
Cara Zwibel, for the intervener the Canadian Civil Liberties Association.
Joseph J. Arvay, Q.C., and Catherine George, for the interveners the British Columbia Civil Liberties Association and the Independent Criminal Defence Advocacy Society.
Gregory DelBigio, Q.C., and Alison M. Latimer, for the intervener the Federation of Law Societies of Canada.
Paul Cavalluzzo and Adrienne Telford, for the intervener the Ontario Crown Attorneys’ Association.
Allan Rouben, Thomas Connolly and Darcy Romaine, for the intervener the Ontario Trial Lawyers Association.
Pierre Bienvenu, Andres C. Garin and Jean‑Christophe Martel, for the intervener the Canadian Bar Association.
Frank Addario, Samara Secter and Robin Parker, for the intervener the Criminal Lawyers’ Association of Ontario.
The judgment of McLachlin C.J. and Abella, Moldaver, Wagner and Brown JJ. was delivered by
Moldaver J. —
I. Overview
[1] The trial process in Canada is one of the cornerstones of our constitutional democracy. It is essential to the maintenance of a civilized society. Trials are the primary mechanism whereby disputes are resolved in a just, peaceful, and orderly way.
[2] To achieve their purpose, it is essential that trials be conducted in a civilized manner. Trials marked by strife, belligerent behaviour, unwarranted personal attacks, and other forms of disruptive and discourteous conduct are antithetical to the peaceful and orderly resolution of disputes we strive to achieve.
[3] By the same token, trials are not — nor are they meant to be — tea parties. A lawyer’s duty to act with civility does not exist in a vacuum. Rather, it exists in concert with a series of professional obligations that both constrain and compel a lawyer’s behaviour. Care must be taken to ensure that free expression, resolute advocacy and the right of an accused to make full answer and defence are not sacrificed at the altar of civility.
[4] The proceedings against the appellant, Joseph Groia, highlight the delicate interplay that these considerations give rise to. At issue is whether Mr. Groia’s courtroom conduct in the case of R. v. Felderhof, 2007 ONCJ 345, 224 C.C.C. (3d) 97, warranted a finding of professional misconduct by the Law Society of Upper Canada. To be precise, was the Law Society Appeal Panel’s finding of professional misconduct against Mr. Groia reasonable in the circumstances? For the reasons that follow, I am respectfully of the view that it was not.
[5] The Appeal Panel developed an approach for assessing whether a lawyer’s uncivil behaviour crosses the line into professional misconduct. The approach, with which I take no issue, targets the type of conduct that can compromise trial fairness and diminish public confidence in the administration of justice. It allows for a proportionate balancing of the Law Society’s mandate to set and enforce standards of civility in the legal profession with a lawyer’s right to free speech. It is also sensitive to the lawyer’s duty of resolute advocacy and the client’s constitutional right to make full answer and defence.
[6] Moreover, the Appeal Panel’s approach is flexible enough to capture the broad array of situations in which lawyers may slip into uncivil behaviour, yet precise enough to guide lawyers and law societies on the scope of permissible conduct.
[7] That said, the Appeal Panel’s finding of professional misconduct against Mr. Groia on the basis of incivility was, in my respectful view, unreasonable. Even though the Appeal Panel accepted that Mr. Groia’s allegations of prosecutorial misconduct were made in good faith, it used his honest but erroneous views as to the disclosure and admissibility of documents to conclude that his allegations lacked a reasonable basis. However, as I will explain, Mr. Groia’s allegations were made in good faith and they were reasonably based. As such, the allegations themselves could not reasonably support a finding of professional misconduct.
[8] Nor could the other contextual factors in this case reasonably support a finding of professional misconduct against Mr. Groia on the basis of incivility. The evolving abuse of process law at the time accounts, at least in part, for the frequency of Mr. Groia’s allegations; the presiding judge took a passive approach in the face of Mr. Groia’s allegations; and when the presiding judge and reviewing courts did direct Mr. Groia, apart from a few slips, he listened. The Appeal Panel failed to account for these contextual factors in its analysis. In my view, the only conclusion that was reasonably open to the Appeal Panel on the record before it was a finding that Mr. Groia was not guilty of professional misconduct.
[9] Accordingly, I would allow Mr. Groia’s appeal.
II. Factual Background
[10] Mr. Groia’s alleged misconduct stems from his in-court behaviour while representing John Felderhof. Mr. Felderhof was an officer and director of Bre-X Minerals Ltd., a Canadian mining company. Bre-X collapsed when claims that it had discovered a gold mine proved false. The fraud — one of the largest in Canadian capital markets — cost investors over $6 billion. The Ontario Securities Commission (“OSC”) charged Mr. Felderhof with insider trading and authorizing misleading news releases under the Securities Act, R.S.O. 1990, c. S.5.
[11] Mr. Felderhof hired Mr. Groia, a former OSC prosecutor, to defend him. The trial proceeded in the Ontario Court of Justice before Justice Peter Hryn. It took place in two phases. Phase One began on October 16, 2000 and lasted 70 days. Phase Two did not begin until March 2004. On July 31, 2007, Mr. Felderhof was acquitted of all charges.
[12] Phase One of the Felderhof trial was characterized by a pattern of escalating acrimony between Mr. Groia and the OSC prosecutors. A series of disputes plagued the proceedings with a toxicity that manifested itself in the form of personal attacks, sarcastic outbursts and allegations of professional impropriety, grinding the trial to a near standstill.
A. Disclosure Disputes
[13] Disputes between Mr. Groia and the OSC prosecutors arose during the disclosure process. The Bre-X investigation yielded an extensive documentary record. The OSC initially disclosed interview transcripts and so-called “C-Binders” — binders of documents the OSC intended to use as part of its case against Mr. Felderhof. It did not, however, disclose a substantial body of additional documents it had in its possession. The OSC prosecutors and Mr. Groia disagreed over the scope and format of further disclosure sought by the defence. According to Mr. Groia, it was the OSC’s responsibility to sort through all of the documents it had in its possession and to disclose hard copies of any relevant document to the defence. When the OSC prosecutors refused to do so, Mr. Groia wrote a letter to the OSC alleging that the prosecution was “operating under a serious misapprehension of its disclosure obligation[s]”, an error that Mr. Groia described as “an abuse of process”: Law Society Appeal Panel, 2013 ONLSAP 41, at para. 33 (CanLII) (“A.P. reasons”). He would build on these themes as the trial progressed. In response, the OSC offered to disclose electronic copies of the documents in its possession and provide Mr. Groia “with a reasonable supply of blank paper”: A.P. reasons, at paras. 35-37.
[14] Dissatisfied with the OSC’s response, Mr. Groia moved for additional disclosure. Mr. Naster, the lead OSC prosecutor, argued that the OSC was not aware of any relevant document that had not been disclosed to Mr. Felderhof. The trial judge, however, agreed with Mr. Groia and ordered the OSC to disclose a further 235 boxes of documents and hard copies of documents stored on 15 discs in its possession.
B. The Second Disclosure Motion
[15] As the trial neared, the parties were still at odds over disclosure. Adamant that the OSC had not fulfilled its disclosure obligations, Mr. Groia sent Mr. Naster a letter accusing the OSC of adopting “a ‘win at any costs’ mentality” which demonstrated “a shocking disregard for [Mr. Felderhof’s] rights”.
[16] Mr. Groia then brought a motion arguing that the OSC’s disclosure was so deficient that it amounted to an abuse of process warranting a stay of proceedings. In the alternative, Mr. Groia sought full disclosure, and in the further alternative, an order prohibiting the OSC from calling witnesses until it made full disclosure. Interspersed throughout Mr. Groia’s submissions on the motion were allegations that the prosecutors were “unable or unwilling . . . to recognize their responsibilities”, motivated by an “animus towards the defence”, and determined to make Mr. Felderhof’s ability to defend himself “as difficult as possible”.
[17] By the end of the motion, Mr. Groia conceded that the stringent test for a stay of proceedings had not been met. Accordingly, the trial judge declined to stay the prosecution. Once again, however, he was satisfied that the OSC had not fulfilled its disclosure obligations and he ordered additional disclosure. The trial judge also admonished the OSC for a comment made by one of its media personnel that the OSC’s goal “was simply to seek a conviction on the charges” it had laid: A.P. reasons, at para. 55.
C. The Admissibility of Documents
[18] Characteristic of most Securities Act prosecutions, the case against Mr. Felderhof relied heavily on documentary evidence. Between them, the prosecution and defence had nearly 100 binders containing thousands of documents. Disputes over the admissibility of those documents was a major source of friction throughout the trial.
[19] Mr. Naster initially suggested that either party could provisionally tender documents, subject to arguments as to their admissibility at the end of the trial. Mr. Groia rejected this approach. He was concerned that given the staggering size of the fraud, a number of Bre-X documents were falsified. As su