In a decision of interest to barristers, the Ontario Court of Appeal held that the Law Society of Upper Canada is entitled to deference when regulating a lawyer’s in-court conduct in Groia v The Law Society of Upper Canada, 2016 ONCA 471 (“Groia”). The Court of Appeal affirmed the Law Society’s holding that it is professional misconduct to make allegations of prosecutorial misconduct or that impugn the integrity of opposing counsel, unless the allegations are made in good faith and with a reasonable basis.
Joseph Groia defended John Felderhof against securities charges brought by the Ontario Securities Commission (“OSC”). Felderhof had been a senior officer and director of Bre-X, a mining company that fraudulently claimed to have discovered a large gold deposit in the 1990s. At the end of his trial, Felderhof was acquitted of all charges (R v Felderhof, 2007 ONCJ 345).
The Felderhof trial and related interlocutory proceedings spanned 7 years and used 160 days of court time. It was characterized by intractable evidentiary disputes and acrimony from both sides.
Between days 52 and 70 of the trial, Groia made incessant allegations (the “Prosecutorial Misconduct Allegations”) that the OSC prosecutors were reneging on their earlier assertions that certain documents were relevant and authentic. The allegations were underlaid by Groia’s legally erroneous belief that any witness could be questioned on any document disclosed by the prosecution. Groia also kept referring to an OSC spokesperson’s statement that the OSC wished to secure a conviction. After a number of directions from the trial judge, and an admonishment from the Court of Appeal (R v Felderhof (2003), 68 OR (3d) 481 (CA)), Groia changed his course and the trial proceeded uneventfully after day 70.
In 2009, the Law Society, on its own initiative, commenced disciplinary proceedings against Groia. The Law Society alleged that the Prosecutorial Misconduct Allegations constituted professional misconduct. Specifically, the Law Society alleged that Groia failed to treat the court with courtesy and respect, undermined the integrity of the profession, and failed to act with courtesy and in good faith.
At first instance, the Law Society hearing panel held that the Prosecutorial Misconduct Allegations fell below the standards of civility and good faith (Law Society of Upper Canada v Joseph Peter Paul Groia, 2012 ONLSHP 0094; 2013 ONLSHP 0059). An Appeal Panel of the Law Society affirmed that decision as it related to Groia’s professionalism (the “Conduct Decision”). However, the Appeal Panel reduced the initial penalty against Groia to a one-month suspension plus $200,000 in costs (the “Penalty Decision”) (Law Society of Upper Canada v Joseph Peter Paul Groia, 2013 ONLSAP 0041; 2014 ONLSTA 11).
Groia applied for judicial review. The Divisional Court, applying a correctness standard of review, varied the Appeal Panel’s test for misconduct, focusing on whether the in-court conduct would undermine (or have a realistic prospect of undermining) the proper administration of justice. The Divisional Court held that the Appeal Panel’s application of the law to the facts, and the Penalty Decision, were reasonable (Joseph Groia v The Law Society of Upper Canada, 2015 ONSC 686; previously discussed on this blog here). Groia appealed.
Court of Appeal Majority Decision
In a split decision comprising 444 paragraphs, a majority of the Court of Appeal held that the Appeal Panel’s Conduct Decision and Penalty Decision were reasonable.
The Court of Appeal majority upheld the Appeal Panel’s test, namely that it is professional misconduct for a lawyer:
- To make allegations:
- of prosecutorial misconduct, or
- that impugn the integrity of opposing counsel,
- Unless the allegations are made:
- in good faith, and
- with a reasonable basis.
In reaching her conclusion, Cronk JA (MacPherson JA concurring) for the majority made the following points:
- Existing jurisprudence establishes that reasonableness is the proper standard of review for a court reviewing a law society’s discipline decision. The Divisional Court erred by substituting its own test for that of the Appeal Panel.
- Justice Cronk rejected Groia’s argument that trial judges should have primary responsibility for managing their courtrooms, to the exclusion of the Law Society’s rules except in narrow circumstances. Judges and the Law Society have differing but complementary roles, with different remedial powers available to each. The Law Society’s jurisdiction over in-court conduct clearly flows from its enabling act.
- The fact that a lawyer’s commitment to her or his client’s cause is a principle of fundamental justice under s. 7 of the Charter does not give a lawyer licence to breach her or his professional obligations of courtesy, civility and good faith. In short, a lawyer’s duty of zealous advocacy does not override his or her duties to the profession and the courts.
- The Charter s. 2(b) right to freedom of expression is not incompatible with professional conduct obligations, including the duty of civility. The Appeal Panel reasonably balanced Groia’s expressive rights with his professional obligations.
- Justice Cronk rejected Groia’s argument that the Appeal Panel’s formulation of the incivility test was vague. A test for incivility needs to be contextual and fact-specific, and the Appeal Panel’s formulation of the test was reasonable. The test is designed to address the serious and repetitive nature of the Prosecutorial Misconduct Allegations. The test should not be limited to conduct that results in trial unfairness.
- Fearless advocacy (passionate, brave and bold language) is permissible; unfounded, direct attacks on the integrity of opposing counsel are not. Similarly, isolated lapses in judgment or the occasional disparaging comment should generally not trigger disciplinary action.
In addressing the potential of Groia’s conduct to impact public confidence in the administration of justice, Cronk JA stated:
“[C]ourtrooms are not just places where advocates and judges come to work. They are the community’s chosen forum for public dispute resolution and the administration of the criminal law.” (para 212)
Court of Appeal Dissent
In a dissent echoing of Diceyan influences, Brown JA focused on the constitutional divide between the courts, which are empowered through s. 96 of the Constitution Act, 1867 or otherwise statutorily empowered, and regulators such as the Law Society, which are given delegated powers from provincial and federal legislatures. Justice Brown held that existing precedents did not establish a standard of review for law societies regulating in-court conduct. He would have scrutinized the Conduct Decision on a correctness standard of review, given the quotidian responsibility of the independent judiciary for maintaining control of their courtrooms. Justice Brown preferred a test for in-court professional misconduct that considers three factors: (i) what the barrister did; (ii) what the presiding judge did about the conduct and how the barrister responded; and (iii) whether the conduct undermined, or threatened to undermine, the fairness of the court proceeding. Applied to the Felderhof trial, the trial judge and Court of Appeal issued directions which Groia heeded. And the Prosecutorial Misconduct Allegations did not seriously affect the fairness of Felderhof’s trial. Justice Brown would have held that Groia did not commit professional misconduct.
Justice Brown agreed with the majority that:
“Civility is… an essential pillar of the effective functioning of the administration of justice.” (paras 119, 254)
Although he acknowledged the inherent limits on civility:
“But courtrooms are not populated by saints; they are populated by flawed human beings who enter them each day to argue and adjudicate cases. … To hold either counsel or judges to a standard of perfection is unreasonable, because it is unattainable. Judges and counsel are human beings, not machines.” (para 417)
The dissent did not suggest that the courts’ inherent jurisdiction ousts the role of the Law Society as regulator. Rather, Brown JA preferred a test for in-court professional misconduct that gives great weight to how the trial judge handled the conduct.
There are three key takeaway points from the Court of Appeal’s decision in Groia.
First, lawyers cannot assume that the standard for incivility is what they can “get away with” in the courtroom. Law societies have concurrent jurisdiction to punish incivility, even if the trial judge chooses not to. Lawyers must always be mindful of law society codes of conduct.
Second, lawyers should not make allegations against the integrity of fellow members of the bar, unless there is good reason to do so.
Third, the split judgment demonstrates the fraying of the standard of review framework in Canada. (See this recent blog post for a more fulsome discussion.) In particular, Groia demonstrates the difficulty in the first stage of the Dunsmuir two-step analysis, in which the court looks to existing jurisprudence to determine whether the standard of review has already been determined for that particular “issue” (the problem being—how narrowly do you define an “issue”?).
Joseph Groia has said that he intends to appeal the Court of Appeal’s ruling. If the Supreme Court decides to weigh in, the last word in this saga is yet to come.
Date of Decision: June 14, 2016