More than 12 years after his first court appearance defending former Bre-X Minerals Ltd. vice chairman John Felderhof, Joe Groia’s disciplinary hearing finally got underway at the Law Society of Upper Canada last week with his lawyer fending off allegations of incivility by arguing that forceful advocacy was necessary during the long-running case.
Felderhof, who was also chief geologist at Bre-X, was facing accusations by the Ontario Securities Commission of insider trading and issuing false or misleading statements over his sale of $83-million worth of shares in the company.
The share price rocketed after Bre-X reported the discovery of gold deposits in Indonesia, but those claims turned out to be false. A 160-day trial spread across five years ultimately acquitted Felderhof in 2007.
The behaviour of Groia, who was once the OSC’s director of enforcement himself, in the hard-fought case came into question after prosecutors moved to have trial judge Peter Hryn removed from it 70 days into the trial in part for his failure to restrain what they saw as the defence lawyer’s uncivil conduct.
Representing the law society, Tom Curry, a partner at Lenczner Slaght Royce Smith Griffin LLP, said it intends to rely only on the transcript of those first 70 days as well as two decisions by late Ontario Superior Court justice Archie Campbell and one more by the Ontario Court of Appeal in the case.
On Thursday, he recounted various moments of days 10 through 42 while highlighting exchanges between Groia and OSC prosecutor Jay Naster.
In one example, Curry emphasized a dispute between Naster and Groia about whether or not various documents complied with the disclosure requirements set forth by the Supreme Court of Canada in R. v. Stinchcombe. Curry quoted Groia as stating at one point that the OSC “is saying they’re too busy to comply with Stinchcombe.”
In his decision, Campbell rejected the Crown’s submissions that Hryn had lost jurisdiction over the trial but chided Groia for his “unacceptable conduct.”
He noted that at times Groia’s tone “descended from legal argument to irony to sarcasm to petulant invective” and “more resembles guerilla theatre than advocacy in court.”
“His conduct tarnished the administration of justice as uncivil conduct inevitably does,” Curry said in his opening statements to the panel chaired by Bencher Tom Conway along with colleagues Susan McGrath and Baljit Sikand.
Groia’s conduct had a “distorting and disruptive effect” on the Felderhof proceedings, according to Curry, who said his actions “have no place in our courtrooms or in the arsenal of members of this society.” Groia had a duty, Curry said, to act civilly, something that wasn’t inconsistent with his obligation to his client.
“He made unfair and belittling comments about the prosecution and the manner in which they proceeded,” Curry said. “Those comments and the manner in which he made his legal submissions were inconsistent with his professional obligations.”
Groia’s lawyer, Lerners LLP partner Earl Cherniak, fired back. He argued the law society’s prosecution of Groia posed a threat to the independence of the bar, the judiciary, and the public interest, particularly in cases where a defendant lines up against a powerful public body.
According to Cherniak, Felderhof faced terrible odds given the intense public scrutiny associated with the Bre-X case and the enormous resources behind the OSC, which had publicly stated its desire for a conviction.
“Forceful advocacy” was required and delivered by Groia in the case, Cherniak said.
“Except in the most egregious of cases, the law society should stay out of attempting to regulate conduct in a courtroom,” Cherniak said, adding the issues are better left to judges familiar with them who “take the temperature of a trial” in court on a daily basis.
In this case, Cherniak added, nobody involved had reported Groia to the law society for his conduct, including opposing counsel.
The trial judge never commented adversely on Groia, and although Campbell and the Court of Appeal were later scathing about his behaviour, none of the judges complained. Instead, the law society apparently launched its investigation off the back of a National Post story on the case.
“The trial judge was continually asked by the prosecution to chastise Mr. Groia for his complaints about the way prosecution was proceeding and he did not,” Cherniak said.
But Curry said that fact doesn’t shield Groia from law society action. “It is not the case that counsel can get away with whatever the court allows him or her to do,” he said. “It is important to bear in mind that the first obligation is the advocate’s. Mr. Groia had a duty to act civilly and in accordance with our rules.”
Curry also pointed out that in any case, Justice Marc Rosenberg’s Court of Appeal ruling noted that Hryn should have done more to restrain Groia from making his repeated allegations of misconduct and abuse of process on the part of the OSC.
“The trial judge should have instructed Mr. Groia to stop and to reserve his concerns about the conduct of the prosecution until the time came to make the abuse of process motion,” Rosenberg wrote in his December 2003 decision.
“Even when that time came, defence counsel is obliged to make submissions without the rhetorical excess and invective that Mr. Groia sometimes employed.”
Rosenberg’s ruling is one of three court decisions that form the basis of the law society’s application against Groia.
The original decision by Campbell in October 2002 dismissing the application to remove Hryn came after 70 tumultuous days of wrangling over disclosure and procedure. Just two witnesses were examined during that period, and neither completed their evidence.
Campbell decided Hryn should continue but spent a good portion of his reasons quoting paragraphs of submissions from Groia that he said demonstrated the kind of “unrestrained invective” and “excessive rhetoric” the lawyer had used to attack the OSC’s approach to the case.
The examples quoted provided “some flavour,” Campbell wrote, but they did “not adequately convey the personally biting effect of Mr. Groia’s unrestrained repetition of his sarcastic attacks.”
He then refused to grant Felderhof any of the $500,000 he wanted in costs for defending the motion for loss of jurisdiction. In doing so, he noted that it seemed “unlikely that this application would have been brought but for Mr. Groia’s inappropriate conduct.”
“The behaviour indulged in by Mr. Groia should be discouraged, not encouraged by an award of costs,” Campbell wrote.
According to Curry, the judgments were “almost without precedent.” He added that the findings were binding on the LSUC panel.
But Cherniak disputed Curry’s characterization of the courts’ comments as “findings.” Instead, he said they should be considered as comments on Groia’s conduct that were admissible for the fact that they were made but with no more weight than that.
“I mean no disrespect to the courts when I say that the comments of the courts are no more relevant to this proceeding than those of any third party about the member’s conduct,” Cherniak said.
The hearing continues this week.
[em]With files from Ravi Amarnath.
[/em]For more on this story, see "Hearing will send a chill: Groia."