A Law Society of Upper Canada hearing panel erred in admitting a judge’s comments during lawyer Joe Groia’s civility proceedings, counsel for The Advocates’ Society told an appeal panel last week.
The hearing panel found Groia guilty of misconduct last year for his actions during his successful defence of Bre-X Minerals Ltd. geologist John Felderhof. Groia is appealing the two-month suspension and a $247,000 costs order that resulted.
According to Terrence O’Sullivan, counsel for The Advocates’ Society as an intervener in the appeal, the hearing panel shouldn’t have admitted comments about Groia’s conduct the judge made during the trial as evidence when the law society prosecuted him years later for misbehaviour that included sarcasm and a “petulant invective.”
“They were conclusive remarks, not facts or expert opinions,” Sullivan told a five-person appeal panel chaired by Linda Rothstein. “They don’t constitute admissible evidence.”
The comments O’Sullivan referenced were statements made by the late justice Archie Campbell in explaining his reasons for a cost endorsement in relation to a judicial review.
“As noted in the judgment, the conduct of neither side is completely free from difficulty,” wrote Campbell.
“The problems were not caused solely by the defence and the prosecution must bear a measure of responsibility for rising to Mr. Groia’s bait and for questioning rulings of the court. On the other hand, Mr. Groia’s unacceptable conduct was an essential triggering cause of the application.”
At one point, Campbell also called Groia’s conduct “appallingly unrestrained and on occasion unprofessional.”
Those comments were part of the hearing panel’s reasons for its findings against Groia. But O’Sullivan said a principle taught to students in their first year of law school holds that to be admissible, evidence needs to fall under the two categories of fact or expert opinion.
When the panel asked O’Sullivan if a member of the public wouldn’t find it “quite foolish” if the hearing panel were to ignore the comments of the trial judge, he said: “What matters is the discharge of statutory mandate.”
“We gain no credit among the public if we treat our members by applying rules we wouldn’t to our clients,” he continued.
To admit the remarks of a judge as evidence is, in essence, to delegate the analysis to another court, O’Sullivan argued. Another unintended consequence of that approach could lead judges to be “unduly cautious” with their words or, on the flip side, berate counsel they don’t like, he said.
“Neither of those are desirable objectives.”
Law society counsel Tom Curry disagreed with O’Sullivan.
The hearing panel “made no error in finding that those decisions had to be applied,” he said.
Curry also dismissed a suggestion by Groia’s counsel, Earl Cherniak, that people should be commending his client for his zealous advocacy that eventually saw Felderhof acquitted.
“As toxic and poisonous” as the atmosphere was during the Bre-X trial, Groia’s conduct was unjustifiable, Curry added.
Whether Groia’s conduct amounted to zealous advocacy or professional misconduct has been a matter of debate since the proceedings in his case began.
According to the Canadian Civil Liberties Association, which appeared as an intervener in the appeal, the law society should only bring disciplinary proceedings against a lawyer “on the basis of incivility in the clearest of cases where the incivility has caused or is reasonably likely to cause a miscarriage of justice.”
“Failing to place strict parameters on the interpretation of the civility requirement under the Rules of Professional Conduct will place a chill on the legal profession and impact a lawyer’s ability to fulfil the duties owed to their clients and to speak out about concerns with respect to the behaviour of other counsel and members of the judiciary,” wrote the CCLA’s Cara Zwibel in her factum.
According to O’Sullivan, what a lawyer says “in good faith” shouldn’t be punishable.
“However, the highest level of effective advocacy exhibits forceful persuasion made in a courteous and dignified manner,” he wrote in his factum.
“As a matter of practice, however, there may be times when an advocate finds that fearless and zealous representation of a client involves pushing up against the boundaries of civility.”
O’Sullivan also argued that as human beings, lawyers can sometimes be short on patience and have a lapse in judgment.
“In such circumstances, the advocate should not feel unduly constrained by the threat of prosecution for incivility.”
When lawyers have been uncivil, judges are in the best position to address it, according to Zwibel.
“The CCLA does not suggest that the law society has no role in regulating issues of lawyer conduct that take place in the courtroom,” she wrote.
“However, trial judges have both statutory and inherent powers to control proceedings in their courtrooms and a number of tools available to address uncivil behaviour by counsel.”
Former Supreme Court justice Ian Binnie made similar comments during a panel discussion last year on the Groia case.
“In the hothouse of a trial, particularly when you have a vicious battle going on . . . it is extremely difficult for somebody to come after the event and pick it apart and say, ‘Well, you really shouldn’t have said that,’” he said.
“A judge is running a trial in order to achieve a disposition in the case. And if the conduct of lawyers is getting in the way of achieving that, then it’s time to do something about it. And if the judge loses control of the courtroom, it seems to me the problem is we’re not getting the right judges.”
For more, see "Groia's appeal accuses LSUC of 'abuse of process.'"