Today, the Divisional Court of the Ontario Superior Court of Justice dismissed Joseph Groia’s appeal from the Law Society of Upper Canada’s discipline conviction for uncivil conduct during a criminal trial (Groia v. LSUC). One of the recurrent aspects of Groia’s position, both during tribunal and judicial proceedings, was that the Law Society ought not to have prosecuted the lawyer when the trial judge from the criminal trial against Groia’s client, John Felderhof, meted out no disciplinary measure against Groia. Belief in this theory of defence appears to have guided the much of the strategy of the defence.
At paragraphs 26-45 of the Divisional Court’s decision, Justice Nordheimer explained that the Law Society, as the statutory regulator of all lawyer conduct, has both the authority and expertise to consider allegations of lawyer misconduct. In contrast, the supervisory role exercised by judges and courts can be tempered by exigencies of the trial, the need for the proceedings to flow without interruption or without being sidetracked by counsel’s behaviour, and the need to maintain the appearance of impartiality. Thus, disciplinary measures undertaken by Law Society investigators are not considered to interfere with judicial independence.
The categorical certainty with which the Divisional Court rejected Groia’s ‘judicial independence’ defence stands in contrast with Nordheimer J.’s painstaking treatment of the need to allow criminal defence lawyers to be free to represent unpopular clients accused of offences against public order. In refusing to draw a bright line between zealous advocacy and unprofessional conduct, at paragraph 71 the judge nevertheless stated that the courts should prefer zealous advocacy over pulling punches:
The “zealous advocacy chill” is not a concern to be ignored or minimized. Indeed, where the interests clash, I would suggest that it is better that zealous advocacy be favoured over the desire for civility. Our justice system can tolerate uncomfortable and unpleasant exchanges in the courtroom much better than we can ever tolerate a wrongful result.
Although it is ever easy to play Monday-morning quarterback (especially the day after the Super Bowl), the focus on the lack of judicial sanction during the trial appears to have taken away from a more detail-driven analysis of the alleged incivility (for the most part, a strategy of alleging prosecutorial misconduct against the Crown) in relation to the elements contributing to the acquittal of Groia’s client. Here, Nordheimer J. left it open for counsel for the lawyer up on charges of unprofessional conduct to develop a good faith ends-and-means defence. One should never make baseless allegations to secure a result. However, in instances where a particularly aggressive strategy can lead to an advantage for the client, it is important to go through the exercise of documenting the strategy in internal memoranda and counsel notes. Provided the basis for any utterance is capable of being supported in the evidence, truth and fair comment is ever a defence. Meticulous fact-checking is the best defence to mounting a strong offence.
In the Groia matter, it is likely we will never know whether a defence of Groia could have been made out by linking a sufficient number of allegedly uncivil behaviour to an element of Felderhof’s successful defence. Defence counsel for Groia faced the difficulty at the tribunal level of a hearing panel ruling that reasons given in judicial review proceedings during the criminal trial could not be re-litigated. The Divisional Court upheld the Law Society Appeal Panel in holding that the judicial proceedings, in which Groia was not a party, were not binding on Groia in the discipline hearing. This ruling by the Divisional Court did not affect the result.
As one reads the Nordheimer decision, it is evident that the Divisional Court decided to dismiss the appeal (and the Law Society’s cross-appeal on sentence) by granting the self-regulating professional panel deference on matters concerning peer-to-peer discipline. This is a significant point and should lead to a more principled, detail-driven response to allegations of courtroom incivility on tactical decisions of criminal or civil litigators. Defend the conduct not by attacking the jurisdiction of the Law Society, but by compelling the Law Society to exercise its parallel disciplinary jurisdiction to the fullest, re-litigating facts if necessary because the court proceedings are not binding on the Law Society’s discipline process. (The position that the court proceedings were binding on the Law Society was as untenable as the position that the Law Society has no jurisdiction unless the court made a complaint.)
This preliminary comment on the rather scholarly Divisional Court decision will undoubtedly require further refinement. For now, it appears, Groia v. LSUC does provide some important guidance in both the prosecution and defence of allegations of misconduct arising from counsel courtroom behaviour.