Balancing resolute advocacy and civility in the courtroom: the Supreme Court of Canada weighs in on Groia

On June 1, the Supreme Court of Canada released its long-awaited judgment in Groia v Law Society of Upper Canada. In a 6-3 majority decision, the court set aside the finding of professional misconduct made against defence lawyer Joseph Groia.

The Groia appeal marks the first time the Supreme Court has examined the issue of when courtroom incivility may constitute professional misconduct. In addressing this issue, the court emphasized the importance of civilized debate to the peaceful and orderly resolution of disputes. By the same token, however, the court held that civility must co-exist with a myriad of other fundamental values, including resolute advocacy, free expression and the accused’s right to make full answer and defence.

Background

Mr. Groia’s saga began during a high-profile insider trading trial against former Bre-X senior officer John Felderhof. During a hard-fought and acrimonious trial, Mr. Groia persistently raised allegations of prosecutorial misconduct that impugned the integrity of opposing counsel. In the midst of the trial, the prosecution brought judicial review proceedings arguing the trial judge had lost jurisdiction by failing to constrain Mr. Groia. These judicial review proceedings were dismissed, the trial continued and Mr. Felderhof was eventually acquitted.

The Law Society of Upper Canada (Law Society) brought disciplinary proceedings against Mr. Groia, alleging his uncivil courtroom behaviour amounted to professional misconduct. Both the Law Society hearing panel and appeal panel found Mr. Groia guilty of misconduct. These findings – and the month-long suspension and costs award of $200,000 imposed by the appeal panel – were upheld by the Divisional Court and a majority of the Ontario Court of Appeal.

Civility – What is expected of lawyers?

In allowing the appeal, the majority of the Supreme Court found that Mr. Groia had not committed professional misconduct and dismissed the complaints brought against him. The court recognized that courts and law societies enjoy “concurrent jurisdiction” to regulate and enforce standards of professional conduct in the courtroom, and that law societies have significant expertise in regulating the profession.

Reviewing the appeal panel’s decision on a standard of reasonableness, Justice Moldaver – writing for the majority – upheld the test elaborated by the Law Society’s appeal panel pursuant to which allegations of professional misconduct that impugn the integrity of opposing counsel constitute professional misconduct unless they are made in good faith and have a reasonable basis. The test is part of a broader “fundamentally contextual and fact specific” inquiry to determine when courtroom incivility amounts to misconduct, requiring consideration of all relevant factors including, but not limited to: (1) the nature of what the lawyer said; (2) the manner and frequency of the lawyer’s behaviour; and (3) the trial judge’s reaction. In remaining faithful to this totality-of-the-circumstances approach, the court stayed away from a one-size-fits-all definition of when incivility amounts to professional misconduct, which Moldaver J. described as “neither attainable nor desirable.”

Applying this test, the majority of the court concluded that counsel can allege misconduct against an opponent if the allegation is based on a sincerely held legal position (i.e., good faith) – even if the legal position is controversial, novel, or plainly wrong – and is supported by some non-speculative, factual foundation (i.e., reasonable basis).

According to the majority, having accepted Mr. Groia’s good faith, the appeal panel could not rely on the fact his position at trial was wrong in law in order to find his allegations of prosecutorial misconduct were without a reasonable basis. The majority also gave significant weight to the trial judge’s hands-off approach and Mr. Groia’s compliance with the trial judge’s instructions once he chose to intervene. In the circumstances, the majority thus concluded that the only acceptable outcome was finding Mr. Groia not guilty of professional misconduct.

The three dissenting judges agreed the standard of review was reasonableness, but criticized the majority’s application of this standard and the test for misconduct. In their view, the majority effectively created a novel mistake of law defence that would immunize lawyers from disciplinary sanction whenever their allegations are based on honestly held legal beliefs.

Implications of this decision

Noting that trials are not tea parties, the court affirmed the importance of minimizing a chilling effect on the kind of resolute advocacy that is at times necessary to advance a client’s cause. On the other hand, the court recognized that incivility is damaging to trial fairness and a lawyer’s gratuitous challenges to opposing counsel’s integrity may give rise to professional discipline unless allegations reflect an honestly held legal position and a sufficient factual basis. In the majority’s view, this approach ensures free expression, resolute advocacy and the right to a full defence are not sacrificed on the altar of civility.

Pierre Bienvenu, Andres C. Garin and Jean-Christophe Martel of Norton Rose Fulbright Canada LLP represented the Canadian Bar Association as an intervener at the Supreme Court of Canada.

Aditya Badami, Lindsay Bec and Sarah Ivany co-wrote “Civility: A Cornerstone in the Administration of Justice and the Rule of Law” with Justice Anne L. Kirker in the Annual Review of Civil Litigation 2017.