Embattled Bre-X lawyer Joe Groia got a boost on Friday from high-profile colleagues and defenders of freedom of expression, who warned that his prosecution by the Law Society of Upper Canada for “incivility” could have a “chilling effect” in courtrooms.
Prominent criminal lawyer Frank Addario told an Ontario Divisional Court that the law society’s “new interest in civility” is targeting defence lawyers, whose role in fighting for fair trials “has to include lawyers who rub people the wrong way.”
“The bread and butter of a defence lawyer’s practice is due process,” said Addario, who gave submissions for the Criminal Lawyers’ Association, which intervened in the case. “We seek a wide berth so that we can continue to argue for due process without fear of being chastised by the regulator.”
Groia is fighting a finding of professional misconduct by the law society for his behaviour in the early stages of the trial of former Bre-X geologist John Felderhof, whom he successfully defended against Ontario Securities Commission (OSC) charges.
He is facing a one-month suspension and $200,000 in legal costs after a law society appeal panel largely upheld the guilty finding in 2013.
On Friday, the Canadian Civil Liberties Association, which also intervened in the case, argued that findings of professional misconduct for incivility in the courtroom should be reserved for “only the clearest of cases where incivility has caused a miscarriage of justice.”
“It is not accident that this definition sets a high bar,” said association lawyer Cara Zwibel.
The law society was not acting on a complaint from any of the parties involved when it charged Groia in 2009 with “incivility” and displaying “consistent pattern of rude, improper or disruptive conduct” for calling the OSC “lazy” and “the government,” among other attacks.
Society lawyer Jaan Lilles told the panel of three judges that the regulator has an important role to play in “governing the behaviour of lawyers in the courtroom,” and that limits of civility are clear.
Contrary to the earlier submissions of Groia’s lawyer, Lilles said the case does not engage the question of judicial independence because the regulator and the trial judge “are fulfilling different functions.”
However, Justice Ian Nordheimer questioned the penalty the law society imposed on Groia, who he noted had no previous disciplinary record and had not been the subject of complaints.
Nordheimer also questioned the fact that Groia’s vigorous defence of the charges he was facing and apparent lack of remorse part played a role.
“It’s generally accepted as improper for a trial judge to say, ‘I’m going to whack you harder because you didn’t apologize,’ ” he said.
Society lawyer Tom Curry countered that Groia’s “defiance was not insignificant,” explaining that he rejected “every aspect of the law society’s argument.”
Groia’s behaviour in the Bre-X trial — along with that of prosecutors — was criticized by higher court judges in the course of the lengthy, often acrimonious, proceedings, which included unsuccessful efforts by the OSC to secure a new trial judge.
But the Advocates’ Society, yet another intervenor, told the court on Friday that the law society was wrong to allow these judges’ comments to be admitted as evidence in later disciplinary proceedings because Groia had no opportunity to defend himself at the time.
The judicial review concluded on Friday without an immediate decision.
Felderhof was the only person charged in the mining scandal surrounding Bre-X Minerals, which plunged into bankruptcy when a promising gold find the company announced in Indonesia in 1995 was revealed to be fraudulent.