SUPREME
COURT OF CANADA
Citation:
Groia v. Law Society of Upper Canada, 2018 SCC 27
|
Appeal Heard:
November 6, 2017
Judgment
Rendered: June 1, 2018
Docket:
37112
|
|
|
Between:
Joseph
Peter Paul Groia
Appellant
and
Law
Society of Upper Canada
Respondent
-
and -
Director
of Public Prosecutions, Attorney General of Ontario, Attorney General of
Saskatchewan, Law Society Tribunal, Advocates’ Society, Barreau du Québec,
Canadian Civil Liberties Association, British Columbia Civil Liberties
Association, Independent Criminal Defence Advocacy Society, Federation of Law
Societies of Canada, Ontario Crown Attorneys’ Association, Ontario Trial
Lawyers Association, Canadian Bar Association and Criminal Lawyers’ Association
of Ontario
Interveners
Coram: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner,
Gascon, Côté, Brown and Rowe JJ.
Reasons for
Judgment:
(paras. 1 to 161)
|
Moldaver J. (McLachlin C.J. and Abella, Wagner and Brown
JJ. concurring)
|
Concurring
Reasons:
(paras. 162 to 174)
|
Côté J.
|
Dissenting
Reasons:
(paras. 175 to 233)
|
Karakatsanis, Gascon and Rowe JJ.
|
Note: This document is subject to editorial revision before its
reproduction in final form in the Canada Supreme Court Reports.
groia v. law society
of upper canada
Joseph Peter Paul Groia Appellant
v.
Law Society of Upper Canada Respondent
and
Director of Public Prosecutions,
Attorney General of Ontario,
Attorney General of Saskatchewan,
Law Society Tribunal,
Advocates’ Society,
Barreau du Québec,
Canadian Civil Liberties Association,
British Columbia Civil Liberties
Association,
Independent Criminal Defence Advocacy
Society,
Federation of Law Societies of Canada,
Ontario Crown Attorneys’ Association,
Ontario Trial Lawyers Association,
Canadian Bar Association and
Criminal Lawyers’ Association
of Ontario Interveners
Indexed as: Groia v.
Law Society of Upper Canada
2018 SCC 27
File No.: 37112.
2017: November 6; 2018: June 1.
Present: McLachlin C.J. and Abella, Moldaver, Karakatsanis,
Wagner, Gascon, Côté, Brown and Rowe JJ.
on appeal from the court of appeal for ontario
Law of professions — Discipline — Barristers and solicitors — In‑court
incivility — Law Society bringing disciplinary
proceedings against lawyer based on uncivil behaviour during trial — Lawyer found guilty of professional misconduct by disciplinary tribunal
— Approach for assessing whether in‑court incivility amounts to
professional misconduct — Whether decision
reasonable.
Administrative
law — Appeals — Standard of review — Law Society disciplinary tribunal —
Standard of review applicable to Law Society’s decision finding lawyer guilty of
professional misconduct for in‑court incivility.
G, a lawyer, was hired by F to
defend him against charges of insider trading and authorizing misleading news
releases brought against him by the Ontario Securities Commission (“OSC”). F’s trial was characterized by a pattern of escalating acrimony and by a
series of disputes between G and the OSC prosecutors, which included personal
attacks, sarcastic outbursts and allegations of professional impropriety made
by G. In particular, the OSC prosecutors and G disagreed over the scope of the
OSC’s disclosure obligations and the format of such disclosure, as well as over
the admissibility of documents. Much of the disagreement stemmed from G’s honest
but mistaken understanding of the law of evidence and the role of the
prosecutor. During the trial, despite the frequency and fervor of the dispute,
the trial judge initially adopted a hands‑off approach, but he finally directed
G to stop repeating his misconduct allegations. G largely followed the trial
judge’s directions. Evidentiary disputes were eventually resolved and the trial
was completed, with F being acquitted on all charges.
After
F’s trial, the Law Society brought disciplinary proceedings against G on its
own motion, alleging professional misconduct based on his uncivil behaviour
during the trial. A three‑member panel of the Law Society Hearing Panel
found G guilty of professional misconduct, suspended his licence to practice
law for two months and ordered him to pay nearly $247,000 in costs. On appeal
by G, the Law Society Appeal Panel also concluded that G was guilty of
professional misconduct, but it reduced G’s suspension to one month and
decreased the costs award against him to $200,000. In its decision, the
Appeal Panel developed a multi‑factorial, context‑specific approach
for assessing whether in‑court incivility amounts to professional
misconduct. The Divisional Court upheld the Appeal Panel’s decision as
reasonable. A majority of the Court of Appeal dismissed G’s further appeal.
Held
(Karakatsanis, Gascon and Rowe JJ. dissenting): The appeal should be allowed.
Per
McLachlin C.J. and Abella, Moldaver, Wagner and Brown JJ.: The
Appeal Panel’s decision should be reviewed for reasonableness. This
Court’s decisions establish that a reasonableness standard applies to law
society misconduct findings and sanctions. Moreover, post‑Dunsmuir jurisprudence
has firmly entrenched the notion that decisions of specialized administrative
bodies interpreting their own statute or statutes closely connected to their
function are entitled to deference from courts, and are thus presumptively
reviewed for reasonableness. That presumption applies here: the Appeal Panel’s
approach to determining when incivility amounts to professional misconduct and
its application of that approach in assessing a lawyer’s conduct involve an
interpretation of the Rules of Professional Conduct enacted under its
home statute and the discretionary application of general principles to the
facts before it.
The
presumption of deference is not rebutted. Determining when in‑court
behaviour amounts to professional misconduct does not fall under the category
of questions of central importance to the legal system as a whole and outside
the decision‑maker’s expertise, for which correctness review would be appropriate.
Although the permissible scope of lawyers’ behaviour is arguably of central
importance to the legal system as a whole, it cannot be said that assessing
whether incivility amounts to professional misconduct is outside the Law
Society’s expertise. To the contrary, Law Society disciplinary tribunals have
significant expertise regulating the legal profession, and Law Society
disciplinary panels are composed, in part, of other lawyers, who are aware of
the problems and frustrations that confront a practitioner. Furthermore, a
deferential standard of review does not threaten a trial judge’s power to
control his or her courtroom. A trial judge is free to control the conduct in
his or her courtroom irrespective of the degree of deference accorded to a Law
Society’s disciplinary decision by a different court. The fact that the
behaviour occurs in a courtroom is an important contextual factor that must be
taken into account when evaluating whether that behaviour amounted to
professional misconduct; but it does not impact on the standard of review.
The
multi‑factorial, context‑specific approach developed by the Appeal
Panel for assessing whether a lawyer’s in‑court behaviour crosses the
line into professional misconduct on the basis of incivility is appropriate. First,
the Appeal Panel recognized the importance of civility to the legal profession
and the corresponding need to target behaviour that detrimentally affects the
administration of justice and the fairness of a particular proceeding. At the
same time, it remained sensitive to the lawyer’s duty of resolute advocacy — a
duty of particular importance in the criminal context because of the client’s
constitutional right to make full answer and defence. The Appeal Panel
recognized the need to develop an approach that would avoid a chilling effect on
the kind of fearless advocacy that is at times necessary to advance a client’s
cause.
Second,
the Appeal Panel developed an approach that is both flexible and precise. A
rigid definition of when incivility amounts to professional misconduct in the
courtroom is neither attainable nor desirable; rather, determining whether a
lawyer’s behaviour warrants a finding of professional misconduct must remain a
context‑specific inquiry that is flexible enough to assess behaviour
arising from the diverse array of situations in which lawyers find themselves. Yet,
standards of civility must be articulated with a reasonable degree of
precision. The Appeal Panel’s approach strikes a reasonable balance between
flexibility and precision: it sets a reasonably precise benchmark that
instructs lawyers as to the permissible bounds of ethical courtroom behaviour,
by articulating a series of contextual factors — what the lawyer said, the
manner and frequency in which it was said, and the presiding judge’s reaction
to the lawyer’s behaviour — that ought generally to be considered when
evaluating a lawyer’s conduct, and by describing how those factors operate when
assessing a lawyer’s behaviour.
With
respect to what the lawyer said, while not a standalone “test”, the Appeal
Panel determined that prosecutorial misconduct allegations, or other challenges
to opposing counsel’s integrity, cross the line into professional misconduct
unless they are made in good faith and have a reasonable basis. Requiring a
reasonable basis for allegations protects against unsupportable attacks that
tarnish opposing counsel’s reputation without chilling resolute advocacy. However,
the reasonable basis requirement is not an exacting standard. It is not
professional misconduct on account of incivility to challenge opposing
counsel’s integrity based on a sincerely held but incorrect legal position so
long as the challenge has a sufficient factual foundation, such that if the
legal position were correct, the challenge would be warranted. Nor is it
professional misconduct to advance a novel legal argument that is ultimately
rejected by the court. The good faith inquiry asks what the
lawyer actually believed when making the allegations. In contrast,
the “reasonable basis” inquiry requires a law society to look beyond what the
lawyer believed, and examine the foundation underpinning the allegations. Looking
at the reasonableness of a lawyer’s legal position at this stage would, in
effect, impose a mandatory minimum standard of legal competence in the
incivility context — this would allow a law society to find a lawyer guilty of
professional misconduct on the basis of incivility for something the lawyer, in
the law society’s opinion, ought to have known or ought to have done. This
would risk unjustifiably tarnishing a lawyer’s reputation and chilling resolute
advocacy.
With respect to the frequency of what was said and the manner
in which it was said, the Appeal Panel noted that, as a
general rule, repetitive personal attacks and those made using demeaning,
sarcastic, or otherwise inappropriate language are more likely to warrant
disciplinary action. As for the presiding judge’s reaction to the lawyer’s
behaviour, when the impugned behaviour occurs in a courtroom, what, if
anything, the judge does about it and how the lawyer modifies his or her
behaviour thereafter becomes relevant.
Finally, the Appeal Panel’s approach also allows Law Society disciplinary
tribunals to proportionately balance the lawyer’s expressive freedom with its
statutory mandate in any given case. The flexibility built into the Appeal
Panel’s context‑specific approach to assessing a lawyer’s behaviour
allows for a proportionate balancing in any given case. Considering the unique
circumstances in each case enables Law Society disciplinary tribunals to
accurately gauge the value of the impugned speech. This, in turn, allows for a
decision, both with respect to a finding of professional misconduct and any
penalty imposed, that reflects a proportionate balancing of the lawyer’s
expressive rights and the Law Society’s statutory mandate.
Although
the approach that it set out was appropriate, the Appeal Panel’s finding of
professional misconduct against G on the basis of incivility was unreasonable. First,
even though the Appeal Panel accepted that G’s allegations of prosecutorial
misconduct were made in good faith, it used his honest but erroneous legal
beliefs as to the disclosure and admissibility of documents to conclude that
his allegations lacked a reasonable basis. The Appeal Panel acknowledged that
submissions made on the basis of a sincerely held but erroneous legal belief
cannot ground a finding of professional misconduct, and accepted that in making
his allegations of impropriety against the OSC prosecutors, G was not
deliberately misrepresenting the law and was not ill‑motivated. Despite
this, the Appeal Panel used G’s legal errors to conclude that he had no
reasonable basis for his repeated allegations of prosecutorial impropriety. Such
a finding was not reasonably open to the Appeal Panel. Allegations of
prosecutorial misconduct based on a sincerely held but mistaken legal belief
will be reasonably based as long as they have a sufficient factual foundation.
The question for incivility purposes is not whether G was right or wrong on the
law; rather, the question is whether, based on his understanding of the
law, his allegations of prosecutorial misconduct, which the Appeal Panel found
were made in good faith, had a factual foundation. In this case, they did. G’s
legal errors, coupled with the OSC prosecutors’ conduct, provided the
reasonable basis for his allegations. Accordingly, based on the Appeal Panel’s
own approach, G’s allegations were made in good faith and they were reasonably
based.
Second,
the other contextual factors in this case could not reasonably support a
finding of professional misconduct against G on the basis of incivility. The
evolving abuse of process law at the time accounts, at least in part, for the
frequency of G’s allegations; the presiding judge took a passive approach in
the face of G’s allegations; and G’s behaviour changed in response to the
directions of the trial judge. The Appeal Panel failed to account for these
contextual factors in its analysis. The only conclusion that was reasonably
open to the Appeal Panel on the record before it was a finding that G was not
guilty of professional misconduct. Because G, in the circumstances of this
case, could not reasonably be found guilty of professional misconduct, the
complaints against him are dismissed and there is no need to remit the matter
to the Law Society.
Per
Côté J.: There is agreement with the majority that the Appeal
Panel erred in finding that G committed professional misconduct and that there
is no need to remit the matter back to the Law Society.
However,
there is disagreement as to the applicable standard of review. The Appeal
Panel’s finding of professional misconduct is reviewable on the correctness
standard on the basis that the impugned conduct occurred in a courtroom. Applying
the approach set out in Dunsmuir, this Court’s existing jurisprudence
does not dictate the standard of review in this appeal. The
context of this case is different in one critical — and dispositive — respect:
the impugned conduct occurred before a judge in open court. The fact that the
relevant conduct occurred in a court of law implicates constitutional
imperatives about the judiciary’s independence and its capacity to control its
own processes, and rebuts the presumption of
reasonableness. Correctness review is required because the Law Society’s
inquiry into in‑court professional misconduct engages the contours of the
constitutional relationship between the courts and government regulators. Judicial
independence is, without question, a cornerstone of Canadian democracy. It is
essential to both the impartiality of the judiciary and the maintenance of the
rule of law. An inquiry by a law society into a lawyer’s in‑court conduct
risks intruding on the judge’s function of managing the trial process and his
authority to sanction improper behaviour. To protect judicial independence, and
the authority of judges to manage the proceedings before them in the manner
they see fit, the judiciary — not a regulatory body, a creature of the
political branches of government — should have the final say over the
appropriateness of a lawyer’s conduct in that sphere. The reasonableness
standard of review, which requires judicial deference to a law society’s
disciplinary determinations, is inconsistent with this prerogative. Therefore,
correctness review is required to ensure proper respect for the judiciary’s
constitutionally guaranteed place in our democracy.
Per Karakatsanis,
Gascon and Rowe JJ. (dissenting): There is agreement with
the majority that reasonableness is the applicable standard of review. The
simple fact that a lawyer’s behavior occurs in the courtroom does not deprive
the Law Society of its legitimate role in regulating the profession nor does it
justify heightened judicial scrutiny. There is also agreement with the majority
that, in articulating a standard of professional misconduct, the Appeal Panel
reasonably set out a contextual approach which will vary according to the
particular factual matrix in which it is applied.
However,
the majority’s disposition in this appeal is disagreed with. The Appeal Panel’s
decision was reasonable and there is no basis to interfere. Accordingly, the
appeal should be dismissed. The majority fundamentally misstates the Appeal
Panel’s approach to professional misconduct and reweighs the evidence to reach
a different result. This is inconsistent with reasonableness review as it
substitutes the Court’s judgment for that of the legislature’s chosen decision
maker. Where, as here, the standard of review analysis leads to the application
of reasonableness, deference is not optional. Deference bars a reviewing court
from conducting an exacting criticism of a decision in order to reach the
result that the decision was unreasonable. It follows that a reviewing court
also cannot supplement the decision maker’s reasoning for the purpose of
undermining it. Neither may a court reweigh evidence or contextual factors
considered by the decision maker. At all times, the starting point of
reasonableness review is the reasons for the decision under review. There is no
basis on this record to interfere with the Appeal Panel’s decision. Its
analysis was cogent, logical, transparent and grounded in the evidence.
A
reviewing court should give effect to the Appeal Panel’s decision to adopt an
approach with both subjective and objective considerations (i.e. to require
good faith and a reasonable basis for allegations of prosecutorial misconduct
or that impugn the integrity of an opponent). It was open to the Appeal Panel
to consider both the factual and legal bases for the allegations at issue, and to
conclude that there was no reasonable basis in fact or in law for G’s
allegations. The Appeal Panel’s mandate permits it to determine any question of
fact or law that arises in a proceeding before it. As such, the Appeal Panel
was entitled to consider whether there is a reasonable basis for the
allegations. Reasonableness, as opposed to good faith, implies consideration of
whether the allegations, objectively, had a legal or factual basis. The Appeal
Panel’s approach is justified by the serious consequences that irresponsible
attacks can have on opposing counsel’s reputation as well as the public
perception of the justice system. Collapsing the subjective and objective
elements of this approach restricts the Appeal Panel’s ability to assess the
reasonableness of legal submissions to determining whether the lawyer was
acting in good faith. It was open to the Appeal Panel to hold that a lawyer who
erroneously alleges prosecutorial misconduct or impugns the integrity of
opposing counsel should not be shielded from professional sanction because of
his or her own incompetence.
In
determining whether G’s allegations crossed the line into professional
misconduct, the Appeal Panel applied its expertise and decided how to assess
the evidence as a whole. It was open to the Appeal Panel to weigh the evidence
in the way it did. Its findings were amply supported by the record, as were its
conclusions on the cumulative effects of G’s conduct. Ultimately, the reasons
supported the Appeal Panel’s conclusion that G was engaged in professional
misconduct. Both the evidentiary foundation and the logic of the reasons were
sound. The decision was justifiable, intelligible, and transparent and fell
within the range of reasonable outcomes.
The
Appeal Panel’s decision also proportionately balanced the value of freedom of
expression with its mandate to ensure that lawyers conduct themselves
professionally. The Appeal Panel was alert to the importance of lawyers’
expressive freedoms and the critical role of zealous advocacy in our system. In
order to ensure that these principles were limited no more than necessary, the
Appeal Panel adopted a contextual approach that took into account the dynamics
of the courtroom setting. It was reasonable for the Appeal Panel to conclude
that in the context of this trial, zealous advocacy did not require G to make
unfounded allegations of prosecutorial misconduct, to impugn the integrity of
his opponents or to frequently resort to invective when describing them.
There
are a number of concerns about the implications that follow from the majority’s
decision: they immunize erroneous allegations from sanction by the Law Society,
validate improper conduct and threaten to undermine the administration of
justice and the culture change that the Court has called for in recent years. Moreover,
setting aside the decision of the Appeal Panel has the potential to undermine
the ability of law societies to promote the efficient resolution of disputes. Law
societies are important actors in the culture change that is needed. Their
decisions respecting professional misconduct should be approached with
deference.
Cases Cited
By Moldaver J.
Applied:
Law Society of New Brunswick v. Ryan,
2003 SCC 20, [2003] 1 S.C.R. 247; Doré v. Barreau du Québec, 2012 SCC
12, [2012] 1 S.C.R. 395; referred
to: R. v. Felderhof, 2007 ONCJ 345, 224
C.C.C. (3d) 97; R. v. Felderhof, 2002 CanLII 41888, aff’d (2003), 68
O.R. (3d) 481; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R 190; Canadian National Railway Co. v. Canada
(Attorney General), 2014 SCC 40, [2014] 2 S.C.R. 135;
Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016
SCC 47, [2016] 2 S.C.R. 293; Mouvement laïque québécois v. Saguenay (City),
2015 SCC 16, [2015] 2 S.C.R. 3; McLean v. British Columbia (Securities
Commission), 2013 SCC 67, [2013] 3 S.C.R. 895; R. v. McClure, 2001
SCC 14, [2001] 1 S.C.R. 445; Green v. Law Society of Manitoba, 2017 SCC
20, [2017] 1 S.C.R. 360; Canadian National Railway Co. v. McKercher LLP,
2013 SCC 39, [2013] 2 S.C.R. 649; Re Stevens and Law Society of Upper Canada
(1979), 55 O.R. (2d) 405; Beauregard v. Canada, [1986] 2 S.C.R. 56; Valente
v. The Queen, [1985] 2 S.C.R. 673; Marchand (Litigation Guardian) v.
Public General Hospital Society of Chatham (2000), 51 O.R. (3d) 97; Phillips v. Ford Motor Co. (1971), 18
D.L.R. (3d) 641; Canada (Attorney General) v. Federation of Law Societies of
Canada, 2015 SCC 7, [2015] 1 S.C.R. 401; Quebec (Director of Criminal
and Penal Prosecutions) v. Jodoin, 2017 SCC 26, [2017] 1 S.C.R. 478; Hill
v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130; R. v.
Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167; R. v. Cody, 2017 SCC 31,
[2017] 1 S.C.R. 659; R. v. O’Connor, [1995] 4 S.C.R. 411; Pappajohn
v. The Queen, [1980] 2 S.C.R. 120; R. v. Bulmer,
[1987] 1 S.C.R. 782; R. v. Moreau (1986), 26 C.C.C. (3d) 359; Histed
v. Law Society of Manitoba, 2007 MBCA 150, 225 Man. R. (2d) 74; Law
Society of Upper Canada v. Wagman, 2008 ONLSAP 14; Brouillard v. The
Queen, [1985] 1 S.C.R. 39; R. v. Henderson (1999),
44 O.R. (3d) 628; Loyola High School v. Quebec (Attorney General), 2015
SCC 12, [2015] 1 S.C.R. 613; Irwin Toy Ltd. v. Quebec (Attorney General),
[1989] 1 S.C.R. 927; Montréal (City) v. 2952‑1366 Québec Inc.,
2005 SCC 62, [2005] 3 S.C.R. 141; R. v. Keegstra, [1990] 3 S.C.R.
697; RJR‑MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; R. v. La, [1997] 2 S.C.R. 680; R.
v. Clement (2002), 166 C.C.C. (3d) 219; Giguère v. Chambre des notaires
du Québec, 2004 SCC 1, [2004] 1 S.C.R. 3.
By
Côté J.
Applied: Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190;
distinguished: Law Society of New Brunswick v. Ryan, 2003 SCC
20, [2003] 1 S.C.R. 247; Doré v. Barreau du Québec, 2012 SCC 12, [2012]
1 S.C.R. 395; referred to: McLean v. British
Columbia (Securities Commission), 2013 SCC 67,
[2013] 3 S.C.R. 895; Rogers Communications
Inc. v. Society of Composers, Authors and Music Publishers of Canada,
2012 SCC 35, [2012] 2 S.C.R. 283; Reference
Re Remuneration of Judges of the Provincial
Court of Prince Edward Island,
[1997] 3 S.C.R. 3;
Beauregard v. Canada,
[1986] 2 S.C.R. 56; Mackeigan v. Hickman, [1989] 2 S.C.R. 796.
By Karakatsanis,
Gascon and Rowe JJ. (dissenting)
Dunsmuir v. New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190; Law Society of New Brunswick v. Ryan, 2003 SCC 20,
[2003] 1 S.C.R. 247; Canada (Citizenship and Immigration) v. Khosa, 2009
SCC 12, [2009] 1 S.C.R. 339; Dr. Q v. College of Physicians and
Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226; British
Columbia (Workers’ Compensation Appeal Tribunal) v. Fraser Health Authority,
2016 SCC 25, [2016] 1 S.C.R. 587; Suresh v. Canada (Minister of Citizenship
and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3; Lake v. Canada
(Minister of Justice), 2008 SCC 23, [2008] 1 S.C.R. 761; Canada
(Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R.
748; Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395; Wilson
v. Atomic Energy of Canada Ltd., 2016 SCC 29, [2016] 1 S.C.R. 770; R. v.
Felderhof (2003), 235 D.L.R. (4th) 131; R. v. Felderhof, 2002 CanLII
41888; R. v. Felderhof, 2003 CanLII 41569; R. v. Jordan, 2016 SCC
27, [2016] 1 S.C.R. 631; Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R.
87; R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms,
ss. 2 (b), 7 .
Law Society Act, R.S.O. 1990, c. L.8,
ss. 4.1, 4.2, 34(1), 49.35(1), 62(0.1)10.
Professional Conduct Handbook made under
the Law Society Act, R.S.O. 1980, c. 233 (effective
January 30, 1987 to October 31, 2000).
Rules of Professional Conduct made under
the Law Society Act, R.S.O. 1990, c. L.8 (effective
November 1, 2000 to September 30, 2014), rr. 2.01, 4.01(1), (6),
6.03(1).
Rules of Professional Conduct made under
the Law Society Act, R.S.O. 1990, c. L.8 (effective October 1,
2014 and updated September 28, 2017), rr. 2.1‑1, 2.1‑2,
3.1, 5.1‑1, 5.1‑5, 5.6‑1, 7.2‑1, 7.2‑4.
Authors Cited
Code, Michael. “Counsel’s Duty of Civility: An Essential Component
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Cory, Peter deC. The Inquiry Regarding Thomas Sophonow: The
Investigation, Prosecution and Consideration of Entitlement to Compensation.
Winnipeg: Manitoba Justice, 2001.
Dyzenhaus, David. “The Politics of Deference: Judicial Review and
Democracy”, in Michael Taggart, ed., The Province of Administrative Law.
Oxford: Hart, 1997, 279.
Federation of Law Societies of Canada. Model Code of Professional
Conduct (updated March 14, 2017), rule 5.1‑1 commentary 1
(online: https://flsc.ca/wp-content/uploads/2018/03/Model-Code-as-amended-March-2017-Final.pdf;
archived version: http://www.scc-csc.ca/cso-dce/2018SCC-CSC27_1_eng.pdf ).
Morden, John W. “Notes for Convocation Address — Law Society of
Upper Canada, February 22, 2001”, in Law Society of Upper Canada, ed., Plea
Negotiations: Achieving a “Win‑Win” Result. Toronto: Law Society of
Upper Canada, 2003, 1‑1.
Nagorney, Kara Ann. “A Noble Profession? A Discussion of Civility
Among Lawyers” (1999), 12 Geo. J. Legal Ethics 815.
Pue, W. Wesley. “Becoming ‘Ethical’: Lawyers’ Professional
Ethics in Early Twentieth Century Canada”, in Dale Gibson and W. Wesley
Pue, eds., Glimpses of Canadian Legal History. Winnipeg: Legal Research
Institute of the University of Manitoba, 1991, 237.
Woolley, Alice. “Does Civility Matter?” (2008), 46 Osgoode Hall
L.J. 175.
Woolley, Alice. Understanding Lawyers’ Ethics in Canada, 2nd
ed. Toronto: LexisNexis, 2016.
APPEAL
from a judgment of the Ontario Court of Appeal (MacPherson, Cronk and Brown JJ.A.),
2016 ONCA 471, 131 O.R. (3d) 1, 352 O.A.C. 210, 358 C.R.R. (2d) 1, 1 Admin L.R.
(6th) 175, [2016] O.J. No. 3094 (QL), 2016 CarswellOnt 9453 (WL Can.),
affirming a decision of the Divisional Court (Sachs, Nordheimer and Harvison
Young JJ.), 2015 ONSC 686, 124 O.R. (3d) 1, 330 O.A.C. 202, 382 D.L.R.
(4th) 337, [2015] O.J No. 444 (QL), 2015 CarswellOnt 1238 (WL Can.), which
affirmed a decision of the Law Society Appeal Panel, 2013 ONLSAP 41, [2013]
L.S.D.D. No. 186 (QL), 2013 CarswellOnt 19188 (WL Can.), which affirmed in
part a decision of the Law Society Hearing Panel, 2012 ONLSHP 94, [2012] L.S.D.D. No. 92 (QL). Appeal allowed, Karakatsanis, Gascon and Rowe JJ. dissenting.
Earl A. Cherniak, Q.C., and Martin
Mendelzon,
for the appellant.
J. Thomas Curry, Jaan E. Lilles and Andrew M. Porter, for the respondent.
James D. Sutton and Allyson Ratsoy, for the intervener the
Director of Public Prosecutions.
Milan Rupic, for the intervener the Attorney
General of Ontario.
Sharon H. Pratchler, Q.C., for the intervener the Attorney General of Saskatchewan.
Lisa Mallia, for the intervener the Law
Society Tribunal.
Terrence J. O’Sullivan, Deborah C. Templer and Matthew R. Law, for the intervener the
Advocates’ Society.
André‑Philippe Mallette, for the intervener Barreau du
Québec.
Cara Zwibel, for the intervener the Canadian
Civil Liberties Association.
Joseph J. Arvay, Q.C., and Catherine George, for the interveners the British Columbia
Civil Liberties Association and the Independent Criminal Defence Advocacy
Society.
Gregory DelBigio, Q.C., and Alison M. Latimer, for the intervener the Federation
of Law Societies of Canada.
Paul Cavalluzzo and Adrienne Telford, for the intervener the Ontario
Crown Attorneys’ Association.
Allan Rouben, Thomas Connolly and Darcy
Romaine, for the intervener the Ontario Trial Lawyers Association.
Pierre Bienvenu, Andres C. Garin and Jean‑Christophe Martel, for the intervener the Canadian Bar Association.
Frank Addario, Samara Secter and Robin Parker, for the intervener the Criminal
Lawyers’ Association of Ontario.
The judgment of McLachlin C.J. and Abella,
Moldaver, Wagner and Brown JJ. was delivered by
Moldaver J. —
I.
Overview
[1]
The trial process in Canada is one of the
cornerstones of our constitutional democracy. It is essential to the
maintenance of a civilized society. Trials are the primary mechanism whereby
disputes are resolved in a just, peaceful, and orderly way.
[2]
To achieve their purpose, it is essential that
trials be conducted in a civilized manner. Trials marked by strife, belligerent
behaviour, unwarranted personal attacks, and other forms of disruptive and
discourteous conduct are antithetical to the peaceful and orderly resolution of
disputes we strive to achieve.
[3]
By the same token, trials are not — nor are they
meant to be — tea parties. A lawyer’s duty to act with civility does not exist
in a vacuum. Rather, it exists in concert with a series of professional obligations
that both constrain and compel a lawyer’s behaviour. Care must be taken to
ensure that free expression, resolute advocacy and the right of an accused to
make full answer and defence are not sacrificed at the altar of civility.
[4]
The proceedings against the appellant, Joseph
Groia, highlight the delicate interplay that these considerations give rise to.
At issue is whether Mr. Groia’s courtroom conduct in the case of R. v.
Felderhof, 2007 ONCJ 345, 224 C.C.C. (3d) 97, warranted a finding of
professional misconduct by the Law Society of Upper Canada. To be precise, was
the Law Society Appeal Panel’s finding of professional misconduct against Mr.
Groia reasonable in the circumstances? For the reasons that follow, I am
respectfully of the view that it was not.
[5]
The Appeal Panel developed an approach for
assessing whether a lawyer’s uncivil behaviour crosses the line into
professional misconduct. The approach, with which I take no issue, targets the
type of conduct that can compromise trial fairness and diminish public
confidence in the administration of justice. It allows for a proportionate
balancing of the Law Society’s mandate to set and enforce standards of civility
in the legal profession with a lawyer’s right to free speech. It is also
sensitive to the lawyer’s duty of resolute advocacy and the client’s
constitutional right to make full answer and defence.
[6]
Moreover, the Appeal Panel’s approach is
flexible enough to capture the broad array of situations in which lawyers may
slip into uncivil behaviour, yet precise enough to guide lawyers and law
societies on the scope of permissible conduct.
[7]
That said, the Appeal Panel’s finding of
professional misconduct against Mr. Groia on the basis of incivility was, in my
respectful view, unreasonable. Even though the Appeal Panel accepted that Mr.
Groia’s allegations of prosecutorial misconduct were made in good faith, it
used his honest but erroneous views as to the disclosure and admissibility of
documents to conclude that his allegations lacked a reasonable basis. However,
as I will explain, Mr. Groia’s allegations were made in good faith and they
were reasonably based. As such, the allegations themselves could not reasonably
support a finding of professional misconduct.
[8]
Nor could the other contextual factors in this
case reasonably support a finding of professional misconduct against Mr. Groia
on the basis of incivility. The evolving abuse of process law at the time
accounts, at least in part, for the frequency of Mr. Groia’s allegations; the
presiding judge took a passive approach in the face of Mr. Groia’s allegations;
and when the presiding judge and reviewing courts did direct Mr. Groia, apart
from a few slips, he listened. The Appeal Panel failed to account for these
contextual factors in its analysis. In my view, the only conclusion that was
reasonably open to the Appeal Panel on the record before it was a finding that
Mr. Groia was not guilty of professional misconduct.
[9]
Accordingly, I would allow Mr. Groia’s appeal.
II.
Factual Background
[10]
Mr. Groia’s alleged misconduct stems from his
in-court behaviour while representing John Felderhof. Mr. Felderhof was an
officer and director of Bre-X Minerals Ltd., a Canadian mining company. Bre-X
collapsed when claims that it had discovered a gold mine proved false. The
fraud — one of the largest in Canadian capital markets — cost investors over $6
billion. The Ontario Securities Commission (“OSC”) charged Mr. Felderhof with
insider trading and authorizing misleading news releases under the Securities
Act, R.S.O. 1990, c. S.5.
[11]
Mr. Felderhof hired Mr. Groia, a former OSC
prosecutor, to defend him. The trial proceeded in the Ontario Court of Justice
before Justice Peter Hryn. It took place in two phases. Phase One began on
October 16, 2000 and lasted 70 days. Phase Two did not begin until March 2004.
On July 31, 2007, Mr. Felderhof was acquitted of all charges.
[12]
Phase One of the Felderhof trial was
characterized by a pattern of escalating acrimony between Mr. Groia and the OSC
prosecutors. A series of disputes plagued the proceedings with a toxicity that
manifested itself in the form of personal attacks, sarcastic outbursts and
allegations of professional impropriety, grinding the trial to a near
standstill.
A.
Disclosure Disputes
[13]
Disputes between Mr. Groia and the OSC
prosecutors arose during the disclosure process. The Bre-X investigation
yielded an extensive documentary record. The OSC initially disclosed interview
transcripts and so-called “C-Binders” — binders of documents the OSC intended
to use as part of its case against Mr. Felderhof. It did not, however, disclose
a substantial body of additional documents it had in its possession. The OSC
prosecutors and Mr. Groia disagreed over the scope and format of further
disclosure sought by the defence. According to Mr. Groia, it was the OSC’s
responsibility to sort through all of the documents it had in its possession
and to disclose hard copies of any relevant document to the defence. When the
OSC prosecutors refused to do so, Mr. Groia wrote a letter to the OSC alleging
that the prosecution was “operating under a serious misapprehension of its
disclosure obligation[s]”, an error that Mr. Groia described as “an abuse of
process”: Law Society Appeal Panel, 2013 ONLSAP 41, at para. 35 (CanLII) (“A.P.
reasons”). He would build on these themes as the trial progressed. In response,
the OSC offered to disclose electronic copies of the documents in its
possession and provide Mr. Groia “with a reasonable supply of blank paper”:
A.P. reasons, at paras. 35-37.
[14]
Dissatisfied with the OSC’s response, Mr. Groia
moved for additional disclosure. Mr. Naster, the lead OSC prosecutor, argued
that the OSC was not aware of any relevant document that had not been disclosed
to Mr. Felderhof. The trial judge, however, agreed with Mr. Groia and ordered
the OSC to disclose a further 235 boxes of documents and hard copies of
documents stored on 15 discs in its possession.
B.
The Second Disclosure Motion
[15]
As the trial neared, the parties were still at
odds over disclosure. Adamant that the OSC had not fulfilled its disclosure
obligations, Mr. Groia sent Mr. Naster a letter accusing the OSC of adopting “a
‘win at any costs’ mentality” which demonstrated “a shocking disregard for [Mr.
Felderhof’s] rights”.
[16]
Mr. Groia then brought a motion arguing that the
OSC’s disclosure was so deficient that it amounted to an abuse of process
warranting a stay of proceedings. In the alternative, Mr. Groia sought full
disclosure, and in the further alternative, an order prohibiting the OSC from
calling witnesses until it made full disclosure. Interspersed throughout Mr.
Groia’s submissions on the motion were allegations that the prosecutors were
“unable or unwilling . . . to recognize their responsibilities”, motivated by
an “animus towards the defence”, and determined to make Mr. Felderhof’s ability
to defend himself “as difficult as possible”.
[17]
By the end of the motion, Mr. Groia conceded
that the stringent test for a stay of proceedings had not been met.
Accordingly, the trial judge declined to stay the prosecution. Once again,
however, he was satisfied that the OSC had not fulfilled its disclosure
obligations and he ordered additional disclosure. The trial judge also
admonished the OSC for a comment made by one of its media personnel that the
OSC’s goal “was simply to seek a conviction on the charges” it had laid: A.P.
reasons, at para. 55.
C.
The Admissibility of Documents
[18]
Characteristic of most Securities Act prosecutions,
the case against Mr. Felderhof relied heavily on documentary evidence. Between
them, the prosecution and defence had nearly 100 binders containing thousands
of documents. Disputes over the admissibility of those documents was a major
source of friction throughout the trial.
[19]
Mr. Naster initially suggested that either party
could provisionally tender documents, subject to arguments as to their
admissibility at the end of the trial. Mr. Groia rejected this approach. He was
concerned that given the staggering size of the fraud, a number of Bre-X
documents were falsified. As such, he insisted that the admissibility of each
document should be ruled on as the document was tendered. Mr. Naster then
changed his position, seeking an omnibus ruling on the admissibility of all of
the documents. The trial judge declined to hear Mr. Naster’s motion, and the
parties were put to the strict proof of each document they proposed to tender.
[20]
The disputes resulted in frequent objections and
lengthy arguments on the admissibility and use of individual documents. The
first OSC witness had to be excused for large periods of time as the parties
argued. The disputes became increasingly hostile and ground the trial to a near
standstill. After 42 days of evidence, the first OSC witness’s testimony had
yet to be completed.
[21]
Much of the disagreement stemmed from Mr.
Groia’s honest but mistaken understanding of the law of evidence and the role
of the prosecutor. His position on the admissibility of documents was founded
on two legal errors. First, Mr. Groia maintained that the prosecution was
duty-bound to introduce all authentic, relevant documents and that its failure
to introduce relevant exculpatory documents through its own witnesses was a
deliberate tactic designed to ensure that Mr. Felderhof did not receive a fair
trial.
[22]
Second, Mr. Groia believed that he could put
documents, acknowledged by the OSC as being authentic, to the first OSC witness
even though that witness had not authored them and could not identify them. Mr.
Naster’s objections to this approach spawned further allegations of
prosecutorial impropriety. Mr. Groia argued that the OSC was using “a
conviction filter” and thwarting Mr. Groia’s attempts to secure a fair trial
for his client.
[23]
Mr. Groia’s mistaken position on the
admissibility of documents was reinforced by Mr. Naster’s comment in the first
disclosure motion that he had “an obligation as a prosecutor to ensure that all
relevant materials are placed before [the trial judge]”: A.P. reasons, at para.
38. In addition, Mr. Groia mistook Mr. Naster’s concession that he was
duty-bound to disclose all relevant documents as a promise that he would
consent to the admissibility of those documents at trial. In Mr. Groia’s
view, Mr. Naster unfairly reneged on this promise.
[24]
The OSC was not entirely blameless for these
skirmishes. Mr. Naster continued to challenge the trial judge’s ruling
declining to hear an omnibus document motion, lamenting that he was getting
“shafted big time”. Both sides stubbornly dug their heels in, refusing to budge
and taking every opportunity to quarrel.
[25]
Despite the frequency and fervor of the
disputes, the trial judge initially adopted a hands-off approach, opting to
stay above the fray. Mr. Naster repeatedly invited the trial judge to rule on
Mr. Groia’s allegations of prosecutorial misconduct and to stay the proceedings
as an abuse of process if he found the allegations to be substantiated. For his
part, Mr. Groia made it clear that while he did not intend to bring an abuse of
process motion at the time, he was putting the prosecutors on notice that their
conduct was unacceptable and laying the groundwork for an abuse of process
motion later in the proceedings. Accordingly, the trial judge postponed any
ruling on the propriety of the prosecution’s conduct.
[26]
It was not until the 57th day of trial that the
judge directed Mr. Groia to stop repeating his misconduct allegations. Instead,
whenever Mr. Groia felt the prosecution was acting inappropriately, he was to
simply state that he was making “the same objection”. The trial judge
reiterated his instruction a few days later. Mr. Groia largely followed the
trial judge’s directions for the remainder of Phase One.
D.
The Judicial Review Application
[27]
During a scheduled three-week hiatus in the
Felderhof trial, the OSC brought a judicial review application in the Superior
Court before A. Campbell J., seeking the removal of the trial judge. The OSC
argued that the trial judge had committed a number of errors which caused him
to lose jurisdiction and undermined the OSC’s right to a fair trial. One of the
OSC’s grounds for its application was the trial judge’s failure to rein in Mr.
Groia’s uncivil behaviour, thereby creating a reasonable apprehension of bias.
[28]
Justice Campbell dismissed the application. He
found no jurisdictional error necessitating the trial judge’s removal. He
concluded that the trial judge had acted in an even-handed manner throughout
Phase One: R. v. Felderhof, 2002 CanLII 41888, at paras. 281-85 (“Felderhof
ONSC”). Campbell J. also noted that Mr. Groia’s stance on the role of the
prosecutor was mistaken, explaining, at para. 33, that the prosecution was
entitled to seek a conviction “within the appropriate limits of fairness”.
Despite Mr. Felderhof’s success on the judicial review application, Campbell J.
declined to order costs against the OSC, in part because of Mr. Groia’s
“appallingly unrestrained” conduct.
[29]
The Court of Appeal for Ontario dismissed the
OSC’s appeal from Campbell J.’s order: R. v. Felderhof (2003), 68 O.R.
(3d) 481 (“Felderhof ONCA”). Writing for a unanimous panel, Rosenberg
J.A. clarified that although the defence has the right to allege abuse of
process, that allegation should only be made at the appropriate juncture and
with a sufficient factual foundation. And even then, “defence counsel [was]
obliged to make submissions without the rhetorical excess and invective that
Mr. Groia sometimes employed”: para 93.
[30]
Campbell J. and Rosenberg J.A. were each
critical of Mr. Groia’s behaviour throughout the trial. Campbell J. observed
that “Mr. Groia took every opportunity to needle Mr. Naster with sarcastic
allegations of professional misconduct” (para. 284) and described Mr. Groia’s
submissions as “descend[ing] from legal argument to irony to sarcasm to
petulant invective” (para. 64). Rosenberg J.A. similarly noted that “Mr. Groia
was prone to rhetorical excess and sarcasm” and described his submissions as
“unseemly”, “unhelpful” and “improper”: paras. 13 and 80.
[31]
Both judges also voiced displeasure with how the
prosecution had behaved, noting that there had been “tactical manoeuvring on
both sides” (Felderhof ONCA, at para. 68), and that “[n]either side . .
. ha[d] any monopoly over incivility or rhetorical excess” (Felderhof ONSC,
at para. 264).
[32]
The Felderhof trial resumed in March 2004, with
new counsel appearing for the OSC. In line with the guidance provided by
Campbell J. and Rosenberg J.A., the evidentiary disputes were resolved and the
second phase of the trial proceeded without further incident, completing on
July 31, 2007, with Mr. Felderhof being acquitted on all charges.
III.
Procedural History
A.
The Law Society Disciplinary Proceedings
[33]
In 2004, the Law Society launched an
investigation into Mr. Groia’s conduct during the Felderhof trial. The Law
Society initiated the investigation on its own motion; no independent complaint
was filed against Mr. Groia. At Mr. Groia’s request, the Law Society postponed
its investigation until the Felderhof trial ended. On November 18, 2009 — more
than nine years after the Felderhof trial began — the Law Society brought
disciplinary proceedings against Mr. Groia, alleging professional misconduct
based on his uncivil behaviour during Phase One of the trial.
[34]
The professional misconduct allegations were
first litigated before a three-member panel of the Law Society (the Hearing
Panel). Mr. Groia testified in his own defence. The Hearing Panel concluded
that allowing Mr. Groia to re-litigate the propriety of his conduct was an
abuse of process given Campbell J.’s and Rosenberg J.A.’s findings on the issue
— this despite the fact that Mr. Groia was not a party to the judicial review
proceedings and made no submissions on his own behalf in defence of his
behaviour. Relying heavily on those findings, the Hearing Panel found Mr. Groia
guilty of professional misconduct: Law Society Hearing Panel, 2012 ONLSHP 94
(“H.P. reasons”). It suspended Mr. Groia’s licence to practice law for two
months and ordered him to pay nearly $247,000 in costs: Hearing Panel decision
on penalty, 2013 ONLSHP 59.
[35]
Mr. Groia appealed the Hearing Panel’s decision
to the Law Society Appeal Panel. The Appeal Panel found that the Hearing Panel
had erred in treating the Felderhof judicial review findings as conclusive and
precluding Mr. Groia from defending his behaviour. At the request of both
parties, the Appeal Panel considered the professional misconduct allegations
against Mr. Groia de novo based on the record of proceedings before the
Hearing Panel, including Mr. Groia’s testimony before that body.
[36]
The Appeal Panel grappled with the issue of when
in-court incivility amounts to professional misconduct under the Law Society’s
codes of conduct in force at the relevant time.[1] It reasoned that incivility “capture[s] a range of unprofessional
communications” (para. 6) and ultimately settled on a multifactorial,
context-specific approach for assessing a lawyer’s behaviour. In particular,
the Appeal Panel articulated a series of contextual factors — what the lawyer
said, the manner and frequency in which it was said, and the presiding judge’s
reaction to the lawyer’s behaviour — that should generally be taken into
account.
[37]
In the final analysis, the Appeal Panel
concluded that Mr. Groia was guilty of professional misconduct. As indicated,
it based its finding entirely on the record before the Hearing Panel. Because
the Appeal Panel did not hear Mr. Groia testify, it was not in a position to
assess his credibility. It therefore assumed that Mr. Groia had made his
allegations of professional impropriety against the OSC prosecutors in good
faith, based on his testimony before the Hearing Panel. Nevertheless, it
concluded that Mr. Groia’s repeated personal attacks lacked a reasonable basis.
While the Appeal Panel acknowledged that the prosecutors “were not entirely
blameless”, it could find nothing in the way the OSC conducted the trial that
suggested it adopted a win-at-all-costs approach or intentionally sabotaged Mr.
Groia’s attempt to secure a fair trial for his client. The Appeal Panel reduced
Mr. Groia’s suspension to one month and decreased the costs award against him
to $200,000.
B.
The Ontario Superior Court of Justice —
Divisional Court, 2015 ONSC 686, 124 O.R. (3d) 1
[38]
Mr. Groia appealed to the Divisional Court from
the Appeal Panel’s decision. The Divisional Court reasoned that the Appeal
Panel’s approach did not sufficiently protect resolute advocacy. In its view,
for a lawyer to be found guilty of professional misconduct, it was necessary
that the lawyer’s behaviour bring, or have a tendency to bring, the
administration of justice into disrepute. Nevertheless, the Divisional Court
upheld the Appeal Panel’s decision as reasonable. It found that the Appeal
Panel considered all of the relevant factors and “expressed, in a fair,
rational and understandable way, why [it] ultimately concluded that the
appellant’s conduct amounted to professional misconduct”: para. 97.
C.
The Court of Appeal for Ontario, 2016 ONCA 471,
131 O.R. (3d) 1
[39]
A majority of the Court of Appeal dismissed Mr.
Groia’s further appeal. Cronk J.A., writing for the majority, identified
reasonableness as the appropriate standard of review. In her view, nothing
displaced the presumption of reasonableness that applied to the Appeal Panel’s
interpretation of its enabling legislation.
[40]
Justice Cronk found the Appeal Panel’s decision
reasonable. It did not unduly impinge on a lawyer’s duty to resolutely advocate
on his or her client’s behalf; it proportionately balanced the lawyer’s and
client’s expressive freedoms; and it was not vague or ill-defined. According to
Cronk J.A., the Appeal Panel’s finding of professional misconduct was amply
justified. In her view, Mr. Groia’s conduct “exceeded even the most broadly
defined reasonable boundaries of zealous advocacy”, “affected the orderly
progression of the trial” and “contributed to the delay in the completion of
the testimony of the first witness”: para. 211.
[41]
Justice Brown, dissenting, disagreed with the
majority’s position on both the standard of review and the application of that
standard to the Appeal Panel’s decision. In his view, the fact that Mr. Groia’s
conduct took place in court fundamentally altered the analysis. The primacy of
the judiciary as arbiters of in-court conduct mandated correctness review to
ensure that “courts remain the final umpires of the propriety of what
barristers do in courtrooms”: para. 313.
[42]
In Brown J.A.’s view, the Appeal Panel’s
approach to determining whether a lawyer’s behaviour warrants professional
sanction underemphasized the effect of the lawyer’s conduct on the fairness of
the proceeding. Furthermore, it failed to give “meaningful consideration to the
rulings made by the trial judge” and the “response of the barrister to those
rulings”: para. 360. Brown J.A. proposed a test that assessed the lawyer’s
conduct, its effect on the proceeding, and the presiding judge’s response:
para. 319. Applying that test, he would not have found Mr. Groia guilty of professional
misconduct. Although Mr. Groia’s personal attacks on the OSC prosecutors were
improper, they did not undermine trial fairness. Mr. Groia largely complied
with the trial judge’s instructions to refrain from making invective-laced
allegations. And after the Court of Appeal for Ontario administered a “public
shaming”, Phase Two of the trial proceeded without incident.
IV.
Analysis
A.
The Standard of Review
[43]
This Court’s decisions in Law Society of New
Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, at para. 42, and Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1
S.C.R. 395, at para. 45, establish that law society
misconduct findings and sanctions are reviewed for reasonableness. That
is the standard against which the Appeal Panel’s decision is to be assessed.
[44]
In the ordinary course, an established standard
of review obviates the need for a full standard of review analysis: see Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 62. However,
given the lower courts’ conspicuous disagreement on the standard of review, in
my view it is helpful to explain why a reasonableness standard applies.
[45]
Setting threshold criteria for a finding of
professional misconduct and assessing whether a lawyer’s behaviour satisfies
those criteria involve the interpretation of the Law Society’s home statute and
the exercise of discretion under it and are thus presumptively entitled to
deference. As I will explain, that presumption is not rebutted.
[46]
This Court’s post-Dunsmuir jurisprudence
has firmly entrenched the notion that decisions of specialized administrative
bodies “interpreting [their] own statute or statutes closely connected to
[their] function” are entitled to deference from courts, and are thus
presumptively reviewed for reasonableness: Canadian
National Railway Co. v. Canada (Attorney General),
2014 SCC 40, [2014] 2 S.C.R. 135, at para. 55; see
also Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd.,
2016 SCC 47, [2016] 2 S.C.R. 293, at para. 22; Mouvement
laïque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2 S.C.R. 3, at
para. 46; and McLean v. British Columbia (Securities
Commission), 2013 SCC 67, [2013] 3 S.C.R. 895, at para. 21.
[47]
That presumption applies here. The Appeal
Panel’s approach to determining when incivility amounts to professional
misconduct and its application of that approach in assessing Mr. Groia’s
conduct involve an interpretation of the Rules of Professional Conduct enacted
under its home statute and the discretionary application of general principles
to the facts before it. The Appeal Panel’s decision is thus presumptively
reviewed for reasonableness.
[48]
Mr. Groia, along with Brown J.A. in dissent,
share the view that the presumption of reasonableness is rebutted in this case,
albeit for different reasons. Mr. Groia argues that determining when incivility
amounts to professional misconduct is a question of central importance outside
the Law Society’s expertise. He also adopts Brown J.A.’s position that a
crucial distinction exists between in-court and out-of-court conduct,
necessitating correctness review. With respect, I cannot accept these
arguments.
(1)
Question of Central Importance Outside of the
Law Society’s Expertise
[49]
Dunsmuir identifies
four narrow categories for which correctness review is appropriate. Only one is
at issue here: questions of central importance to the legal system as a whole
and outside the decision maker’s expertise: Dunsmuir, at para. 60. Mr.
Groia argues that determining when in-court behaviour amounts to professional
misconduct falls under this category.
[50]
Unquestionably, lawyers are vital to the proper
functioning of the administration of justice in our free and democratic
society. As Major J. observed in R. v. McClure, 2001 SCC 14 [2001] 1
S.C.R. 445, at para. 2:
The law is a complex web of interests,
relationships and rules. The integrity of the administration of justice depends
upon the unique role of the solicitor who provides legal advice to clients
within this complex system.
By guiding clients
through this “complex web of interests”, lawyers uphold the rule of law. They
provide those subject to our legal system a means to self-determination under
and through the law and guard against arbitrary or unjustified state action:
see A. Woolley, Understanding Lawyers’ Ethics in Canada, (2nd ed. 2016),
at pp. 33-35.
[51]
As such, the permissible scope of their in-court
behaviour is arguably of central importance to the legal system as a whole. But
even assuming that this raises a question of central importance, it cannot be
said that assessing whether incivility amounts to professional misconduct is
outside the Law Society’s expertise. To the contrary, Law Society disciplinary
tribunals have significant expertise regulating the legal profession: Green
v. Law Society of Manitoba, 2017 SCC 20, [2017] 1 S.C.R. 360, at para. 25; Ryan,
at para. 42. One of the Law Society’s core functions “is to establish general
rules applicable to all members to ensure ethical conduct, protect the public
and discipline lawyers who breach the rules”: Canadian National Railway Co.
v. McKercher LLP, 2013 SCC 39, [2013] 2 S.C.R. 649, at para. 15; see also Law
Society Act, R.S.O. 1990, c. L.8, s. 4.1. And the Law Society has over two
centuries of institutional expertise fulfilling this mandate.
[52]
Moreover, Law Society disciplinary panels are
composed, in part, of other lawyers. As Cory J. remarked in Re Stevens and
Law Society of Upper Canada (1979), 55 O.R. (2d) 405 (H.C.J.), at p. 410:
“Probably no one could approach a complaint against a lawyer with more
understanding than a group composed primarily of members of his profession.”
This understanding comes from experience. Lawyers are “keenly aware of the
problems and frustrations that confront a practitioner”: Stevens, at p.
410.
(2)
In-Court Versus Out-of-Court Conduct
[53]
Even where the question under review does not
fit neatly into one of the four Dunsmuir correctness categories, “a
contextual analysis” that reveals a legislative intent not to defer to a
tribunal’s decision may nonetheless rebut the presumption of reasonableness: McLean,
at para. 22; Edmonton East, at para. 32; Saguenay, at para. 46.
Brown J.A. and Mr. Groia refer to one particular contextual factor: Mr. Groia’s
uncivil behaviour took place in a courtroom. In their view, reviewing
professional misconduct findings based on in-court behaviour for reasonableness
impermissibly infringes on judicial independence. They maintain that in
assessing whether courtroom conduct crosses the line, correctness review is
required to ensure “the court has the last word in answering the question”: Groia
ONCA, at para. 280, per Brown J.A..
[54]
With respect, the fact that Mr. Groia’s uncivil
behaviour took place in a courtroom is, in my view, irrelevant to determining
the standard of review. To be sure, the independence of the judiciary is a
constitutional cornerstone: Beauregard v. Canada, [1986] 2 S.C.R. 56, at
pp. 69-73. Crucial to the principle of judicial independence is the presiding
judge’s power to control his or her courtroom. However, I do not see a
deferential standard of review as threatening that power.
[55]
In this regard, I agree with Cronk J.A. that “the application of the reasonableness standard of review in cases
like this one in no way intrudes on a presiding judge’s authority to control
the process in his or her courtroom”: para. 67. Courts
and law societies enjoy concurrent jurisdiction to regulate and enforce
standards of courtroom behaviour. A trial judge is free to control the conduct
in his or her courtroom irrespective of the degree of deference accorded to a
law society’s disciplinary decision by a different court.
[56]
To be clear, the location of the impugned
behaviour is unquestionably relevant to the misconduct analysis itself. As I
will explain, the fact that the behaviour occurs in a courtroom is an important
contextual factor that must be taken into account when evaluating whether that
behaviour amounted to professional misconduct; but it does not impact on the
standard of review.
[57]
In sum, the Appeal Panel’s decision is reviewed
for reasonableness.
B.
Was the Appeal Panel’s Decision Reasonable?
(1)
The Appeal Panel’s Approach
[58]
To determine whether the Appeal Panel’s decision
was reasonable, i.e. whether it fell within a range of reasonable outcomes, it
is necessary to explore how the Appeal Panel reached its result. In this case,
as is apparent from its reasons, the Appeal Panel first developed an approach
for assessing whether a lawyer’s behaviour crosses the line into professional
misconduct on the basis of incivility. Having done so, it then evaluated
whether Mr. Groia was guilty of professional misconduct.
[59]
The Appeal Panel took a context-specific
approach to evaluating a lawyer’s in-court behaviour. In particular, it
considered whether Mr. Groia’s allegations were made in good faith and had a
reasonable basis. It also identified the frequency and manner in which Mr.
Groia made his submissions and the trial judge’s reaction to Mr. Groia’s
behaviour as relevant considerations.
[60]
Mr. Groia maintains that the Appeal Panel’s
approach led to an unreasonable result. Several interveners join him, pointing
to perceived weaknesses in different aspects of the Appeal Panel’s approach and
urging this Court to adopt their preferred approaches for evaluating a lawyer’s
conduct.
[61]
These arguments can be broadly grouped into four
categories. First, the Appeal Panel’s approach does not appropriately balance
civility and resolute advocacy. Second, it does not provide enough guidance to
lawyers. Third, it does not properly account for the presiding judge’s reaction
to the lawyer’s behaviour and judicial independence. Fourth, it
disproportionately balances the Law Society’s statutory mandate with the
lawyer’s right to free expression.
[62]
For the reasons that follow, I would reject
these submissions. When developing an approach for assessing whether incivility
amounts to professional misconduct, the Appeal Panel recognized the importance
of civility while remaining sensitive to the lawyer’s duty of resolute advocacy
— a duty of particular importance in the criminal context because of the
client’s constitutional right to make full answer and defence. Its
context-specific approach is flexible enough to assess allegedly uncivil
behaviour arising out of the diverse array of situations in which courtroom
lawyers find themselves. At the same time, the Appeal Panel set a reasonably
precise benchmark that instructs lawyers as to the permissible bounds of
ethical courtroom behaviour, articulating a series of factors that ought
generally to be considered when evaluating a lawyer’s conduct and describing
how those factors operate when assessing a lawyer’s behaviour. Finally, the
Appeal Panel’s approach allows law society disciplinary tribunals to
proportionately balance the lawyer’s expressive freedom with its statutory
mandate in any given case.
(a)
The Appeal Panel Recognized the Importance of
Civility
[63]
To begin, when developing its approach, the
Appeal Panel recognized the importance of civility to the legal profession and
the corresponding need to target behaviour that detrimentally affects the
administration of justice and the fairness of a particular proceeding. The duty
to practice with civility has long been embodied in the legal profession’s
collective conscience[2] — and for good reason. Civility has been described as “the glue
that holds the adversary system together, that keeps it from imploding”: Morden
A.C.J.O., “Notes for Convocation Address — Law Society of Upper Canada,
February 22, 2001”, in Law Society of Upper Canada, ed., Plea Negotiations:
Achieving a “Win-Win” Result (2003), at pp. 1-10 to 1-11. Practicing law with
civility brings with it a host of benefits, both personal and to the profession
as a whole. Conversely, incivility is damaging to trial fairness and the
administration of justice in a number of ways.
[64]
First, incivility can prejudice a client’s
cause. Overly aggressive, sarcastic, or demeaning courtroom language may lead
triers of fact, be they judge or jury, to view the lawyer — and therefore the
client’s case — unfavourably. Uncivil communications with opposing counsel can
cause a breakdown in the relationship, eliminating any prospect of settlement
and increasing the client’s legal costs by forcing unnecessary court
proceedings to adjudicate disputes that could have been resolved with a simple
phone call. As one American commentator aptly wrote:
Conduct that may be
characterized as uncivil, abrasive, hostile, or obstructive necessarily impedes
the goal of resolving conflicts rationally, peacefully, and efficiently, in
turn delaying or even denying justice . . . . This mindset eliminates
peaceable dealings and often forces dilatory, inconsiderate tactics that
detract from just resolution.
(K.A. Nagorney, “A Noble
Profession? A Discussion of Civility Among Lawyers” (1999), 12 Geo. J.
Legal Ethics 815, at p. 817)
[65]
Second, incivility is distracting. A lawyer
forced to defend against constant allegations of impropriety will naturally be
less focused on arguing the case. Uncivil behaviour also distracts the triers
of fact by diverting their attention away from the substantive merits of the
case. The trial judge risks becoming preoccupied with policing counsel’s
conduct instead of focusing on the evidence and legal issues: Justice Michael
Code, “Counsel’s Duty of Civility: An Essential Component of Fair Trials and an
Effective Justice System” (2007), 11 Can. Crim. L.R. 97, at p. 105.
[66]
Third, incivility adversely impacts other
justice system participants. Disparaging personal attacks from lawyers —
whether or not they are directed at a witness — can exacerbate the already
stressful task of testifying at trial.
[67]
Finally, incivility can erode public confidence
in the administration of justice — a vital component of an effective justice
system: Valente v. The Queen, [1985] 2 S.C.R. 673, at p. 689.
Inappropriate vitriol, sarcasm and baseless allegations of impropriety in a
courtroom can cause the parties, and the public at large, to question the
reliability of the result: see Felderhof ONCA, at para. 83; Marchand
(Litigation guardian) v. Public General Hospital Society of Chatham (2000),
51 O.R. (3d) 97, at para. 148. Incivility thus diminishes the public’s
perception of the justice system as a fair dispute-resolution and truth-seeking
mechanism.
[68]
The Appeal Panel was alive to the profound
importance of civility in the legal profession when developing its approach. It
recognized that “‘civility’ protects and enhances the administration of
justice” (para. 211), targeting behaviour that could call into question trial
fairness and the public’s perception of the administration of justice (paras.
228 and 230-31).
[69]
Mr. Groia and various interveners argue that the
Appeal Panel should have gone further. Like the Divisional Court, they would
require that before a lawyer can be found guilty of professional misconduct,
the lawyer’s behaviour must bring the administration of justice into disrepute
or impact trial fairness. With respect, I would not give effect to their
arguments. I echo the comments of Cronk J.A. that such a requirement is
“unnecessary and unduly restrictive”: para. 169. The Appeal Panel’s approach
targets conduct that tends to compromise trial fairness and bring the
administration of justice into disrepute, making an explicit requirement
unnecessary. Moreover, uncivil behaviour worthy of sanction may not have a
perceptible impact on the fairness of the particular proceeding. Finally, in my
view, requiring the Law Society to evaluate the fairness of a proceeding would
shift the focus away from the lawyer’s behaviour and inappropriately imbue the
Law Society with a judicial function.
(b)
The Appeal Panel Accounted for the Relationship
Between Civility and Resolute Advocacy
[70]
Second, in developing its approach, the Appeal
Panel was sensitive to the lawyer’s duty of resolute advocacy and the client’s
constitutional right to make full answer and defence. It held that “the word ‘civility’
should not be used to discourage fearless advocacy” (par. 211) and was careful
to create an approach which ensured “that the vicissitudes that confront
courtroom advocates are fairly accounted for so as not to create a chilling
effect on zealous advocacy” (para. 232).
[71]
Although of doubtless importance, the duty to
practice with civility is not a lawyer’s sole ethical mandate. Rather, it
exists in concert with a series of professional obligations that both constrain
and compel a lawyer’s behaviour. The duty of civility must be understood in
light of these other obligations. In particular, standards of civility cannot
compromise the lawyer’s duty of resolute advocacy.
[72]
The importance of resolute advocacy cannot be
understated. It is a vital ingredient in our adversarial justice system — a
system premised on the idea that forceful partisan advocacy facilitates
truth-seeking: see e.g. Phillips v. Ford Motor Co. (1971), 18 D.L.R.
(3d) 641, at p. 661. Moreover, resolute advocacy is a key component of the
lawyer’s commitment to the client’s cause, a principle of fundamental justice
under s. 7 of the Canadian Charter of Rights and Freedoms : Canada
(Attorney General) v. Federation of Law Societies of Canada, 2015 SCC 7,
[2015] 1 S.C.R. 401, at paras. 83-84.
[73]
Resolute advocacy requires lawyers to “raise
fearlessly every issue, advance every argument and ask every question, however
distasteful, that the lawyer thinks will help the client’s case”: Federation of
Law Societies of Canada, Model Code of Professional Conduct (online), r.
5.1-1 commentary 1. This is no small order. Lawyers are regularly called on to
make submissions on behalf of their clients that are unpopular and at times
uncomfortable. These submissions can be met with harsh criticism — from the public,
the bar, and even the court. Lawyers must stand resolute in the face of this
adversity by continuing to advocate on their clients’ behalf, despite popular
opinion to the contrary.
[74]
The duty of resolute advocacy takes on
particular salience in the criminal law context. Criminal defence lawyers are
the final frontier between the accused and the power of the state. As Cory J.
noted in The Inquiry Regarding Thomas Sophonow: The Investigation,
Prosecution and Consideration of Entitlement to Compensation (2001), at p.
53:
It cannot be
forgotten that it is often only the Defence Counsel who stands between the
lynch mob and the accused. Defence Counsel must be courageous, not only in the
face of an outraged and inflamed community, but also, on occasion, the apparent
disapproval of the Court.
[75]
For criminal defence lawyers, fearless advocacy
extends beyond ethical obligations into the realm of constitutional
imperatives. As the intervener the Criminal Lawyers’ Association of Ontario
(“CLAO”) notes, defence lawyers advancing the accused’s right to make full
answer and defence “are frequently required to criticize the way state actors
do their jobs”: Quebec (Director of Criminal and Penal Prosecutions) v.
Jodoin, 2017 SCC 26, [2017] 1 S.C.R. 478, at para. 32; Doré, at
paras. 64-66. These criticisms range from routine Charter applications —
alleging, for example, an unconstitutional search, detention, or arrest — to
serious allegations of prosecutorial misconduct. Defence lawyers must have
sufficient latitude to advance their clients’ right to make full answer and
defence by raising arguments about the propriety of state actors’ conduct
without fear of reprisal.
[76]
In saying this, I should not be taken as
endorsing incivility in the name of resolute advocacy. In this regard, I agree
with both Cronk J.A. and Rosenberg J.A. that civility and resolute advocacy are
not incompatible: see Groia ONCA, at paras. 131-39; Felderhof ONCA,
at paras. 83 and 94. To the contrary, civility is often the most effective form
of advocacy. Nevertheless, when defining incivility and assessing whether a
lawyer’s behaviour crosses the line, care must be taken to set a sufficiently
high threshold that will not chill the kind of fearless advocacy that is at
times necessary to advance a client’s cause. The Appeal Panel recognized the
need to develop an approach that would avoid such a chilling effect.
(c)
The Appeal Panel’s Approach Is Both Flexible and
Precise
[77]
The Appeal Panel developed an approach that is
both flexible and precise. A rigid definition of when incivility amounts to
professional misconduct in the courtroom is neither attainable nor desirable.
Rather, determining whether a lawyer’s behaviour warrants a finding of
professional misconduct must remain a context-specific inquiry that is flexible
enough to assess behaviour arising from the diverse array of situations in
which lawyers find themselves.
[78]
And yet standards of civility must be
articulated with a reasonable degree of precision. An overly vague or
open-ended test for incivility risks eroding resolute advocacy. Prudent lawyers
will steer clear of a blurry boundary to avoid a potential misconduct finding
for advancing arguments that may rightly be critical of other justice system
participants. In contrast, a standard that is reasonably ascertainable gives
lawyers a workable definition which they can use to guide their behaviour. It
also guides law society disciplinary tribunals in their task of determining
whether a lawyer’s behaviour amounts to professional misconduct.
[79]
The Appeal Panel’s approach strikes a
reasonable balance between flexibility and precision. The Appeal Panel
described its approach to assessing whether a lawyer’s uncivil behaviour
warrants professional sanction as “fundamentally contextual and fact specific”,
noting the importance of “consider[ing] the dynamics, complexity and particular
burdens and stakes of the trial or other proceeding”: paras. 7 and 232. By
focussing on the particular factual matrix before it, the Appeal Panel’s
approach is flexible enough to accommodate the diverse array of situations in
which courtroom lawyers find themselves.
[80]
At the same time, the Appeal Panel’s approach is
sufficiently precise to delineate an appropriate boundary past which behaviour
warrants a professional misconduct finding. The Appeal Panel identified a set
of factors that a disciplinary panel ought generally to consider when
evaluating a lawyer’s conduct. It then provided guidance on how those factors
operate when assessing a lawyer’s behaviour. Importantly, as the Appeal Panel recognized,
this list is not closed and the weight assigned to each factor will vary
case-by-case. I turn to those factors now.
(i)
Factors to Consider When Assessing a Lawyer’s
Behaviour
1.
What the Lawyer Said
[81]
First, the Appeal Panel looked to what
the lawyer said. Mr. Groia alleged prosecutorial misconduct throughout Phase
One of the Felderhof trial. As such, the Appeal Panel had to determine when
these kinds of allegations amount to professional misconduct. It concluded that
prosecutorial misconduct allegations, or other challenges to opposing counsel’s
integrity, cross the line into professional misconduct unless they are made in
good faith and have a reasonable basis: A.P. reasons, at paras. 9 and
235. In other words, allegations that are either made in bad faith or
without a reasonable basis amount to professional misconduct.
[82]
Two points about evaluating what the lawyer said
warrant comment. First, I do not read the Appeal Panel’s reasons as
characterizing allegations made in bad faith or without a reasonable basis as a
stand-alone “test” for professional misconduct. When the reasons are read as a
whole, it is apparent that whether or not allegations of prosecutorial
misconduct are made in bad faith or without a reasonable basis is simply one
piece of the “fundamentally contextual and fact specific” analysis for
determining whether a lawyer’s behaviour amounts to professional misconduct:
A.P. reasons, at paras. 7 and 232.
[83]
To be clear, in some circumstances, bad faith
allegations or allegations that lack a reasonable basis may, on their own,
warrant a finding of professional misconduct. However, a law society
disciplinary tribunal must always take into account the full panoply of
contextual factors particular to an individual case before making that
determination. A contrary interpretation would render redundant any assessment
of the frequency or manner in which the allegations were made and the presiding
judge’s reaction — factors which the Appeal Panel considered relevant to the
overall inquiry.
[84]
Second, it was open to the Appeal Panel to
conclude that allegations of prosecutorial misconduct or other challenges to
opposing counsel’s integrity must both be made in good faith and have
a reasonable basis. Various interveners take issue with this standard. The
British Columbia Civil Liberties Association argues that sanctioning a lawyer
for making good faith allegations without a reasonable basis punishes the
lawyer for simply being mistaken. The CLAO agrees, submitting that the Appeal
Panel’s standard does not give defence counsel the necessary latitude to
fearlessly advance arguments that turn out to be incorrect. Accordingly, only
allegations made in bad faith should warrant a finding of professional
misconduct.
[85]
I share the interveners’ concerns that law
societies should not sanction lawyers for sincerely held but mistaken legal
positions or questionable litigation strategies. Nonetheless, in my view, the
Appeal Panel’s standard withstands scrutiny. Allegations that impugn opposing
counsel’s integrity must not be made lightly. A reputation for integrity is a
lawyer’s most important professional asset. It generally takes a long time to
build up and it can be lost overnight. Courts and legal commentators have
emphasized the importance of a lawyer’s reputation. In Hill v. Church of
Scientology of Toronto, [1995] 2 S.C.R. 1130, at para. 118, Cory J. put it
this way:
The reputation of a lawyer is of
paramount importance to clients, to other members of the profession, and to the
judiciary. A lawyer’s practice is founded and maintained upon the basis of a
good reputation for professional integrity and trustworthiness. It is the
cornerstone of a lawyer’s professional life. Even if endowed with outstanding
talent and indefatigable diligence, a lawyer cannot survive without a good
reputation.
[86]
Maintaining a reputation for practicing with
integrity is a lifelong challenge. Once sullied, a lawyer’s reputation may
never be fully restored. As such, allegations of prosecutorial misconduct must
have a reasonable foundation. I agree with the Appeal Panel that anything less
“gives too much licence to irresponsible counsel with sincere but nevertheless
unsupportable suspicions”: para. 235. The consequences for the opposing
lawyer’s reputation are simply too severe to require anything less than a
reasonable basis for allegations impugning his or her integrity.
[87]
Finally, the Appeal Panel’s reasonable basis
requirement will not chill resolute advocacy. A lawyer must establish a “proper
evidentiary foundation” before alleging abuse of process arising from
prosecutorial misconduct: R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R.
167, at paras. 52-55. Absent a proper foundation, an abuse of process
motion will be summarily dismissed: R. v. Cody, 2017 SCC 31, [2017] 1
S.C.R. 659, at para. 38. Unreasonable allegations, therefore, do nothing to
advance the client’s case. An ethical standard prohibiting such allegations
does not impair resolute advocacy. To be clear, not all defence action
summarily dismissed under Cody will warrant professional sanction. On
the contrary, defence action a court deems illegitimate may well fall short of
professional misconduct: Cody, at paras. 32-35.
[88]
That said, the reasonable basis requirement is
not an exacting standard. I understand the Appeal Panel to have meant that allegations
made without a reasonable basis are those that are speculative or entirely
lacking a factual foundation. Crucially, as the Appeal Panel noted,
allegations do not lack a reasonable basis simply because they are based on
legal error: at para. 280. In other words, it is not professional misconduct to
challenge opposing counsel’s integrity based on a sincerely held but incorrect
legal position so long as the challenge has a sufficient factual foundation,
such that if the legal position were correct, the challenge would be warranted.
[89]
Nor is it professional misconduct to advance a
novel legal argument that is ultimately rejected by the court. Many legal
principles we now consider foundational were once controversial ideas that were
fearlessly raised by lawyers. Such innovative advocacy ought to be encouraged —
not stymied by the threat of being labelled, after the fact, as “unreasonable”.
[90]
In my view, there are two reasons why law
societies cannot use a lawyer’s legal errors to conclude that his or her allegations
lack a reasonable basis. First, a finding of professional misconduct against a
lawyer can itself be damaging to that lawyer’s reputation. Branding a lawyer as
uncivil for nothing more than advancing good faith allegations of impropriety
that stem from a sincerely held legal mistake is a highly excessive and
unwarranted response.
[91]
Second, inquiring into the legal merit of a
lawyer’s position to conclude that his or her allegations lack a reasonable
basis would discourage lawyers from raising well-founded allegations, impairing
the lawyer’s duty of resolute advocacy. Prosecutorial abuse of process is
extraordinarily serious. It impairs trial fairness and compromises the
integrity of the justice system: Anderson, at paras. 49-50; R. v.
O’Connor, [1995] 4 S.C.R. 411, at paras. 62-63. Defence lawyers play an
integral role in preventing these dire consequences and holding other justice
system participants accountable by raising reasonable allegations. Finding a
lawyer guilty of professional misconduct on the basis of incivility for making
an abuse of process argument that is based on a sincerely held but mistaken
legal position discourages lawyers from raising these allegations, frustrating
the duty of resolute advocacy and the client’s right to make full answer and
defence.
[92]
My colleagues in dissent interpret the
“reasonable basis” requirement differently. In their view, the Appeal
Panel concluded that where allegations of impropriety made against opposing
counsel stem from a mistake of law, the mistake must be both honest and
reasonable. And if the Appeal Panel determines that the mistake of law is
unreasonable, even though it is honestly held, then the allegations of
impropriety will not be reasonably based and can therefore lead to a finding of
professional misconduct on account of incivility: Reasons of Karakatsanis J. et
al., at paras. 193-96. In so concluding, they contend that my
interpretation of the “reasonable basis” requirement — that allegations of
impropriety must have a factual foundation, and not be based on innuendo or
speculation — immunizes egregious legal errors from review, “effectively
dispossess[ing] the law societies of their regulatory authority anytime a
lawyer can cloak his accusations in a subjective legal belief”: reasons of Karakatsanis
J. et al., at para. 221.
[93]
Respectfully, my colleagues’ concerns are
misplaced. When a lawyer alleges prosecutorial misconduct based on a legal
mistake, law societies are perfectly entitled to look to the reasonableness of
the mistake when assessing whether it is sincerely held, and hence, whether the
allegations were made in good faith. Looking to the reasonableness of a mistake
is a well-established tool to help assess its sincerity: see e.g., Pappajohn
v. The Queen, [1980] 2 S.C.R. 120, at p. 156, per Dickson J.,
dissenting, but not on this point; R. v. Bulmer, [1987] 1 S.C.R. 782, at
p. 792; R. v. Moreau (1986), 26 C.C.C. (3d) 359 (Ont. C.A.), at pp.
374-75. The more egregious the legal mistake, the less likely it will have been
sincerely held, making it less likely the allegation will have been made in
good faith. And if the law society concludes that the allegation was not made
in good faith, the second question — whether there was a reasonable basis for
the allegation — falls away.
[94]
I pause here to note that there is good reason
why a law society can look to the reasonableness of a legal mistake when
assessing whether allegations of impropriety are made in good faith, but not
when assessing whether they are reasonably based. The “good faith” inquiry asks
what the lawyer actually believed when making the allegations. The
reasonableness of the lawyer’s legal mistake is one piece of circumstantial
evidence that may help a law society in this exercise. However, it is not
determinative. Even the most unreasonable mistakes can be sincerely held.
[95]
In contrast, the “reasonable basis” inquiry
requires a law society to look beyond what the lawyer believed, and examine the
foundation underpinning the allegations. Looking at the reasonableness of a
lawyer’s legal position at this stage would, in effect, impose a mandatory
minimum standard of legal competence in the incivility context. In other words,
it would allow a law society to find a lawyer guilty of professional misconduct
on the basis of incivility for something the lawyer, in the law society’s
opinion, ought to have known or ought to have done. And, as I
have already explained, this would risk unjustifiably tarnishing a lawyer’s
reputation and chilling resolute advocacy.
[96]
That, however, does not end the matter. As my
colleagues correctly observe, “the Law Society rules govern civility and
competence”: reasons of Karakatsanis J. et al., at para. 193 (emphasis in
original). A lawyer who bases allegations on “outrageous” or “egregious” legal
errors may be incompetent. My point is simply that he or she should not be
punished for incivility on that basis alone. As such, any concern that
law societies are “effectively dispossess[ed]” of their regulatory authority
misstates my position.
[97]
To conclude, I would not give effect to Mr.
Groia’s and the interveners’ submissions criticizing how the Appeal Panel
evaluated what the lawyer said. The Appeal Panel considered what the lawyer
said to be an important contextual factor. Allegations of professional
misconduct or other challenges to opposing counsel’s integrity must be made in
good faith and have a reasonable basis. Although a reasonable basis is not a
high bar, I see no basis for interfering with the Appeal Panel’s conclusion
that it is necessary to protect against speculative or baseless allegations.
2.
The Manner and Frequency of the Lawyer’s
Behaviour
[98]
The Appeal Panel also considered the frequency
of what was said and the manner in which it was said to be relevant factors. A
single outburst would not usually attract sanction. In contrast, repetitive
attacks on opposing counsel would be more likely to cross the line into
professional misconduct. The Appeal Panel also found that challenges to
opposing counsel’s integrity made in a “repetitive stream of invective”, or
with a “sarcastic and biting” tone were inappropriate. Finally, the Appeal
Panel held that whether the lawyer was provoked was a relevant factor: paras.
233 and 236.
[99]
Considering the manner and frequency of the
lawyer’s behaviour was reasonable. Trials are often hard fought. The stakes are
high — especially so in a criminal trial where the accused faces a loss of
liberty. Emotions can sometimes get the better of even the most stoic
litigators. Punishing a lawyer for “a few ill-chosen, sarcastic, or even nasty
comments” (A.P. reasons, at para. 7) ignores these realities.
[100]
This does not mean that a solitary bout of
incivility is beyond reproach. A single, scathing attack on the integrity of
another justice system participant can and has warranted disciplinary action:
see e.g., Doré; Histed v. Law Society of Manitoba, 2007 MBCA 150,
225 Man. R. (2d) 74; Law Society of Upper Canada v. Wagman, 2008 ONLSAP
14. Be that as it may, it was well within the Appeal Panel’s purview to
conclude that, as a general rule, repetitive personal attacks and those made
using demeaning, sarcastic, or otherwise inappropriate language are more likely
to warrant disciplinary action.
[101]
One final point. When considering the manner and
frequency of the lawyer’s behaviour, it must be remembered that challenges to
another lawyer’s integrity are, by their very nature, personal attacks. They
often involve allegations that the lawyer has deliberately flouted his or her
ethical or professional duties. Strong language that, in other contexts, might
well be viewed as rude and insulting will regularly be necessary to bring
forward allegations of prosecutorial misconduct or other challenges to a
lawyer’s integrity. Care must be taken not to conflate the strong language
necessary to challenge another lawyer’s integrity with the type of
communications that warrant a professional misconduct finding.
3.
The Trial Judge’s Reaction
[102]
The third factor the Appeal Panel identified is
the presiding judge’s reaction to the lawyer’s behaviour: para. 225. I agree
that when the impugned behaviour occurs in a courtroom, what, if anything, the
judge does about it becomes relevant. Unlike the Law Society, the presiding
judge observes the lawyer’s behaviour firsthand. This offers the judge a
comparatively advantageous position to evaluate the lawyer’s conduct relative
to the Law Society, who only enters the equation once all is said and done. As
Brown J.A. insightfully explained:
By its nature, a professional
discipline proceeding is an exercise in the retrospective examination of
counsel’s conduct by those who were not present when the conduct occurred and
who lack the ability to recreate, with precision and certainty, exactly what
took place. A discipline review is largely transcript-based, restricting the
reviewer’s ability to understand the sense and nuance of the moment.
Retrospective transcript-based reviews contain inherent limitations which can
produce an artificial understanding of what took place in the courtroom, and
which risk turning the review into an exercise in Monday-morning
quarterbacking.
(Groia ONCA, at par.
318)
[103]
These observations underscore the importance of
considering the presiding judge’s response to the lawyer’s conduct. The
question then becomes: how important is that response? Mr. Groia would treat the
presiding judge’s reaction as near-conclusive. He argues that law societies
should rarely, if ever, initiate disciplinary proceedings if the presiding
judge took no issue with the lawyer’s behaviour. This is because allowing law
societies to second-guess the presiding judge on the scope of acceptable
courtroom conduct erodes judicial independence.
[104]
In my view, Mr. Groia’s restrictive approach is
inappropriate for a number of reasons. First, unlike the presiding judge, law
societies are not tasked with maintaining the fairness of any particular
proceeding. The presiding judge has a responsibility to intervene when the
fairness of the trial is at stake: Brouillard v. The Queen, [1985] 1
S.C.R. 39, at p. 44; R. v. Henderson (1999), 44 O.R. (3d) 628 (C.A.), at
p. 641. This duty includes controlling uncivil behaviour that risks
undermining the fairness — and the appearance of fairness — of the proceeding: Marchand,
at para. 148. In contrast, by setting and enforcing standards of civility, law
societies foster fairness and cultivate public confidence in the administration
of justice on a profession-wide level. Preventing law societies from
supervising courtroom behaviour absent a trial judge’s intervention frustrates
these functions.
[105]
Second, as the Appeal Panel recognized, “there
may be many reasons why a trial judge may choose to remain relatively passive
in the face of one or both counsels’ courtroom incivility”: para. 225. For
instance, as Campbell J. pointed out, judicial intervention “might simply
excite further provocation” on the lawyer’s part, thereby frustrating the goal
of maintaining an orderly, fair proceeding: Felderhof ONSC, at para.
284. Judges may also be reasonably concerned about the appearance of
impartiality — especially in a jury trial, where reprimanding counsel in the
jury’s presence could conceivably prejudice that lawyer in the jury’s eyes. In
these situations, the trial judge’s silence is not a tacit approval of the
lawyer’s behaviour, but rather a conscious decision taken to protect trial
fairness.
[106]
Furthermore, in some cases the trial judge’s
decision to remain passive may prove wrong and give rise to an unfair trial. It
would be illogical to bar the Law Society from reviewing a lawyer’s behaviour
based on a trial judge’s error.
[107]
Third, behaviour that the presiding judge deems
inappropriate may not rise to the level of professional misconduct. This Court
stressed in Cody that courts will no longer tolerate “illegitimate”
defence action — including baseless arguments and the way in which they are
presented. However, as indicated, improper defence behaviour is not necessarily
professional misconduct, be it a function of incivility or incompetence: Cody,
at paras. 32-35. The Law Society must therefore be careful not to place too
much weight on a judge’s criticism of defence behaviour.
[108]
Fourth, as I explain above at paras. 54-55, the
Law Society’s decision to discipline a lawyer in no way impairs the presiding
judge’s ability to control his or her courtroom. Just as the Law Society’s disciplinary
decision is not conditional on the judge’s response, the judge remains free to
set boundaries of appropriate courtroom behaviour irrespective of any law
society standards of civility: see Jodoin, at para. 23.
[109]
It follows that the judge’s reaction is not
conclusive of the propriety of the lawyer’s conduct. Rather, as the Appeal
Panel concluded, it is simply one piece of the contextual analysis. Its weight
will vary depending on the circumstances of the case.
[110]
Part and parcel of the presiding judge’s response
is how the lawyer modified his or her behaviour thereafter. The lawyer who
crosses the line, but pays heed to the judge’s direction and behaves
appropriately from then on is less likely to have engaged in professional
misconduct than the same lawyer who continues to behave inappropriately despite
the judge’s instructions.
(d)
The Appeal Panel’s Approach Allows for a
Proportionate Balancing of Lawyers’ Expressive Rights and the Law Society’s
Statutory Mandate
[111]
An administrative decision that engages the Charter
by limiting its protections will only be reasonable if it reflects a
proportionate balancing of the Charter protections at play with the
decision maker’s statutory mandate: Doré, at para. 57; Loyola High
School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 S.C.R. 613, at
para. 39. This Court explained in Loyola that a “proportionate balancing
is one that gives effect, as fully as possible to the Charter protections
at stake given the particular statutory mandate”: para. 39.
[112]
Law Society decisions that discipline lawyers
for what they say may engage lawyers’ expressive freedom under s. 2 (b)
of the Charter : Doré, at paras. 59, 63 and 65-68. This is true
regardless of whether the impugned speech occurs inside or outside a courtroom.
Courtroom lawyers are engaged in expressive activity, the method and location
of the speech do not remove the expressive activity from the scope of protected
expression, and Law Society decisions sanctioning lawyers for what they say in
the courtroom have the effect of restricting their expression: see Irwin Toy
Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, at p. 978; Montréal
(City) v. 2952-1366 Québec inc., 2005 SCC 62, [2005] 3 S.C.R. 141, at
paras. 56 and 82.
[113]
As such, a particular professional misconduct finding
that engages a lawyer’s expressive freedom will only be reasonable if it
reflects a proportionate balancing of the law society’s statutory objective
with the lawyer’s expressive freedom. Similarly, an approach to assessing
whether a lawyer’s uncivil communications warrant law society discipline must
allow for such a proportionate balancing to occur.
[114]
Under its statutory mandate, the Law Society has
a duty to advance the public interest, the cause of justice and the rule of law
by regulating the legal profession: Law Society Act, s. 4.2.
Disciplinary tribunals fulfill an integral subset of this function by setting
and enforcing standards of professional conduct — in this case civility.
Performing this mandate can engage lawyers’ expressive rights under the Charter :
Doré, at para. 63.
[115]
Allowing lawyers to freely express themselves
serves an important function in our legal system. As Steel J.A. noted in Histed,
at para. 71:
The lawyer, as an intimate part of the
legal system, plays a pivotal role in ensuring the accountability and
transparency of the judiciary. To play that role effectively, he/she must feel
free to act and speak without inhibition and with courage when the
circumstances demand it.
At issue in Histed was
a disciplinary decision resulting from a lawyer’s criticism of a judge. Steel
J.A.’s comments were thus restricted to critical remarks directed at the
judiciary. I would go further and add that lawyers play an integral role in
holding all justice system participants accountable. Reasonable criticism
enhances the transparency and fairness of the system as a whole, thereby
serving the interests of justice. Overemphasizing civility has the potential to
thwart this good by chilling well-founded criticism: A. Woolley, “Does Civility
Matter” (2008), 46 Osgoode Hall L.J., 175, at p. 180. Proportionately
balancing lawyers’ expressive rights, therefore, “may involve disciplinary
bodies tolerating a degree of discordant criticism”: Doré, at para. 65.
[116]
When the impugned behaviour occurs in a
courtroom, lawyers’ expressive freedom takes on additional significance. In
that arena, the lawyer’s primary function is to resolutely advocate on his or
her client’s behalf. As I discuss above at paras. 74-75, resolute advocacy in
the criminal context allows the client to meaningfully exercise his or her
constitutional right to make full answer and defence. Law society tribunals
must account for this unique aspect of lawyers’ expressive rights when arriving
at a disciplinary decision arising out of in-court behaviour.
[117]
That said, speech is not sacrosanct simply
because it is uttered by a lawyer. Certain communications will be far removed
from the core values s. 2 (b) seeks to protect: the search for truth and the
common good: R. v. Keegstra, [1990] 3 S.C.R. 697, at pp. 762 and 765.
The protection afforded to expressive freedom diminishes the further the speech
lies from the core values of s. 2 (b): Keegstra, at pp. 760-62; RJR-MacDonald
Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, at paras. 72-73. As
such, a finding of professional misconduct is more likely to represent a
proportionate balance of the Law Society’s statutory objective with the
lawyer’s expressive rights where the impugned speech lies far from the core
values of lawyers’ expressive freedom.
[118]
The flexibility built into the Appeal Panel’s
context-specific approach to assessing a lawyer’s behaviour allows for a
proportionate balancing in any given case. Considering the unique circumstances
in each case — such as what the lawyer said, the context in which he or she
said it and the reason it was said — enables law society disciplinary tribunals
to accurately gauge the value of the impugned speech. This, in turn, allows for
a decision, both with respect to a finding of professional misconduct and any
penalty imposed, that reflects a proportionate balancing of the lawyer’s
expressive rights and the Law Society’s statutory mandate.
[119]
In addition, the Appeal Panel’s reasonable basis
standard allows for a proportionate balancing between expressive freedom and
the Law Society’s statutory mandate. Allegations impugning opposing counsel’s
integrity that lack a reasonable basis lie far from the core values
underpinning lawyers’ expressive rights. Reasonable criticism advances the
interests of justice by holding other players accountable. Unreasonable attacks
do quite the opposite. As I have explained at paras. 63-67, such attacks frustrate
the interests of justice by undermining trial fairness and public confidence in
the justice system. A decision finding a lawyer guilty of professional
misconduct for launching unreasonable allegations would therefore be likely to
represent a proportionate balancing of the Law Society’s mandate and the
lawyer’s expressive rights.
[120]
In contrast, sanctioning a lawyer for good
faith, reasonably based allegations that are grounded in legal error does not
reflect a proportionate balancing. Advancing good faith, reasonable allegations
— even those based on legal error — helps maintain the integrity of the
justice system by holding other participants accountable. Well-founded
arguments exposing misconduct on the part of opposing counsel thus lie close to
the core of the s. 2 (b) values underpinning a lawyer’s expressive
freedom. Discouraging lawyers from bringing forward such allegations does
nothing to further the Law Society’s statutory mandate of advancing the cause
of justice and the rule of law. If anything, silencing lawyers in this manner
undercuts the rule of law and the cause of justice by making it more likely
that misconduct will go unchecked.
(e)
Conclusion
[121]
In sum, I would not give effect to Mr. Groia’s
and the interveners’ challenges to the Appeal Panel’s approach to incivility,
and in particular, when a lawyer’s courtroom conduct warrants a finding of
professional misconduct. The Appeal Panel appreciated the need to guard against
the consequences of incivility, and remained sensitive to the lawyer’s duty of
resolute advocacy. Its contextual analysis accommodates the diversity of modern
legal practice. At the same time, the Appeal Panel articulated a series of
factors — what the lawyer said, the manner and frequency in which it was said,
and the presiding judge’s reaction to the lawyer’s behaviour — and
explained how those factors operate in a way that is sufficiently precise to
guide lawyers’ conduct and instruct disciplinary tribunals in future cases.
Finally, the Appeal Panel’s approach allows for a proportionate balancing of
lawyers’ expressive rights and the Law Society’s statutory mandate.
(2)
Application to Mr. Groia’s Case
[122]
While I take no issue with the Appeal Panel’s
approach, I am respectfully of the view that the Appeal Panel unreasonably
found Mr. Groia guilty of professional misconduct. In assessing “what” Mr.
Groia said, the Appeal Panel reiterated that misconduct allegations or other
challenges to opposing counsel’s integrity cross the line into professional
misconduct unless they are made in good faith and have a reasonable basis. The
Appeal Panel accepted that Mr. Groia’s allegations of misconduct were made in
good faith. It based its finding of professional misconduct primarily on the
fact that his allegations lacked a reasonable basis. However, contrary to its
own approach, the Appeal Panel used Mr. Groia’s sincerely held but erroneous
legal beliefs to reach this conclusion — one which, as I have explained above
at paras. 88-91, cannot be reasonable.
[123]
Once the allegations of impropriety — what Mr.
Groia said — are no longer in the mix, it becomes apparent that the other
factors in this case cannot reasonably support a finding of professional
misconduct against him. As I will explain, the frequency of Mr. Groia’s
allegations was, to some extent, a product of the uncertainty surrounding the
manner in which abuse of process allegations should be raised — a factor the
Appeal Panel did not consider.
[124]
Moreover, the trial judge took a largely hands
off approach and did not direct Mr. Groia as to how he should be bringing his
allegations. Eventually, the trial judge did intervene, albeit quite late in
the day, and he instructed Mr. Groia not to keep repeating the same allegations
over and over again, but to simply register his objection. In response, Mr.
Groia complied, albeit with the odd slip. And when the reviewing courts
admonished Mr. Groia for his behaviour during Phase One of the Felderhof trial,
Phase Two proceeded entirely without incident. Again, the Appeal Panel did not
factor the trial judge and reviewing courts’ response to Mr. Groia’s behaviour
and how Mr. Groia modified his conduct thereafter into its analysis.
[125]
Taking these factors into account, I am
respectfully of the view that there is only one reasonable outcome in this
matter: a finding that Mr. Groia did not engage in professional misconduct on
account of incivility.
(a)
The Appeal Panel Used Mr. Groia’s Mistaken Legal
Beliefs to Conclude That His Allegations Lacked a Reasonable Basis
[126]
The Appeal Panel acknowledged that submissions
made on the basis of a sincerely held but erroneous legal belief, cannot ground
a finding of professional misconduct. It accepted that in making his
allegations of impropriety against the OSC prosecutors, “Mr. Groia was not
deliberately misrepresenting the law and was not ill-motivated”: para. 332.
That said, the Appeal Panel used Mr. Groia’s legal errors to conclude that he
had no reasonable basis for his repeated allegations of prosecutorial
impropriety.
[127]
With respect, such a finding was not reasonably
open to the Appeal Panel. Mr. Groia’s legal errors, coupled with the OSC
prosecutors’ conduct, provided a reasonable basis for his allegations. Had Mr.
Groia been right in law, his abuse allegations against the OSC prosecutors
would almost certainly have been substantiated.
[128]
Recall that the allegations arose during
disputes about disclosure and the admissibility of documentary evidence. Mr.
Groia argued that the prosecutors were using a “conviction filter” to deliberately
undermine the fairness of Mr. Felderhof’s trial by failing to tender, as part
of the OSC’s case, any relevant, authentic document of Mr. Groia’s choosing. He
launched further allegations of impropriety when the prosecutors objected to
his attempts to introduce documents through a witness that had neither seen nor
authored them. His beliefs in this regard were fuelled, in part, by comments
made by Mr. Naster during the first disclosure motion brought by Mr. Groia,
early on in the Felderhof proceedings. They were also supported, in part, by
the trial judge’s rulings against the OSC on disclosure issues and his
rejection of the OSC’s request for an omnibus ruling on the admissibility of
all documents.
[129]
During the first disclosure motion brought by Mr.
Groia, Mr. Naster submitted to the court that he had “an obligation as a
prosecutor to ensure that all relevant materials are placed before [the trial
judge]” and that he was “duty-bound” to place relevant materials before the
court. While Mr. Naster was referring to his disclosure obligations, his
statements lent credence to Mr. Groia’s sincerely held but mistaken belief that
the prosecution was legally required to introduce all relevant documents
through its own witnesses, and that the OSC was acting improperly in refusing
to do so.
[130]
In its reasons, the Appeal Panel was careful to
point out that it was not concluding that Mr. Groia’s allegations lacked
a reasonable basis because of his sincerely held but mistaken legal beliefs. It
stated, at para. 280:
Our concern
about the submissions quoted above is not merely that Mr. Groia was making
incorrect legal submissions; that, of course, is not a basis for a finding
of professional misconduct. [Emphasis added.]
The Law Society confirmed its
position in the oral hearing before this Court, acknowledging that “it is not
professional misconduct to make an erroneous submission as to the law”.
[131]
However, as the following extracts from the
Appeal Panel’s reasons show, it did precisely what it professed it should not do.
Specifically, it repeatedly used Mr. Groia’s sincerely held but mistaken legal
beliefs to ground its conclusion that Mr. Groia’s allegations lacked a
reasonable foundation. For example, it reasoned:
[Mr.
Groia’s] submissions, in our view, directly attack the integrity of the
prosecutors, by alleging that they cannot be relied upon to keep their ‘word’
and are lazy and incompetent . . . . Further, they have no factual foundation. As
a matter of the law of evidence that Mr. Groia ought to have known, Mr. Naster
was perfectly entitled to object to Mr. Groia putting documents to a witness
notwithstanding that the witness could not identify them and suggesting that
they be marked as exhibits.
. . .
.
. . The OSC was taking strict but nevertheless principled positions on
admissibility which were consistent with the law of evidence. Mr. Naster
was acting in a responsible fashion. In short, there was nothing to justify
Mr. Groia’s aggressive personal attack on the prosecutors’ good faith and
integrity. His submissions regarding the ‘conviction filter’ not only
were wrong in law but did not have a reasonable basis.
. . .
In
our view, there was no basis for such a suggestion. In fact, Mr. Naster’s
submissions were correct in law and it was Mr. Groia who made erroneous and
unreasonable submissions on the law of evidence. Mr. Groia’s comments
about the prosecutor on this occasion were insulting and directly impugned his
integrity.
. . .
. .
. we conclude that Mr. Groia had no reasonable basis on which to attack either
the integrity of the prosecutors or their motives. The prosecutors had not
promised that they would introduce all relevant documents, regardless of the
rules of evidence. They were under no obligation to call evidence favourable
to the defence. They had not resiled from their promises. Their
positions on evidentiary issues were not improper and were often correct.
[Emphasis added; paras. 285, 295, 312 and 324.]
[132]
In each of these passages, the Appeal Panel
concluded that Mr. Groia’s allegations lacked a reasonable basis because the
OSC prosecutors were right in law. Put another way, the Appeal Panel concluded
that Mr. Groia’s allegations lacked a reasonable basis because he was wrong in
law. This was unreasonable. As I have explained, allegations of prosecutorial
misconduct based on a sincerely held but mistaken legal belief will be
reasonably based as long as they have a sufficient factual foundation.
The question for incivility purposes is not whether Mr. Groia was right or
wrong on the law. Rather, the question is whether, based on his understanding
of the law, his allegations of prosecutorial misconduct, which the Appeal Panel
found were made in good faith, had a factual foundation. In this case, they
did.
[133]
As indicated, had Mr. Groia’s views on the role
of the prosecutor and the law of evidence been correct, he would have been
justified in alleging abuse of process. His submissions regarding professional
misconduct would not only have had a reasonable basis; they may well have been
accepted. The prosecution repeatedly and intentionally failed to tender all
relevant documents, despite Mr. Groia’s repeated requests. It also objected to
Mr. Groia presenting any relevant document of his choosing to a Crown witness.
Viewed this way, it is apparent that Mr. Groia’s allegations, based as they
were on his sincerely held but mistaken legal beliefs, had ample factual
foundation.
[134]
I appreciate that the Appeal Panel also found
that Mr. Groia’s allegations had no factual foundation because, contrary to Mr.
Groia’s understanding, “the prosecutors had not promised that they would
introduce all relevant documents, regardless of the rules of evidence”: para.
324. This contributed to the Appeal Panel’s finding that Mr. Groia’s
allegations lacked a reasonable basis. Respectfully, however, that conclusion
was not reasonably open to the Appeal Panel.
[135]
Mr. Groia’s understanding of what the OSC
prosecutors said must be assessed in light of his sincerely held but mistaken
legal beliefs. This is because failing to appreciate how Mr. Groia’s legal
mistakes coloured his understanding of the facts effectively allowed the Appeal
Panel to use those legal mistakes to find that his allegations lacked a
reasonable basis, contrary to its own approach.
[136]
As discussed, Mr. Groia mistakenly believed that
the prosecution was legally required to introduce all relevant documents
through its own witnesses. It is therefore understandable that he would
interpret Mr. Naster’s submission that he was “duty-bound” to place all
relevant documents before the court as a promise to tender those documents.
This is especially so given the trial judge’s failure to correct Mr. Groia’s
mistaken legal positions, a point I discuss in greater detail below. It was
unreasonable to conclude that Mr. Groia’s assertions that the OSC was reneging
on its promises lacked factual foundation. They were based on an ambiguous
statement that Mr. Groia reasonably interpreted as a promise because of his
erroneous understanding of the law of evidence.
[137]
In this regard, it is important to note that the
Appeal Panel would normally be in a position to consider the reasonableness of
the lawyer’s legal beliefs — in this case, Mr. Groia’s erroneous understanding
of the role of the prosecutor and the law of evidence — and conclude that they
were not sincerely held. However, that finding was not open to the Appeal Panel
here. In view of the fact that it did not hear Mr. Groia testify, the Appeal
Panel assumed that his legal mistakes were sincerely held, and therefore that
his allegations of prosecutorial misconduct were made in good faith: para. 238.
[138]
In short, Mr. Groia’s legal errors, coupled with
how the OSC prosecutors conducted themselves, provided the reasonable
basis for his allegations. Based on its own findings, including that Mr.
Groia’s allegations were made in good faith, it was not reasonably open to the
Appeal Panel to conclude that Mr. Groia was guilty of professional misconduct
on account of incivility. On its own approach, his allegations were made in
good faith and reasonably based.
[139]
My colleagues in dissent accept that the Appeal
Panel “considered . . . the . . . legal underpinnings of Mr. Groia’s claims to
determine whether they had a reasonable basis”: reasons of Karakatsanis J. et
al., at para. 191. In their view, it was open to the Appeal Panel to do so.
[140]
Respectfully, I cannot agree. Allowing the
Appeal Panel to consider the legal underpinnings of a lawyer’s allegations
would allow it to find a lawyer guilty of professional misconduct for nothing
more than making good faith allegations of impropriety that stem from a
sincerely held legal mistake. As I have explained at paras. 88-91, such a
finding is unreasonable. It does not account for Mr. Groia’s duty of resolute
advocacy — a duty of particular importance in this case given its impact on his
client’s right to make full answer and defence. Mr. Groia was both entitled and
bound to protect his client’s rights by raising reasonably based, good faith
arguments about the propriety of the OSC’s conduct — even though those
arguments turned out to be legally incorrect. Nor does such a finding reflect a
proportionate balancing of the lawyer’s expressive rights and the Law Society’s
statutory objective of advancing the cause of justice and rule of law by
setting and enforcing standards of civility (see para. 121).
[141]
In the end, what Mr. Groia said — his
allegations impugning the OSC prosecutors’ integrity — should not have been
used to ground a finding of professional misconduct against him. The Appeal Panel
unreasonably concluded otherwise.
(b)
The Other Contextual Factors Cannot Reasonably
Support a Finding of Professional Misconduct
[142]
The other contextual factors in this case cannot
reasonably ground a finding of professional misconduct against Mr. Groia. The
frequency of Mr. Groia’s allegations, the presiding judge’s response, and how
Mr. Groia modified his behaviour in response to the directions of the presiding
judge and the reviewing courts all suggest that Mr. Groia’s behaviour during
Phase One of the Felderhof trial was not worthy of professional sanction. The
manner in which Mr. Groia raised his allegations was inappropriate. But that
cannot, in the circumstances of this case, reasonably support a finding of
professional misconduct.
(i)
The Evolving Law of Abuse of Process Affected
the Frequency of Mr. Groia’s behaviour
[143]
When Phase One of the Felderhof trial took
place, uncertainty surrounded how allegations of abuse of process should be
brought forward. Specifically, prior to Rosenberg J.A.’s decision dismissing
the OSC’s appeal of its judicial review application, it was not at all clear
that defence counsel who wished to raise abuse of process should refrain from
repeating their allegations throughout the trial but wait instead until the end
of trial to bring a motion. Given this procedural uncertainty — uncertainty
that the Appeal Panel did not account for — the frequency of Mr. Groia’s
allegations was understandable.
[144]
This Court instructed that an abuse of process
motion should typically be brought at the end of trial: R. v. La, [1997]
2 S.C.R. 680, at para. 27; see also R. v. Clement (2002), 166 C.C.C.
(3d) 219 (Ont. C.A.), at para. 14. The Court reasoned that deciding the abuse
motion at the end of the proceeding gives the trial judge a full evidentiary record
to assess the prejudice caused by the abusive conduct and tailor an appropriate
remedy. What remained unclear was the manner in which counsel was entitled to
raise abuse of process arguments. Could these allegations be made repeatedly
throughout the trial? Or must a lawyer hold off in raising them until the end
of the trial during an abuse of process motion?
[145]
Mr. Groia opted for the former. By repeatedly
accusing the prosecutors of the same deliberate wrongdoing, Mr. Groia was
laying the evidentiary groundwork for an abuse of process motion he intended to
bring at the end of trial. He was also putting the OSC “on notice” of his
intention to bring the motion. This approach was improper. To be sure,
prosecutors are entitled to notice that the defence believes their conduct is
improper and will be bringing an abuse of process motion at the end of the
proceeding. But defence counsel is not entitled to repeatedly make the same
allegations of deliberate wrongdoing outside of that motion. Accordingly, the trial
judge did not have to listen to the same allegations, made over and over again
by Mr. Groia. Indeed, he should have acted sooner to curb them: see Felderhof
ONSC, at para. 93.
[146]
But hindsight is 20/20. The frequency of Mr.
Groia’s abuse allegations must be evaluated based on the state of the law when
he made them. The Appeal Panel failed to account for the uncertainty
surrounding the proper approach to raising abuse of process arguments —
uncertainty that was only clarified by Rosenberg J.A. in his reasons dismissing
the OSC’s appeal of its judicial review application.
[147]
I appreciate that the way in which the evolving
law of abuse of process influenced Mr. Groia’s allegations was not argued
before the Appeal Panel. Nevertheless, in my respectful view, it was
unreasonable for the Appeal Panel to evaluate Mr. Groia’s behaviour based on
the law of abuse of process Rosenberg J.A. articulated in Felderhof
three years after the conduct at issue took place.
(ii)
The Judges’ Reactions to Mr. Groia’s Behaviour
and Mr. Groia’s Response
[148]
The Appeal Panel also failed to factor into its
analysis how the trial judge reacted to Mr. Groia’s behaviour and how Mr. Groia
modified his conduct in response to the trial judge and reviewing courts’
directions. Both of these factors suggest that Mr. Groia’s behaviour was not
worthy of a finding of professional misconduct.
[149]
Mr. Groia began accusing the OSC prosecutors of
impropriety early on in the proceedings. Yet for the vast majority of Phase
One, the trial judge adopted a passive stance, choosing not to comment on the
substance of Mr. Groia’s allegations or the manner in which he was making them.
The trial judge remained largely silent even as the OSC prosecutors repeatedly
complained about Mr. Groia’s behaviour and insisted that the trial judge rule
on whether their conduct was improper.
[150]
For example, after one hotly contested exchange
between the parties, the trial judge accepted that Mr. Groia’s allegations were
“notice that [an abuse of process] application may come at the end of the day”
and stated that “there is no ruling to be made with respect to that matter”.
The trial judge responded to another of the OSC’s requests to rule on Mr.
Groia’s allegations by stating that he expected both counsel “to conduct
themselves professionally”.
[151]
It was not until the 57th day of trial that the
judge first instructed Mr. Groia to simply make “the same objection” when he
believed the prosecutors were acting inappropriately. On the record before this
Court, the trial judge reminded Mr. Groia to refrain from repeating his
misconduct allegations on two more occasions in the remaining weeks of Phase
One. In response, Mr. Groia largely complied with the trial judge’s admonition.
[152]
The Appeal Panel noted the relevance of the
presiding judge’s reaction to the professional misconduct inquiry. However, it
did not once mention how the trial judge reacted to Mr. Groia’s allegations
when assessing his behaviour. This was a significant omission. While I accept
that the trial judge’s passive approach throughout the bulk of Mr. Groia’s
prosecutorial misconduct allegations does not, on its own, absolve Mr. Groia of
any wrongdoing, it nevertheless shaped both the substance and manner of Groia’s
allegations.
[153]
First, by failing to correct Mr. Groia’s legal
mistakes, the trial judge buttressed the reasonableness of Mr. Groia’s
sincerely held but mistaken belief that the OSC prosecutors were in fact acting
abusively. Second, the trial judge’s failure to admonish Mr. Groia for the
manner in which he raised his allegations signaled to Mr. Groia that there was
nothing wrong with the way he was impugning the prosecutors’ integrity. It was
therefore imperative for the Appeal Panel to consider the trial judge’s
reaction when evaluating Mr. Groia’s conduct. In this regard, I note that this
was a judge-alone trial, and admonishing Mr. Groia for the manner in which he
was impugning the prosecutors’ integrity could not possibly have prejudiced him
the way it might have had this been a jury trial. Equally, there was nothing
preventing the trial judge from admonishing Mr. Groia for his mistaken legal
beliefs and letting him know that they did not form a proper basis for
allegations of prosecutorial misconduct.
[154]
Nor did the Appeal Panel incorporate Mr. Groia’s
marked change in behaviour in response to the directions of the trial judge and
the reviewing courts into its analysis. When the trial judge instructed Mr.
Groia how to object when he thought the prosecution was offside, Mr. Groia, for
the most part, listened. And after receiving a “public shaming” from Campbell
J. and Rosenberg J.A., Phase Two of the Felderhof trial unfolded without
incident. It was incumbent on the Appeal Panel to factor in Mr. Groia’s
compliance with the judges’ directions when assessing his behaviour. Both the
trial judge’s passivity and Mr. Groia’s compliance with the directions given by
every judge involved in this case militate against a finding of professional
misconduct.
(iii)
The Manner in Which Mr. Groia Brought His
Allegations
[155]
The final contextual factor is the manner in
which Mr. Groia brought his allegations. My colleagues assert that I “discount
the manner in which Mr. Groia made his allegations”, thereby “setting a
benchmark for professional misconduct that permits sustained and sarcastic
personal attacks”: reasons of Karakatsanis J. et al., at paras. 211 and 227.
[156]
Respectfully, I take issue with that
characterization of my reasons. I appreciate that a lawyer can be found guilty
of professional misconduct for challenging opposing counsel’s integrity in an
inappropriate manner. However, in this case, the manner in which Mr. Groia made
his allegations could not, on its own, reasonably ground a finding of
professional misconduct.
[157]
To be sure, Mr. Groia should not have made his
allegations in the sarcastic tone that he sometimes employed. The tenor of his
allegations at times descended into what can fairly be described as “petulant
invective”: Felderhof ONSC, at para. 64. However, as indicated,
throughout the majority of Phase One, the trial judge did not criticize Mr.
Groia for the manner in which he was making his allegations. Although the trial
judge’s passivity cannot be taken as acquiescence, it is nonetheless a relevant
contextual factor to consider when evaluating the language and tone Mr. Groia
chose to employ. When the trial judge did intervene, Mr. Groia appropriately
modified the way in which he pursued his abuse of process arguments. The
sarcastic manner in which Mr. Groia challenged the prosecutors’ integrity
simply cannot, in light of the other contextual factors in this case, justify
the Appeal Panel’s finding of professional misconduct.
[158]
My colleagues in dissent rely heavily on
Campbell J. and Rosenberg J.A.’s critical comments of Mr. Groia’s behaviour
throughout Phase One to reach a contrary conclusion: reasons of Karakatsanis J.
et al., at para. 225. Those comments, however, were made in a proceeding to
which Mr. Groia was not a party, without giving Mr. Groia an opportunity to
defend himself. While undoubtedly helpful in guiding Mr. Groia on the scope of
appropriate behaviour going forward, it is unfair to take those comments as
conclusive proof of professional misconduct on account of incivility. Further,
as indicated, despite the criticisms levelled at Mr. Groia by Campbell J. and
Rosenberg J.A. for the uncivil way in which he had made his allegations against
Mr. Naster, the trial judge never once castigated Mr. Groia for the tone or
manner of his submissions or the language used by him.
V.
Conclusion and Disposition
[159]
The Appeal Panel’s finding of professional
misconduct against Mr. Groia was unreasonable. The Appeal Panel used Mr.
Groia’s sincerely held but mistaken legal beliefs to conclude that his
allegations of prosecutorial misconduct lacked a reasonable basis. But,
as I have explained, Mr. Groia’s legal errors — in conjunction with the OSC
prosecutor’s conduct — formed the reasonable basis upon which his
allegations rested. In these circumstances, it was not open to the Appeal Panel
to conclude that Mr. Groia’s allegations lacked a reasonable basis. And because
the Appeal Panel accepted that the allegations were made in good faith, it was
not reasonably open for it to find Mr. Groia guilty of professional misconduct
based on what he said. The Appeal Panel also failed to
account for the evolving abuse of process law, the trial judge’s reaction to
Mr. Groia’s behaviour, and Mr. Groia’s response — all factors which suggest Mr.
Groia’s behaviour was not worthy of professional discipline on account of
incivility. The finding of professional misconduct against him was therefore
unreasonable.
[160]
Looking at the circumstances of this case as a
whole, the following becomes apparent. Mr. Groia’s mistaken allegations were
made in good faith and were reasonably based. The manner in which he raised
them was improper. However, the very nature of Mr. Groia’s allegations —
deliberate prosecutorial misconduct depriving his client of a fair trial — led
him to use strong language that may well have been inappropriate in other
contexts. The frequency of his allegations was influenced by an underdeveloped
abuse of process jurisprudence. The trial judge chose not to curb Mr. Groia’s
allegations throughout the majority of Phase One. When the trial judge and
reviewing courts did give instructions, Mr. Groia appropriately modified his
behaviour. Taking these considerations into account, the only reasonable
disposition is a finding that he did not engage in professional misconduct.
[161]
I would allow the appeal and set aside the
decision of the Appeal Panel with respect to the finding of professional
misconduct against Mr. Groia and the penalty imposed. I would award costs to
Mr. Groia in this Court and in the courts below, as well as in the proceedings
before the Law Society. Because Mr. Groia, in the circumstances of this case,
could not reasonably be found guilty of professional misconduct, the complaints
against him are dismissed and there is no need to remit the matter back to the
Law Society: Giguère v. Chambre des notaires du Québec, 2004 SCC 1, [2004]
1 S.C.R. 3, at para. 66.
The following are the reasons delivered by
Côté J. —
[162]
I agree with my colleague, Moldaver J., that the
Law Society Appeal Panel erred in finding that Mr. Groia committed professional
misconduct in the course of defending his client, Mr. Felderhof. However, I
write separately to express my disagreement as to the applicable standard of
review. In my view, the Appeal Panel’s finding of professional misconduct is
reviewable on the correctness standard on the basis that the impugned conduct
occurred in a courtroom, as discussed by Brown J.A. in his dissenting reasons
in the Court of Appeal (2016 ONCA 471, 131 O.R. (3d) 1). I concur with the
majority’s disposition of this case because the Appeal Panel’s conclusion that
Mr. Groia committed professional misconduct was incorrect.
[163]
As always, when it comes to the standard of
review, our approach is guided by Dunsmuir v. New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190. That case prescribes a two-step analysis. First, we must
look at our existing jurisprudence to ascertain whether the appropriate degree
of deference has already been determined. Second, if an analysis of existing
precedent does not prove fruitful, we must look to the relevant contextual
factors to determine whether the correctness standard or the reasonableness
standard is appropriate (Dunsmuir, at paras. 62-64).
[164]
Applying that approach here, our existing
jurisprudence does not dictate the standard of review in this appeal. Although Law
Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, and Doré v.
Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R.
395, involved professional misconduct allegations, the context of this case is
different in one critical — and dispositive — respect: the
impugned conduct occurred before a judge in open court. As I discuss below, the
fact that the relevant conduct occurred in a court of law implicates
constitutional imperatives about the judiciary’s independence and its capacity
to control its own processes. The nature of the impugned conduct therefore
distinguishes this case from both Ryan and Doré.
[165]
Turning to an analysis of the
contextual factors, Dunsmuir instructs that “[d]eference will usually
result where a tribunal is interpreting its own statute”, as is the case
here (para. 54 (emphasis added)). But this presumption is just that: a
presumption that can be rebutted, not an inviolable command that is “carved in
stone” (McLean v. British Columbia (Securities Commission), 2013 SCC 67,
[2013] 3 S.C.R. 895, at para. 22). Dunsmuir permits — indeed,
it expressly envisions — that the presumption of reasonableness will
be rebutted in “the exceptional other case” (Rogers Communications
Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012
SCC 35, [2012] 2 S.C.R. 283, at para. 16 (emphasis in original)).
[166]
This is such a case. The fact
that the impugned conduct occurred in a courtroom rebuts the presumption of
reasonableness. I agree, on this point, with Brown J.A.’s dissenting
reasons in the court below: correctness review is required because the Law
Society of Upper Canada’s inquiry into in-court professional misconduct
“engages the contours of the constitutional relationship between the courts and
government regulators” (C.A. reasons, at para. 312).
[167]
Judicial independence is, without
question, a cornerstone of Canadian democracy. It is essential to both the
impartiality of the judiciary and the maintenance of the rule of law (Reference
Re Remuneration of Judges of the Provincial Court of Prince Edward Island,
[1997] 3 S.C.R. 3, at para. 10). As Chief Justice Dickson remarked
more than 30 years ago: “The role of the courts as resolver of disputes,
interpreter of the law and defender of the Constitution requires that they be
completely separate in authority and function from all other
participants in the justice system” (Beauregard v. Canada, [1986] 2
S.C.R. 56, at p. 73 (emphasis in original); see also Mackeigan v.
Hickman, [1989] 2 S.C.R. 796, at pp. 827-28).
[168]
An inquiry by a law society into
a lawyer’s in-court conduct risks intruding on the judge’s function of managing
the trial process and his authority to sanction improper behaviour. It does so
by casting a shadow over court proceedings — in effect, chilling
potential speech and advocacy through the threat of ex post punishment,
even where the trial judge offered the lawyer no indication that his or her
conduct crossed the line. And it permits an administrative body to second-guess
the boundaries of permissible advocacy in a courtroom that is ultimately
supervised by an independent and impartial judge.
[169]
I do not contest that the Law
Society has the statutory authority to sanction in-court conduct. However, the
contextual reality that must be considered when determining the standard of
review for such decisions is that the courtroom is “the workplace of the
independent judiciary” (C.A. reasons, per Brown J.A., at
para. 312). To protect this independence, and the authority of judges to
manage the proceedings before them in the manner they see fit, the
judiciary — not a regulatory body, a creature of the political
branches of government — should have the final say over the
appropriateness of a lawyer’s conduct in that sphere. The reasonableness
standard of review, which requires judicial deference to a law society’s
disciplinary determinations, is inconsistent with this prerogative. Therefore,
correctness review is required to ensure proper respect for the judiciary’s
constitutionally guaranteed place in our democracy.
[170]
Assuming (without deciding) that
the Appeal Panel adopted the correct test for professional misconduct, I
conclude that its application of that test to Mr. Groia’s conduct was
incorrect. As a result, I concur with the majority that the Appeal Panel erred
in finding that Mr. Groia committed professional misconduct.
[171]
As Moldaver J. describes (at
paras. 126-41), the Appeal Panel effectively disregarded its own stated
approach, using Mr. Groia’s sincerely held but erroneous legal beliefs to
support its conclusion that he engaged in professional misconduct. Once that
factor is set aside, there is little else upon which a finding a professional
misconduct could be correctly made.
[172]
In particular, I find it relevant that the
presiding judge elected to adopt a relatively passive approach to confronting
Mr. Groia’s aggressive tactics, even in the face of repeated requests from
the prosecution to sanction his behaviour. This was well within the scope of
legitimate options open to the judge in the context of this trial. But as a
consequence, Mr. Groia was entitled to rely on the judge’s responses (or
lack thereof) in calibrating his litigation strategy. Once the judge did
intervene, Mr. Groia largely complied with his instructions. And the
second phase of the trial ran smoothly. The Appeal Panel failed to give
appropriate weight to these considerations.
[173]
I also agree with Moldaver J. (at
paras. 143-47) that the uncertain state of the law regarding the manner in
which abuse of process allegations should be raised weighs against a finding of
professional misconduct. We rightly expect that lawyers will push the
boundaries of the law, where appropriate, in advancing the interests of their
clients. The law would stagnate in the absence of creative and novel legal
argumentation. Although this does not give lawyers free licence to knowingly advance
frivolous or completely baseless positions, we must be sensitive to the
potential chilling effect on legal advocacy when assessing the jurisprudential
context in which alleged misconduct occurs. Here, I am prepared to err on the
side of accepting that there was some procedural uncertainty — which
the Appeal Panel did not account for — that contextualizes the
frequency of Mr. Groia’s allegations. This, too, undermines the
correctness of the Appeal Panel’s ultimate conclusion.
[174]
For these reasons, I would allow the appeal. I
agree with Moldaver J.’s disposition as to costs. I also agree that there
is no need to remit the matter back to the Law Society.
The following are the reasons delivered by
Karakatsanis, Gascon
and Rowe JJ. —
I.
Introduction
[175]
We have read the reasons of our colleague
Justice Moldaver and agree with him on a number of key issues. We agree that
reasonableness is the applicable standard of review: Moldaver J.’s reasons
(M.R.), at paras. 43–57. We also agree that the simple fact that a lawyer’s
behavior occurs in the courtroom does not deprive the Law Society of Upper
Canada of its legitimate role in regulating the profession nor does it justify
heightened judicial scrutiny: M.R., at paras. 53–56. Lastly, we agree that, in
articulating a standard of professional misconduct, the Law Society Appeal
Panel reasonably set out a contextual approach which will vary according to the
particular factual matrix in which it is applied: M.R., at paras. 77–80.
[176]
However, we disagree with Justice Moldaver’s
disposition in this appeal. In our view, the Appeal Panel’s decision was
reasonable. The Panel set out an approach for assessing whether Mr. Groia had
committed professional misconduct and faithfully applied it. Its analysis was
cogent, logical, transparent, and grounded in the evidence. Its decision
achieved a reasonable balance of its statutory objectives and an advocate’s
freedom of expression. There is no basis to interfere.
[177]
We also have a number of concerns about Justice
Moldaver’s application of the reasonableness standard. Respectfully, we are of
the view that he fundamentally misstates the Appeal Panel’s approach to
professional misconduct, and reweighs the evidence to reach a different result.
This is inconsistent with reasonableness review as it substitutes this Court’s
judgment for that of the legislature’s chosen decision maker. Further, we have
serious concerns about the impacts that will follow from our colleague’s
analysis and disposition in this appeal.
II.
Analysis
A.
The Reasonableness
Standard
[178]
Judicial review upholds the rule of law and
legislative supremacy: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190, at para. 30. In most instances, both principles can be sustained by
deferring to the legislature’s delegated decision maker: ibid., at
para. 49. Such deference recognizes that delegated authorities will have
greater expertise in matters under their scope of authority and are better
situated than courts to choose from among the range of reasonable outcomes:
ibid.
[179]
Where, as here, the standard of review analysis
leads to the application of reasonableness, deference is not optional. In Dunsmuir,
this Court defined reasonableness as concerned “mostly with the existence of
justification, transparency and intelligibility within the decision‑making
process” and “with whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law”:
para. 47. On one hand, reasonableness is a threshold that decision makers must
satisfy with regard “both to the process of articulating the reasons and to
outcomes”: ibid. On the other hand, reasonableness prescribes a method
of review that requires courts to begin their analysis with “respectful
attention to the reasons offered or which could be offered”: ibid., at
para. 48, quoting D. Dyzenhaus, “The Politics of Defence: Judicial Review and
Democracy” in M. Taggart ed., The Province of Administrative Law (1997),
279, at p. 286.
[180]
In applying the reasonableness standard,
deference bars a reviewing court from conducting an exacting criticism of a
decision in order to reach the result that the decision was unreasonable: Law
Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, at
para. 56. It follows that a reviewing court also cannot supplement the decision
maker’s reasoning for the purpose of undermining it. Neither may a reviewing
court reweigh evidence or contextual factors considered by the decision maker:
Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R.
339, at para. 61; Dr. Q v. College of Physicians and Surgeons of British
Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226, at para. 41; British
Columbia (Workers’ Compensation Appeal Tribunal) v. Fraser Health Authority,
2016 SCC 25, [2016] 1 S.C.R. 587, at para. 38; Suresh v. Canada (Minister of
Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, at para. 29; Lake
v. Canada (Minister of Justice), 2008 SCC 23, [2008] 1 S.C.R. 761, at para.
34.
[181]
Fundamentally, reviewing courts cannot simply
“pay lip service to the concept of reasonableness review while in fact imposing
their own view”: Dunsmuir, at para. 48. At all times, the
starting point of reasonableness review is the reasons for the decision under
review.
B.
The Appeal Panel’s Decision Was Reasonable
[182]
For the reasons that follow, we would find that
the Appeal Panel’s decision was reasonable.
(1)
The Appeal Panel’s Approach to Civility and
Professional Misconduct
[183]
The Appeal Panel started its analysis by
examining lawyers’ professional conduct obligations and the concept of
civility. It reviewed the rules and the codes of conduct, as they appeared at
the time of the Felderhof trial as well as related commentary, and noted
the need to balance a lawyer’s expressive rights with his or her professional
obligations: 2013 ONLSAP 41 (A.P. reasons), at paras. 202-20 (CanLII). The
Appeal Panel also highlighted the impact of uncivil behaviour on the
administration of justice: A.P. reasons, at paras. 228–31. The Panel noted that
incivility is about more than “hurt feelings”; attacks on the integrity of
one’s opponent risk disrupting a trial and risk rendering opposing counsel
ineffective: para. 230.
[184]
Following its detailed analysis of the
importance of civility in the legal profession, the Appeal Panel articulated
its approach to determining when uncivil courtroom behaviour crosses the line.
This approach is “fundamentally contextual and fact-specific” so as to take
into account the trial context and avoid a chilling effect on zealous advocacy:
A.P. reasons, at para. 232. All of the surrounding circumstances must be
considered. The Appeal Panel noted that the trial judge’s reaction, while
relevant to an assessment of misconduct, is not determinative: para. 225.
[185]
The Appeal Panel then narrowed its focus to the
issue arising in Mr. Groia’s case, “the extent to which zealous defence counsel
may impugn the integrity of opposing counsel and make allegations of
prosecutorial misconduct”: para. 234. The Panel stated:
In our view, it is professional misconduct to make allegations of prosecutorial misconduct
or that impugn the integrity of opposing counsel unless they are both made in
good faith and have a reasonable basis. A bona fide belief is
insufficient; it gives too much licence to irresponsible counsel with sincere
but nevertheless unsupportable suspicions of opposing counsel . . . .
In addition, even when a
lawyer honestly and reasonably believes that opposing counsel is engaging in
prosecutorial misconduct or professional misconduct more generally, she must
avoid use of invective to raise the issue. That is, it is unprofessional to
make submissions about opposing counsel’s improper conduct, to paraphrase
Justice Campbell, in a ‘repetitive stream of invective’ that attacks that
counsel’s professional integrity. [paras. 235-36]
[186]
Notably, the Appeal Panel determined that any
allegations of professional misconduct or that impugn the integrity of opposing
counsel must be made in good faith and with a reasonable basis. Even where
these two requirements are met, lawyers must be respectful and avoid the use of
invective. The Appeal Panel was clear that any such allegations must be
considered in context; the requirement to consider good faith and
reasonableness are necessarily informed by the way the trial unfolded.
[187]
We agree with Cronk J.A., writing for the
majority of the Ontario Court of Appeal, that the “highly contextual and
fact-specific nature of incivility necessarily requires affording the
disciplinary body leeway in fashioning a test that is appropriate in the
circumstances of the particular case”: 2016 ONCA 471, 131 O.R. (3d) 1, at para.
125. Here, there is no doubt that it was open to the Appeal Panel to adopt the
approach it did. The Panel’s reasoning was nuanced and flexible, responsive to
the particular factual matrix in which it is applied. This approach flowed
directly from the Panel’s thorough consideration of the rules, related
commentary, and the jurisprudence. The adaptability of this approach ensures
that it will not sanction zealous advocacy. It ensures that the context in which
the impugned conduct occurred will be adequately accounted for, from the trial
judge’s reaction to the “dynamics, complexity and particular burdens and stakes
of the trial”: A.P. reasons, at para. 233. Importantly, the Panel noted that
professional misconduct is about more than “mere rudeness” (para. 211); rather,
the focus is on allegations of prosecutorial misconduct or that impugn the
integrity of an opponent: paras. 210 and 235.
[188]
Respectfully, we consider that Justice Moldaver
reformulates the Appeal Panel’s approach to professional misconduct. While he
acknowledges the appropriateness of its chosen contextual approach, he
effectively reframes the Appeal Panel’s approach as consisting of three
factors: (1) what the lawyer said; (2) the manner in which it was said; and (3)
the trial judge’s reaction (M.R., at para. 36). Tellingly, while not found in
the Appeal Panel’s reasons, this formulation closely resembles the tests urged
by Mr. Groia and the dissenting judge of the Ontario Court of Appeal, both of
whom advocated a correctness standard of review. As noted above, the Panel did
not opt for such a restrictive framework and instead adopted a fact-specific
and contextual approach for ascertaining professional misconduct: A.P. reasons,
at paras. 7 and 232.
(2)
The Appeal Panel’s Assessment
of the Case
[189]
We turn now to the Appeal Panel’s application of
its approach to the facts of this case. In our view, the Appeal Panel’s
analysis of the Felderhof trial was a faithful and reasonable
application of the approach it outlined.
(a)
Whether Mr. Groia Had a Reasonable Basis for His
Allegations
[190]
Because the Appeal Panel did not have the
benefit of hearing Mr. Groia’s testimony, it assumed that Mr. Groia “held an
honest belief in his allegations of prosecutorial misconduct”: para. 238. On
this basis the Appeal Panel assumed Mr. Groia was acting in good faith. The
Appeal Panel clearly stated, however, that “it is professional misconduct to
make [such allegations] . . . unless they are both made in good faith and
have a reasonable basis”: para. 235 (emphasis added). The Appeal Panel thus
suggested that the Law Society can still consider the reasonableness of a
lawyer’s allegations even where they are made in good faith, in that they arise
from a mistaken but sincerely held belief. As such, the Panel’s reasons
focussed primarily on whether Mr. Groia had a “reasonable basis” for his
allegations of prosecutorial misconduct and his comments that impugned the
integrity of his opponents. Mr. Groia argued that he had such a basis: A.P.
reasons, at paras. 239-40. The Appeal Panel disagreed. In our view, it was open
to the Appeal Panel to do so.
[191]
The Appeal Panel’s reasons demonstrate that it
considered both the factual and legal underpinnings of Mr. Groia’s claims to
determine whether they had a reasonable basis:
Our concern about the
submissions quoted above is not merely that Mr. Groia was making
incorrect legal submissions; that, of course, is not a basis for a finding of
professional misconduct. Our concern is that Mr. Groia appears to have been
using those submissions as a platform to attack the prosecutors, and in
particular to impugn their integrity, without a reasonable basis to do so.
. . .
[Mr. Groia’s]
submissions, in our view, directly attack the integrity of the prosecutors, by
alleging that they cannot be relied upon to keep their ‘word’ and are lazy and
incompetent. . . . Further, they have no factual foundation. As a matter of
the law of evidence that Mr. Groia ought to have known, Mr. Naster was perfectly
entitled to object to Mr. Groia putting documents to a witness notwithstanding
that the witness could not identify them and suggesting that they be marked as
exhibits. . . .
. . .
In our review of the
record, we could find no evidentiary foundation for the allegations of
deliberate prosecutorial misconduct at this point in the trial. . . . His
submissions regarding the ‘conviction filter’ not only were wrong in law but
did not have a reasonable basis. And again, these submissions amplified and
repeated comments made earlier in the trial, to the effect that the prosecutors
were acting deliberately to make it impossible for Mr. Felderhof to get a fair
trial. [Emphasis added; paras. 280, 285 and 295.]
[192]
As the Panel noted, being wrong on the law is
itself not a basis for professional misconduct in most situations: para. 280.
However, it is clear from the passages cited above that the Appeal Panel was
concerned with more than just whether Mr. Groia’s legal submissions were correct
or not. Errors of law may be so egregious that submissions based on those
errors have no “reasonable basis”. Put another way, allegations — made in good
faith — may constitute professional misconduct if they have no reasonable
legal basis.
[193]
In our view, it was open to the Panel to consider
both the factual and legal bases for the allegations at issue. The Appeal
Panel’s mandate permits it to determine “any question of fact or law that
arises in a proceeding before it”: Law Society Act, R.S.O. 1990, c. L.8,
s. 49.35(1). Indeed, the Law Society rules govern civility and
competence: Rules of Professional Conduct (2000), Rule 2.01 (now
Rule 3.1). One rule that Mr. Groia was accused of having
breached prohibits “ill-considered or uninformed
criticism of the competence, conduct, advice, or charges
of other legal practitioners”: Rules of Professional Conduct (2000),
Rule 6.03(1) commentary; see A.P. reasons, at paras. 203 and 208. This standard
can only be applied with some reference to the basic legal information a
responsible lawyer is expected to possess or seek out before criticizing
another lawyer’s professional conduct. The Appeal Panel’s choice to
require a reasonable basis for the submissions indicates its intention
to weed out egregious mistakes of law.
[194]
As such, the Panel was entitled to consider whether there is a
reasonable basis for the allegations where a lawyer alleges
prosecutorial misconduct or impugns the integrity of opposing counsel. “Reasonableness”,
as opposed to “good faith”, implies consideration of whether the allegations,
objectively, had a legal or factual basis. This approach simply permits the
Appeal Panel to consider, as a whole, the reasonableness of allegations that
raise prosecutorial misconduct or impugn the integrity of opposing counsel,
within the context of the proceedings. This is justified by the serious
consequences that irresponsible attacks can have on opposing counsel’s
reputation as well as the public perception of the justice system.
[195]
Following the Appeal Panel’s review of the
evidence, the Panel concluded that there was no reasonable basis (in fact or in
law) for Mr. Groia’s allegations against the Ontario Securities Commission
(OSC) prosecutors. It held that there was “no foundation” for Mr. Groia’s allegations,
and that there was nothing “to suggest that either the OSC or the prosecutors
were dishonest or intentionally attempting to subvert the defence” or that the
prosecutors were “too busy or lazy to comply with their obligations”: paras.
266, 269, 304 and 306. While the prosecutor’s actions “may well have formed the
basis for an aggressive attack on the Crown’s case”, “they did not provide a
reasonable basis for repeated allegations of deliberate prosecutorial
misconduct”: A.P. reasons, at para. 323.
[196]
These conclusions were open to the Appeal Panel.
They flowed directly from the Appeal Panel’s thorough consideration of the
evidence. The Panel “reviewed Mr. Groia’s remarks in their context, often by
relying on Mr. Groia’s own explanations in the course of the hearing panel
proceeding” and gave Mr. Groia the benefit of the doubt whenever possible:
para. 241. It considered the conduct of the prosecutors to determine whether
Mr. Groia’s allegations had a basis in the record: see, e.g. paras. 256-58,
268-69, 276, 285, 288, 295-96, 298, 300-305, 312, 314, 316 and 325. However,
despite this balanced review of the evidence, the Panel found that “[n]othing
the prosecutors did justified [Mr. Groia’s] onslaught”: para. 322. In our view,
it was open to the Appeal Panel to conclude there was no reasonable basis in
fact or in law for Mr. Groia’s allegations of prosecutorial misconduct and his
comments that impugned the integrity of his opponents.
[197]
Justice Moldaver takes a different view of the
Appeal Panel’s reasoning respecting the “reasonable basis” requirement. He
suggests that the Appeal Panel determined that a lawyer’s bona fide legal
mistakes can never ground a finding of professional misconduct: paras.
126-27. He therefore concludes that Mr. Groia’s good-faith (though mistaken)
belief that the OSC prosecutors’ actions were contrary to law in part “provided
the reasonable basis for his allegations”: para. 138 (emphasis in original). Respectfully,
we are of the view that a reviewing court should give effect to the Appeal
Panel’s decision to adopt an approach with both subjective and objective
considerations (i.e. to require “good faith” and a “reasonable basis”). We
would not collapse the distinction between these criteria by restricting the
Appeal Panel’s ability to assess the reasonableness of legal submissions to
determining whether the lawyer was acting in good faith.
[198]
The majority’s approach effectively creates a
novel mistake of law defence: a lawyer will have a “reasonable basis” for
allegations of misconduct anytime his beliefs as to the law — if they were
correct — would create such a basis. This makes the “reasonable basis” requirement
dependent on the subjective legal beliefs of the lawyer. As such, any
accusations grounded in an honestly held legal belief will be immune from Law
Society sanction, irrespective of how baseless that legal belief is.
[199]
However, the Appeal Panel explicitly rejected
the idea that whenever a lawyer’s accusations are based on an honestly held
belief in the law, they necessarily have a “reasonable basis”. As discussed
above, the Panel was of the view that allegations must have a reasonable
legal basis to be justifiable, and this inquiry should not focus solely
on the subjective beliefs of the lawyer. It is not a respectful reading of the
Appeal Panel’s reasons to articulate a novel test for professional misconduct,
then fault the Panel for failing to apply it. It was open to the Appeal Panel
to hold that a lawyer who erroneously alleges prosecutorial misconduct or
impugns the integrity of opposing counsel should not be shielded from
professional sanction because of his or her own incompetence.
[200]
Justice Moldaver also takes issue with the
Appeal Panel’s finding that Mr. Groia had no reasonable factual basis
for his accusations. The Appeal Panel’s decision respecting Mr. Groia was based
in part on its conclusion that it is professional misconduct to make allegations
that “impugn the integrity of opposing counsel” without a reasonable basis to
do so: paras. 235, 320 and 324. The Panel found that Mr. Groia “repeatedly cast
aspersions” on Mr. Naster, accusing him of reneging on promises when Mr. Naster
contested the admissibility of certain documents: paras. 297, 299 and 319-20.
The Panel determined, however, that these allegations had no factual basis:
. . . Mr. Groia had no reasonable
basis on which to attack either the integrity of the prosecutors or their motives.
The prosecutors had not promised that they would introduce all relevant
documents, regardless of the rules of evidence. They were under no
obligation to call evidence favourable to the defence. They had not resiled
from their promises. Their positions on evidentiary issues were not
improper and were often correct. [Emphasis added; para. 324.]
[201]
Justice Moldaver states that it was “not
reasonably open” to the Appeal Panel to find that Mr. Groia’s allegations
lacked a reasonable factual basis: M.R., at para. 134. This, according to his
analysis, is because the Panel should have appreciated how Mr. Groia’s legal
mistakes “coloured his understanding of the facts”: M.R., at para. 135. With
respect, the Appeal Panel was entitled to make the findings of fact it made.
Reasonableness review of a decision requires deferential consideration of the
rationales of the decision maker.
(b)
The Appeal Panel’s Weighing of the Evidence
[202]
In determining whether Mr. Groia’s allegations
crossed the line into professional misconduct, the Appeal Panel applied its
expertise and decided how to assess the evidence as a whole.
[203]
The Appeal Panel focussed, for example, on the
disrespectful manner in which Mr. Groia made his allegations: paras. 290, 299
and 328. The Panel noted Mr. Groia’s sarcastic use of the word “Government” to
describe the OSC’s lawyers. The Panel found that it was wrong to use the term
“as a way of casting aspersions on opposing counsel without a reasonable
basis”: para. 286. The Panel also highlighted numerous instances in which Mr.
Groia directly attacked the integrity of his opponents in a harsh and cutting
way. On the issue of the admission of documents, Mr. Groia repeatedly commented
that he could not enter a document “because the Government isn’t prepared to
stand by its representations to this Court” and because the prosecutors “don’t
live up to their promises”: A.P. reasons, at para. 299. Mr. Groia also
remarked: “My friend doesn’t like the fact that he is being held to statements
he made in open court. I am sorry. He made those submissions” and asked the
judge: “Is my friend ever going to explain to this Court, or God forbid, ever
apologize to this Court for the Government’s conduct in this case?”(ibid.)
When arguing about the admissibility of a National Post article, Mr.
Groia said: “I am heartened to see that Your Honour is no more able to get a
straight answer out of the prosecutor than the defence has been” (ibid.,
at para. 311).
[204]
The Appeal Panel also placed significant weight
on the cumulative impact of Mr. Groia’s comments: para. 318. Mr. Groia’s
comments built on one another throughout the course of the Felderhof trial,
and the Panel therefore found it necessary to measure their cumulative effects
rather than considering each in isolation: paras. 285 and 319.
[205]
Following its consideration of the evidence as a
whole, the Appeal Panel concluded that Mr. Groia had engaged in professional
misconduct. While the Appeal Panel noted that certain of Mr. Groia’s comments
did not cross the line into professional misconduct, it concluded that his
conduct, when considered cumulatively, can “best be described as a relentless
personal attack on the integrity and the bona fides of the prosecutors”:
paras. 252, 270, 280, 317 and 318. The Panel also determined that Mr. Groia’s
behaviour had a negative impact on the trial and on the administration of
justice: paras. 313 and 332. In light of all of the facts at play, the Panel
concluded that Mr. Groia’s allegations crossed the line and warranted sanction.
[206]
In our view, it was open to the Panel to weigh
the evidence in the way it did. Its findings regarding the disrespectful way
that Mr. Groia made his allegations were amply supported by the record, as were
its conclusions on the cumulative effects of his conduct. Ultimately, the reasons
support the Appeal Panel’s conclusion that Mr. Groia was engaged in
professional misconduct: Canada (Director of Investigation and Research) v.
Southam Inc., [1997] 1 S.C.R. 748, at para. 56; Ryan, at
para. 47. Both the evidentiary foundation and the logic of the reasons were
sound: ibid. The decision is justifiable, intelligible, and transparent
and falls within the range of reasonable outcomes: Dunsmuir, at para.
47.
[207]
Justice Moldaver takes issue with the way that
the Appeal Panel weighed the evidence before it. He would reduce the weight
assigned to the manner and effects of Mr. Groia’s comments because the state of
the law regarding abuse of process was uncertain at the time of the Felderhof
trial: M.R., at para. 143.
[208]
We cannot agree that the Appeal Panel was
unreasonable in failing to take such an approach. Most notably, Mr. Groia never
raised the unsettled state of the law regarding abuse of process before the
Appeal Panel: see A.P. reasons, at para. 239. To criticize the Appeal Panel’s
reasons for failing to consider an argument never raised before it has no basis
in reasonableness review. Adding another matter that the Appeal Panel ought to
have considered is a means of reweighing of evidence, which is inappropriate on
deferential review: Suresh, at para. 29.
[209]
Furthermore, whatever uncertainty there was
regarding the timing of when abuse of process allegations should be made, there
was no uncertainty about the underlying rules of professional ethics and law of
evidence upon which Mr. Groia had launched his volleys of ill-considered
attacks.
[210]
Justice Moldaver also places significant weight
on the trial judge’s reticence to intervene when Mr. Groia made his
allegations: M.R., at paras. 136, 148–54 and 157. However, the Appeal Panel
paid close attention to the interventions that the trial judge made in the
course of the proceedings but noted that a trial judge’s interventions are not
a determinative consideration: paras. 53-56, 76-77, 86-88, 90-91, 103, 263,
269, 272 and 281. The Panel was entitled to determine that other factors
warranted more weight in the circumstances of this case.
[211]
In the same vein, Justice Moldaver would also
discount the manner in which Mr. Groia made his allegations on the basis that
the trial judge had not intervened: M.R., at para. 157. In our view, the Appeal
Panel was entitled to place substantial weight on Mr. Groia’s use of
unnecessary invective: A.P. reasons, at paras. 236 and 328.
[212]
Justice Moldaver uses the trial judge’s lack of
intervention in respect of Mr. Groia’s legal errors as an indication that the
Panel was unreasonable in concluding that Mr. Groia’s allegations lacked a
factual foundation: M.R., at paras. 136 and 153. With respect, we consider that
it is within the Panel’s statutory responsibility to assess the reasonableness
of lawyers’ submissions. The fact that the trial judge did not tell Mr. Groia
that he was wrong in law did not require the Panel to find that his submissions
were reasonable.
[213]
Thus we cannot agree with Justice Moldaver’s
application of the reasonableness standard. In our view, he misstates the
Appeal Panel’s approach and reweighs the evidence in order to reach a different
result. Our colleague may have preferred choices other than those made by the
Appeal Panel. However, that is no basis to intervene on judicial review and
rebalance the scales. In reasonableness review, courts must resist the
temptation to come to a conclusion different than the tribunal’s, particularly
where there is a logical and evidentiary underpinning for the tribunal’s conclusions:
Southam, at paras. 79-80.
(3)
Conclusion on the Reasonableness of the Appeal
Panel’s Decision
[214]
For over 200 years, the Legislature has
delegated to the Law Society the authority to determine both the rules of
professional conduct for the profession and their interpretation: Law
Society Act, ss. 34(1) and 62(0.1)10. Recognizing this expertise, this
Court has consistently held that law societies should be afforded deference: Doré
v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395, at para. 45;
Ryan, at para. 42. The Law Society is a specialized body; here,
it was applying its own rules to a specific case that fell well within the core
of its expertise.
[215]
Because of the Law Society’s broad mandate, this
is not one of the “rare occasions where only one ‘defensible’ outcome exists”: Wilson
v. Atomic Energy of Canada Ltd., 2016 SCC 29, [2016] 1 S.C.R. 770, at para.
35, per Abella J. The existence of reasonableness review is, rather, premised
on the fact that “certain questions that come before administrative tribunals
do not lend themselves to one specific, particular result”: Dunsmuir, at
para. 47.
[216]
For the reasons set out above, we are of the
view that there is no basis on this record to interfere with the Appeal Panel’s
decision. The Panel articulated an approach for professional misconduct that
flowed directly from its consideration of the rules, commentary and
jurisprudence. It faithfully followed its approach, based on the evidence
respecting Phase One of the Felderhof trial, and concluded that Mr.
Groia had no reasonable basis for the allegations he made against the OSC
prosecutors. It then weighed the whole of the evidence and determined that when
considered in light of all of the relevant factors, Mr. Groia’s comments
constituted professional misconduct. The Panel’s logic, rationales and
conclusion were reasonable.
[217]
We would also find that the Appeal Panel’s
decision proportionately balanced the value of freedom of expression with its
mandate to ensure that lawyers conduct themselves professionally. As this Court
noted in Doré, “[i]n the Charter context, the reasonableness
analysis is one that centres on proportionality, that is, on ensuring that the
decision interferes with the relevant Charter guarantee no more than is
necessary given the statutory objectives”: para. 7. The Appeal Panel was alert
to the importance of lawyers’ expressive freedoms and the critical role of
zealous advocacy in our system: A.P. reasons, at paras. 214-17. In order to
ensure that these principles were limited no more than necessary, the Appeal
Panel adopted a contextual approach that took into account the dynamics of the
courtroom setting: para. 7. In addition, the Appeal Panel gave Mr. Groia the
benefit of the doubt and assumed that he acted in good faith. However, it was
open to the Appeal Panel to determine that at a certain point, the cumulative
effect of Mr. Groia’s allegations meant that the balance shifted and that there
was a need for limits on Mr. Groia’s conduct. It was reasonable for the Appeal
Panel to conclude that “[i]n the context of this trial, zealous advocacy did
not require Mr. Groia to make unfounded allegations of prosecutorial
misconduct”, to “impugn the integrity of his opponents” or to “frequently
resort to invective” when describing them: para. 328.
[218]
Finally, we note that all of the adjudicators
and judges who reviewed this decision on the standard of reasonableness also
concluded that the Appeal Panel’s ultimate finding of misconduct was
reasonable. The only person to conclude that Mr. Groia’s conduct did not amount
to misconduct was the dissenting judge at the Ontario Court of Appeal, who
applied a correctness standard of review. This Court should resist the
temptation to substitute its view on what the Appeal Panel should have done.
The focus on a reasonableness review is on the Appeal Panel’s actual reasons.
In this case, the Appeal Panel’s decision was reasonable.
C.
The Impacts of Allowing This Appeal
[219]
We have a number of concerns about the
implications that follow from Justice Moldaver’s reasons. Respectfully, we are
concerned that they immunize erroneous allegations from Law Society sanction,
validate improper conduct and threaten to undermine the administration of
justice and the culture change that this Court has called for in recent years.
(1)
Immunizing Accusations Based on Honestly
Believed Legal Errors
[220]
As discussed, Justice Moldaver’s reasons
effectively create a mistake of law defence that immunizes lawyers from
professional sanction whenever their allegations are based on honestly held
legal beliefs. In our view, this approach would potentially immunize lawyers
who make accusations based on erroneous, unsupportable or even reckless beliefs
about the law.
[221]
Allowing any honestly held legal belief to
provide a “reasonable basis” for allegations of prosecutorial misconduct, taken
to its logical conclusion, means that the more outrageous the lawyer’s legal
belief is, the more justified his allegations of impropriety become. This
approach creates an unduly high threshold for professional misconduct, one that
could effectively dispossess the law societies of their regulatory authority
respecting incivility anytime a lawyer can cloak his accusations in a
subjective legal belief.
(2)
Validating Uncivil Conduct
[222]
We are concerned that allowing this appeal will
be seen as a validation of Mr. Groia’s conduct and will undermine the Law
Society’s ability to sanction unprofessional conduct.
[223]
The Appeal Panel determined that even if a lawyer has a
reasonable basis for an allegation of prosecutorial misconduct, “she must avoid use of invective to raise the issue”: para. 236. This
is a reasonable approach. The Rules of Professional Conduct were — and
remain today — “crystal clear” that counsel must treat witnesses, other
lawyers, and the court with fairness, courtesy and respect: R. v. Felderhof
(2003), 235
D.L.R. (4th) 131 (Ont. C.A.) (Felderhof (ONCA)), at para. 96; Rules
of Professional Conduct (2000), Rules 4.01(1), 6.03(1) (now Rules 2.1-1,
2.1 -2 , 5.1 -1 , 5.1 -5 , 5.6 -1 , 7.2 -1 and 7.2 -4 ).
[224]
In setting aside the decision of the Appeal Panel, Justice
Moldaver, however, says little concerning the inappropriate manner in
which Mr. Groia brought his allegations. Instead, he says that “[s]trong
language . . . will regularly be necessary to bring forward allegations of prosecutorial
misconduct”: para. 101.
[225]
With respect, we take a contrary view; we cannot agree with any
suggestion that Mr. Groia’s conduct was permissible, let alone “necessary”. As
the Appeal Panel noted, Campbell J. initially found that it
was “unnecessary” for Mr. Groia to make his submissions respecting
prosecutorial misconduct in the “repetitive stream of invective” he did: R.
v. Felderhof, 2002 CanLII 41888 (Ont. S.C.J.) (Felderhof
(ONSC)), at para. 271. He described Mr. Groia’s conduct as “appallingly
unrestrained and on occasion unprofessional”, “inappropriate”, “extreme” and
“unacceptable”: R. v. Felderhof, 2003 CanLII 41569
(Ont. S.C.J.) at paras. 18 and 21. The judge
noted that on one occasion, Mr. Groia’s conduct more resembled “guerilla
theatre than advocacy in court”: Felderhof (ONSC), at para. 91. Rosenberg J.A. of the Court of
Appeal substantially agreed with these characterizations and called Mr. Groia’s
rhetoric “improper”: Felderhof (ONCA), at paras.
78-82. It is true that the Appeal Panel did not treat the view of these two
judges as determinative. It in fact recognized that the comments of Campbell J.
and Rosenberg J.A. should be given limited weight: A.P. reasons, at para. 201.
Nonetheless, we note that after reviewing the entire record of the Felderhof
trial, the Panel came to a similar conclusion about Mr. Groia’s conduct.
[226]
We agree with the Appeal Panel that there is no excuse for the
manner in which Mr. Groia brought his allegations: para. 328. It is when
lawyers are tested with challenging situations that the requirements of
civility become most important. When lawyers are raising difficult issues like
prosecutorial misconduct, they are nonetheless “constrained by their profession
to do so with dignified restraint”: Doré, at para. 68 (emphasis
added). Motions respecting prosecutorial misconduct “can and should be
conducted without the kind of rhetoric engaged in by [Mr. Groia]”: Felderhof
(ONCA), at para. 96. Zealous advocacy did not require that he “frequently
resort to invective in describing opponents who were trying to do their jobs”:
A.P. reasons, at para. 328.
[227]
By assigning limited weight to the manner in which Mr.
Groia brought his allegations, Justice Moldaver’s reasons can be read as
setting a benchmark for professional misconduct that permits sustained and
sarcastic personal attacks on opposing counsel. In our view,
there is simply no place in Canadian courtrooms for this type of conduct.
Deciding that the Law Society cannot sanction the allegations that Mr. Groia
unleashed on his opponents sends the wrong message to those who look to this
Court for guidance.
(3)
Undermining the Administration of Justice
[228]
Finally, we are concerned about the broader
impact of setting aside the Appeal Panel’s decision on the culture of the legal
profession and the administration of justice.
[229]
The Appeal Panel quite reasonably stated that
professionalism is a key component of the efficient resolution of disputes.
Uncivil, abrasive, hostile or obstructive conduct “necessarily impedes the goal
of resolving conflicts rationally, peacefully, and efficiently, in turn
delaying or even denying justice”: A.P. reasons, at para. 218, quoting Felderhof
(ONCA), at para. 83. It distracts not only counsel, who
become preoccupied with defending their own integrity rather than advocating
for their clients’ interests, but also triers of fact, who are required to
weigh in on acrimonious personal disputes rather than focusing on the merits:
see A.P. reasons, at paras. 230-31 and 332. Most importantly, though, unprofessional
attacks erode the relationship of mutual respect that is crucial to resolving
disputes efficiently. When this occurs, even minor disagreements become more
protracted; issues that might have been resolved out of court become subject to
vigorous argument, taking up court time and costing litigants money
unnecessarily: see M. Code, “Counsel’s Duty of Civility: An
Essential Component of Fair Trials and an Effective Justice System” (2007), 11 Can.
Crim. L.R. 97, at p. 105.
[230]
The Appeal Panel’s recognition of the importance
of civility to the administration of justice is consistent with this Court’s
repeated calls to address access to justice concerns. In R. v. Jordan,
2016 SCC 27, [2016] 1 S.C.R. 631, the majority challenged all participants in
the justice system to “work in concert to achieve speedier trials” (para. 116),
and pushed Crown and defence counsel to collaborate when appropriate and use
court time efficiently (para. 138). The majority stated that “[a]ll courts, including this Court, must be mindful of the impact of
their decisions on the conduct of trials”: para. 139. Similarly, in Hryniak
v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, this
Court called for a culture change in the civil context as a means of promoting
timely and affordable access to justice: para. 2. The Court specifically called
on trial counsel to be cognizant of the pressures on the justice system and
“act in a way that facilitates rather than frustrates access to justice”: para.
32. Finally, in R. v. Cody, 2017 SCC 31, [2017] 1
S.C.R. 659, this Court renewed the calls set out above, and set out specific
guidance for judges and counsel alike to do what they can to improve the
efficiency of the justice system: paras. 37-39.
[231]
Condoning Mr. Groia’s conduct risks eroding
civility in courtrooms and increasing the pressures on an already strained
system. Moreover, setting aside the decision of the Appeal Panel has the
potential to undermine the ability of law societies to promote the efficient
resolution of disputes. Law societies are important actors in the culture
change we need. Through their enabling legislation, they are provided with the
authority to sanction lawyers who commit professional misconduct and, in turn,
promote efficiency in our system. They should be empowered to do that, not
undermined through second-guessing by the courts. Their decisions respecting
professional misconduct should be approached with deference.
III.
Conclusion
[232]
We are of the view that this appeal should be dismissed. A
respectful reading of the Appeal Panel’s reasons makes clear that the Panel’s
decision was a balanced decision that grappled with the difficult issues at
play and arrived at a reasonable outcome.
[233]
Perhaps unease with the Appeal Panel’s finding of professional
misconduct stems in part from the severity of the penalty that was handed down
to Mr. Groia. A one-month licence suspension and a $200,000 cost
award may seem harsh to some, but that misses the point. That issue is not
before us on this appeal, nor is it a basis upon which to disturb the Appeal
Panel’s finding of misconduct.
Appeal
allowed with costs, Karakatsanis,
Gascon and Rowe JJ. dissenting.
Solicitors for the
appellant: Lerners, Toronto; Groia & Company, Toronto.
Solicitors for the
respondent: Lenczner Slaght Royce Smith Griffin, Toronto.
Solicitor for the
intervener the Director of Public Prosecutions: Public Prosecution Service
of Canada, Ottawa.
Solicitor for the
intervener the Attorney General of Ontario: Attorney General of Ontario, Toronto.
Solicitor for the
intervener the Attorney General of Saskatchewan: Attorney General of
Saskatchewan, Regina.
Solicitor for the
intervener the Law Society Tribunal: Law Society Tribunal, Toronto.
Solicitors for the
intervener the Advocates’ Society: Lax O’Sullivan Lisus Gottlieb, Toronto;
McCarthy Tétrault, Toronto.
Solicitor for the intervener Barreau du Québec: Barreau du
Québec, Montréal.
Solicitor for the intervener the Canadian Civil Liberties
Association: Canadian Civil Liberties Association, Toronto.
Solicitors for the
interveners the British Columbia Civil Liberties Association and the Independent
Criminal Defence Advocacy Society: Arvay Finlay, Vancouver; Farris,
Vaughan, Wills & Murphy, Vancouver.
Solicitors for the
intervener the Federation of Law Societies of Canada: Thorsteinssons,
Vancouver; Arvay Finlay, Vancouver.
Solicitors for the
intervener the Ontario Crown Attorneys’ Association: Cavalluzzo, Toronto.
Solicitors for the
intervener the Ontario Trial Lawyers Association: Allan Rouben, Barrister
and Solicitor, Toronto; Connolly Obagi, Ottawa; Boland Howe, Aurora, Ontario.
Solicitors for the
intervener the Canadian Bar Association: Norton Rose Fulbright Canada,
Montréal.
Solicitors for the
intervener the Criminal Lawyers’ Association of Ontario: Addario Law
Group, Toronto; Paradigm Law Group, Toronto.