Whose Courtroom Is It Anyway – The Latest Instalment Of Groia v The Law Society Of Upper Canada

In a decision of interest to barristers, the Ontario Court of Appeal held that the Law Society of Upper Canada is entitled to deference when regulating a lawyer's in-court conduct in Groia v The Law Society of Upper Canada, 2016 ONCA 471 (“Groia”). The Court of Appeal affirmed the Law Society's holding that it is professional misconduct to make allegations of prosecutorial misconduct or that impugn the integrity of opposing counsel, unless the allegations are made in good faith and with a reasonable basis.

Facts Joseph Groia defended John Felderhof against securities charges brought by the Ontario Securities Commission (“OSC”). Felderhof had been a senior officer and director of Bre-X, a mining company that fraudulently claimed to have discovered a large gold deposit in the 1990s. At the end of his trial, Felderhof was acquitted of all charges (R v Felderhof, 2007 ONCJ 345).

The Felderhof trial and related interlocutory proceedings spanned 7 years and used 160 days of court time. It was characterized by intractable evidentiary disputes and acrimony from both sides.

Between days 52 and 70 of the trial, Groia made incessant allegations (the “Prosecutorial Misconduct Allegations”) that the OSC prosecutors were reneging on their earlier assertions that certain documents were relevant and authentic. The allegations were underlaid by Groia's legally erroneous belief that any witness could be questioned on any document disclosed by the prosecution. Groia also kept referring to an OSC spokesperson's statement that the OSC wished to secure a conviction. After a number of directions from the trial judge, and an admonishment from the Court of Appeal (R v Felderhof (2003), 68 OR (3d) 481 (CA)), Groia changed his course and the trial proceeded uneventfully after day 70.

In 2009, the Law Society, on its own initiative, commenced disciplinary proceedings against Groia. The Law Society alleged that the Prosecutorial Misconduct Allegations constituted professional misconduct. Specifically, the Law Society alleged that Groia failed to treat the court with courtesy and respect, undermined the integrity of the profession, and failed to act with courtesy and in good faith.

Proceedings Below At first instance, the Law Society hearing panel held that the Prosecutorial Misconduct Allegations fell below the standards of civility and good faith (Law Society of Upper Canada v Joseph Peter Paul Groia, 2012 ONLSHP 0094; 2013 ONLSHP 0059). An Appeal Panel of the Law...