National Post (Latest Edition)

Top court backs lawyer in civility case

- Michelle McQuigge

A lawyer who aggressive­ly defended a client embroiled in a billion-dollar mining scandal did not violate the rules of courtroom civility when he accused the prosecutor in the case of misconduct, the Supreme Court ruled on Friday.

The split decision in favour of Joe Groia marked the culminatio­n of a lengthy legal battle that pitted the Toronto securities lawyer against the Law Society of Ontario, the organizati­on that regulates attorneys in the province.

Years after Groia successful­ly defended Bre-X vicepresid­ent John Felderhof, the law society scrutinize­d his courtroom conduct in the case and found he had breached civility rules.

Groia appealed in part on the grounds that his frequent tussles with prosecutor­s were rooted in a mistaken understand­ing of a legal matter as well as the need to advocate for his client. Ontario’s top court rejected his arguments, prompting the appeal to the Supreme Court.

The majority of judges on Canada’s highest court sided with Groia, whose lawyer lauded the decision.

“Joe lost at every level, but if you’re only going to win once, the Supreme Court of Canada is the place to win,” Groia’s lawyer Earl Czerniak said of the ruling.

The law society focused attention on Groia long after the acrimoniou­s trial that ultimately concluded in an acquittal for Felderhof, the only Bre-X executive to face charges. Investors lost billions when Canadian-based Bre-X collapsed in 1997.

By all accounts, including the Supreme Court decision, the trial featured several tense exchanges between Groia and opposing lawyers and numerous allegation­s that prosecutor­s were abusing process. The top court ruling described the trial as having “a toxicity that manifested itself in the form of personal attacks, sarcastic outbursts and allegation­s of profession­al impropriet­y” that ground the proceeding­s to “a near standstill.”

The law society, finding Groia had breached civility rules, at one point suspended him for two months and ordered him to pay $247,000 in costs — later reduced to one month suspension and $200,000.

Czerniak said many of Groia’s attacks were based on a sincere misunderst­anding of legal rules regarding when prosecutor­s were obliged to introduce evidence in a trial.

Six of the nine justices supported that view and said Groia could not be found guilty of incivility because he was making his arguments in good faith.

“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,” wrote one of the judges who ruled in Groia’s favour.

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