Bre-X lawyer back for more in fight over ‘incivility’ charge
More court battles for man who got client acquitted after scandal
The legal community is closely watching the latest round in Bre-X lawyer Joe Groia’s battle to defend himself against a controversial charge of “incivility,” which is raising fundamental questions of judicial independence and freedom of speech.
In Ontario Divisional Court on Thursday, Groia’s lawyer framed the case as an opportunity to preserve the right of all lawyers to vigorously defend their clients without fear of reprisal from an “overzealous” professional regulator.
“No lawyer wants to be the next Joe Groia,” lawyer Earl Cherniak told the panel of three judges.
“Groia (has) defended his prosecution, not only for his own sake, but also in the public interest in the profession.”
The judicial review follows nearly five years of legal wrangling over charges of professional misconduct by the Law Society of Upper Canada, which took issue with Groia’s behaviour in the early stages of the insider-trading trial of former Bre-X geologist John Felderhof.
A mining company, Bre-X Minerals announced a promising find of gold in Indonesia in 1995, sending its stock price soaring. But the samples were found to be fraudulent — the largest mining fraud in Canadian history, driving the company into bankruptcy.
The hard-fought, high-profile case ended with Felderhof’s acquittal. But in defending his client against the Ontario Securities Commission (OSC), the law society alleged Groia had displayed “incivility” a “consistent pattern of rude, improper or disruptive conduct” — charges he has been fighting ever since.
Alaw society disciplinary panel found Groia guilty in 2012 and issued a two-month suspension and ordered him to pay nearly $250,000 in legal fees.
Although an appeal panel cut down the suspension and the legal bill in 2013, the finding was upheld.
The law society’s criticisms of Groia’s behaviour includes his characterization of the OSC as “the government” and “lazy,” among other descriptions.
On Thursday, society lawyer Tom Curry, who prosecuted Groia at the disciplinary hearing, argued, “It is important that this court speak to the role that the self-regulator plays” when a lawyer “crosses the line . . . No matter where one might draw the line, Groia unfortunately but enthusiastically strode over it.”
However, Cherniak argued that the law society overstepped its authority, in part because the professional regulator initiated an investigation on its own. The law society did not receive complaints about Groia’s behaviour from any party involved, including the trial judge, Justice Peter Hryn, Cherniak said.
At the disciplinary hearing, Cherniak said the law society “called no witnesses, not even the prosecutors who were said to be the object of the (law society’s) complaint” against Groia. Cherniak ar- gued that the law society is “secondguessing the trial judge,” whose duty it is to control lawyers’ behaviour in the court and impose sanctions — or complaint to the law society — if necessary.
The judges on the panel challenged this point, describing the main sanction judges have at their disposal — citing a lawyer for contempt — as a blunt instrument.
Felderhof’s trial was acrimonious, and led the securities commission to apply to the Ontario Court of Appeal for a new trial judge. That court criticized Groia but the application was dismissed.
In his submissions to the judicial review, Cherniak noted that appeal court Justice Archie Campbell observed that “neither side in this case (had) any monopoly over incivility or rhetorical excess.”
Cherniak, who finished his submissions on Thursday, told the court, “There is something terribly wrong with the picture we just drew.”
But Curry countered, “The narrative advanced by Groia is inaccurate, selective and highly sanitized and stands at odds with the historical record of proceedings.”
The law society continues with its submissions on Friday.