Civility in the Court Room: Digging into the Groia decisions

Civility in the legal profession. Some think of it as a nod to archaic forms that uphold classist underpinnings of the profession. Some think of it as the best thing about Canadian lawyers, their respect for one another and the court. Some think of it as a state body limiting the lawyer’s free expression and ability to advocate for clients. Whatever your opinion is, civility is an immoveable tenet of the Rules of Professional Conduct, and it continually raises debate. What is it? What is its role? What kind of conduct reaches the level of incivility?

On Thursday, Sept. 20th, Osgoode Professional Development is offering a webinar to address these questions. In 75 minutes, civil litigator and defence counsel Lorne Sabsay of Sabsay Lawyers and Assistant Crown Attorney Helen How of the Ministry of the Attorney General (Ontario) will cover the key points, implications and consequences of the Supreme Court of Canada’s first-ever decision on civility in the courtroom. Participants will get an efficient run-down of these topics:

· Overview of the Court’s recent decision in Groia v. Law Society of Upper Canada;

· The Court’s test for determining when uncivil courtroom conduct becomes professional misconduct; and

· How the decision affects the roles of prosecutors and defence counsel.

Let’s review. Some big questions arose out of Joe Groia’s conduct and the cases that followed. When a judge intervenes and advises counsel to alter their manners, does that cloud the perception of impartiality? If the Law Society of Ontario (“LSO”) dictates the threshold between zealous advocacy and incivility, does that mean that it’s a state actor, rather than the individual lawyer, that determines how a trial goes? If lawyers must concern themselves with the bounds of civility, does that force them to de-prioritize fighting for their clients?

The Court of Appeal affirmed the LSO’s jurisdiction to discipline lawyers for in-court conduct and specifically to discipline Groia. However, dissenting Court of Appeal judge David Brown wrote, “The trial judge is the person best placed to determine whether a barrister’s conduct is approaching or has crossed over the all-too-grey line that separates zealous advocacy from impermissible courtroom conduct.”

In the fall of 2009, the LSO began a proceeding against John Felderhof’s defence lawyer, Joe Groia, “alleging that he’d been guilty of professional misconduct in his defence of Felderhof by, among other things, relentlessly attacking OSC prosecutors, both professionally and personally,” in the summary of Michael Ganley for Canadian Lawyer MagazineA disciplinary panel of the LSO found Groia guilty of incivility, suspended his licence to practise for two months and ordered him to pay costs of $247,000. On appeal, those penalties came down to one month and $200,000; but, the Ontario trial court and Court of Appeal upheld Groia’s guilt of professional misconduct.

Then, the Supreme Court of Canada allowed Groia’s appeal in a landmark 6-3 decision, written by Justice Michael Moldaver, a former criminal defence lawyer. Eight out of 9 judges in Groia v. Law Society of Upper Canada 2018 SCC 27 expressly endorsed the multi-factored, “flexible and precise” approach to determining lawyer incivility, which the LSO devised. It’s a “context-specific inquiry, rather than a stand-alone test and rigid definition,” according to the recap of Cristin Schmitz in The Lawyer’s Daily.

Justice Moldaver articulated a series of contextual factors to be considered when evaluating a lawyer’s conduct. On Sept. 20th, Sabsay and How will give the overview of these factors, as well as apply them to specific fact scenarios.

Lawyers have an important duty to zealously advocate for clients’ interests, and the Supreme Court has made it clear that it will be a rare thing for the court to criticize a defence lawyer for doing that job. Lawyers now have a clear statement from Canada’s highest court that they need not watch their backs while they do their jobs as zealously as they can.

In Osgoode’s dynamic program on Sept. 20th, participants will also get to engage in the issues through case scenarios involving potentially improper or aggressive conduct across various practice areas. This vigorous CPD qualifies for 75 minutes professional training for the LSO requirements.