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Appellate, Criminal

Rosen: SCC affirms counsel's right to 'fearless advocacy' in Groia case

The Supreme Court of Canada (SCC) has reaffirmed the right of counsel to engage in fearless advocacy by quashing a finding of professional misconduct against a lawyer, Toronto criminal lawyer John Rosen tells AdvocateDaily.com. 

“It’s a very important decision,” says Rosen, founder of Rosen & Company Barristers. 

“The court reinforced the importance of criminal defence lawyers in the justice system. Rather than looking for ways to stifle fearless advocacy the court is basically saying, ‘Take a go-slow approach before getting the regulators involved.’” 

The SCC overturned a Law Society of Ontario Appeal Panel finding of professional misconduct against Toronto lawyer Joseph Groia.

The case stemmed from the lawyer's courtroom behaviour while defending a former director of Bre-X Minerals Ltd. After the Canadian mining company collapsed amid fraudulent gold discovery claims, the Ontario Securities Commission (OSC) charged the director with insider trading and authorizing misleading news releases. He was ultimately acquitted of all charges.

“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,” Justice Michael Moldaver wrote for the Supreme Court majority, which ruled 6-3 in Groia’s favour.

The law society appeal panel found Groia guilty of professional misconduct, holding that his repeated personal attacks on OSC prosecutors lacked a reasonable basis.

But that finding was in itself unreasonable, Moldaver writes.

“Even though the appeal panel accepted that [Groia'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,” Moldaver says.

“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," the judge notes in the decision.

“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,” Moldaver writes.

Rosen notes that Moldaver stresses that 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. 

Fearless advocacy, as the SCC points out, frequently requires criminal defence lawyers to criticize the way state actors do their jobs, including allegations of unconstitutional search, detention or arrest and serious allegations of prosecutorial misconduct, Rosen says. 

And a key point Moldaver makes is that inquiring into the legal merit of a lawyer’s position to conclude that his or her allegations lacked a reasonable basis would discourage lawyers from raising well-founded assertions, Rosen adds.

“What he’s saying is defence lawyers play an integral role in preventing dire consequences by holding other justice participants accountable by raising reasonable allegations,” he says.

“And we measure the reasonableness of those allegations, not after the fact, but based on whether a lawyer had an honest even though perhaps mistaken legal position — but a good faith position — for raising the allegation. And to stifle that would be to frustrate the defence counsel’s role.” 

Moldaver distinguishes between incompetency and incivility, Rosen notes. The court says that a lawyer who bases allegations on outrageous or egregious legal errors may be incompetent but shouldn’t be punished for incivility on that basis alone, Rosen explains.

“In other words, if you have a lawyer who honestly but mistakenly believes the law is a certain way when he makes an allegation of prosecutorial misconduct, police misconduct, bias of the court, or any number of things involving other justice participants, you don’t claim that he or she is acting with incivility, especially if the lawyer has a good-faith basis or believes they have a good-faith basis,” Rosen says.  

In retrospect, a lawyer may show gross incompetence, but that’s different from incivility, Rosen says. “And Justice Moldaver makes that distinction very well. And I think that’s a point that people miss because many people jump to the conclusion that incivility shows incompetence. While that might be true sometimes, it completely depends on the different contexts.”

It’s interesting to note that the decision applies as much to the civil bar as the criminal bar, Rosen says.

In the civil bar, incivility is a serious issue because lawyers frequently engage in out-of-court conduct — nasty letters and snide hallway comments — for which there is little accountability, he adds.

“The difference between civil and criminal practice is that for criminal lawyers we’re always held accountable because we’re always in the courtroom,” he says.

Had the court upheld the finding of professional misconduct against Groia, criminal defence lawyers would have been looking over their shoulders whenever they launched difficult motions, wondering if they would be deemed to be acting unreasonably, Rosen says. 

The decision is significant, not just for defence counsel but for prosecutors as well because they may also face claims of aberrant conduct, he adds.

“It’s important because everybody in the justice system is accountable. Everybody can be called out by an opposing party. As long as it’s done on a good faith basis in front of an impartial arbiter, the system will come to a proper decision without the need to involve the regulators," Rosen says. 

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