An Ontario Securities Commission prosecutor was “belligerent” and “hostile” early in the Bre-X trial, lawyer Joe Groia told a Law Society of Upper Canada discipline panel on Friday, defending himself against charges that he engaged in “incivility” in the high-profile court battle a decade ago.
Mr. Groia, a well-known figure on Bay Street, spent a second day in the witness chair Friday. He faces anything from a reprimand to the revocation of his licence to practice if a three-member Law Society panel decides he violated the profession’s rules.
Largely reading from transcripts, Mr. Groia, 56, told the hearing that the trial of his client, former Bre-X Minerals Ltd. chief geologist John Felderhof, hit a “turning point” on its fourth day back in October, 2000.
Mr. Groia recalled that during a back-and-forth between himself, OSC lawyer Ian Smith and the judge, Mr. Justice Peter Hryn, OSC lawyer Jay Naster suddenly intervened. “He jumped up, he rushed to the front of the courtroom,” Mr. Groia said, adding that Mr. Naster’s comments “were delivered in a very belligerent and very hostile tone of voice.”
At issue was a lengthy and aggressive cross-examination by Mr. Smith of one of Mr. Groia’s junior lawyers, who had compiled an affidavit of letters between the OSC and Mr. Felderhof’s legal team. The letters were exchanged in their fight over whether the OSC had disclosed all of its relevant documents.
At the law society hearing this week, Nicholas Richter, another lawyer who worked on the Bre-X case, described the cross-examination as “horrifying” in its intensity.
Judge Hryn later ordered the OSC to hand over the missing documents to the defence. Mr. Felderhof was ultimately acquitted of Ontario Securities Act charges of illegal insider trading and releasing misleading information in the case, which centred around gold samples from a potential mine in Indonesia that had been tampered with.
During the trial, Mr. Groia alleged that the OSC was engaging in “prosecutorial misconduct,” unfairly going after his client and looking strictly for information that could help convict Mr. Felderhof.
To back up this contention on Friday, Mr. Groia focused on transcripts from early in the trial, going over his examination of then-OSC spokesman Frank Switzer, questioning him about a comment he made to the media outside the court on the trial’s first day. “Our goal is simply to seek a conviction on the charges we have laid,” Mr. Switzer told reporters that day, in a phrase repeated often in the trial.
Mr. Groia told the law society panel that the phrase, and the fact that it was never retracted by the OSC, showed that the commission had a “win-at-all-costs” approach.
Earlier Friday, Mr. Groia’s lawyer, Earl Cherniak, called as a witness University of Calgary law professor Alice Woolley, an outspoken critic of the so-called “civility movement” in legal circles who teaches legal ethics.
Prof. Woolley told the hearing that prosecutors have a special responsibility not to engage in “tunnel vision,” and gun only for a conviction. They should instead work toward seeing justice served fairly.
But defence lawyers, and especially criminal defence lawyers, have a duty of “zealous advocacy,” she said. Enforcing a concept of “civility,” however, can require lawyers “to draw too fine a line,” she told the panel.