More than 14 years after the launch of the hard-fought trial of the geologist at the centre of the massive Bre-X Minerals Ltd. gold scandal, the prominent Bay Street lawyer who defended him is still fighting his profession's regulator over whether he broke its rules on "civility."
Joe Groia, who successfully defended Bre-X geologist John Felderhof against insider trading and other charges in an acrimonious trial that began in 2000, goes before the Ontario Divisional Court on Thursday to challenge a decision by the Law Society of Upper Canada's discipline appeal panel.
He was originally found to have violated the profession's rules during the Bre-X trial in a 2011 disciplinary ruling. In a 2013 decision, an appeal panel agreed, but reduced to one month a two-month suspension he was facing. It also cut the legal bill that Mr. Groia had been ordered to pay to $200,000 from $247,000.
In Divisional Court on Thursday, Mr. Groia's lawyer, veteran litigator Earl Cherniak, will argue that the Law Society's case against Mr. Groia undermines the independence of the courts.
In written submissions, Mr. Groia argues that since the trial judge in question never complained or sanctioned his behaviour at the Felderhof trial, the Law Society is overstepping its bounds by trying to police courtroom conduct. He also argues that the Law Society wrongly interfered with his "freedom of speech" in defending his client, and calls the regulatory body's standards of civility "nebulous."
It's a case that has captivated many in the legal profession, and prominent defence lawyers – including the late Edward Greenspan – have argued that pursuing cases such as Mr. Groia's threatens to cause a "chilling effect" for defence counsel who will fear that zealous advocacy could be second-guessed by the Law Society, even if the judge they are facing raises no objection to their behaviour. The Criminal Lawyers Association, the Canadian Civil Liberties Association and the Advocates Society have all intervened in the case on Mr. Groia's behalf.
The sensational Bre-X fraud, which saw investors lose $6-billion after it emerged that drilling results were faked at an Indonesian gold find, shook Bay Street in the 1990s. But the high-profile trial of Mr. Felderhof – the only person to face charges in the case – ground to a halt almost as soon as it began as Mr. Groia and prosecutors for the Ontario Securities Commission engaged in a bitter feud over the admissibility of certain documents.
The OSC would later try to have the trial judge, Justice Peter Hryn, removed, accusing him of favouring Mr. Groia and allowing the trial to descend into a "procedural nightmare." Other judges, in two scathing rulings on that issue, would deny the OSC's request to remove Justice Hryn but still strongly condemn Mr. Groia's attacks on OSC prosecutors, whom he had repeatedly accused of trying to convict Mr. Felderhof "at all costs." Mr. Groia also used "unrestrained invective" and engaged in "guerrilla theatre," those rulings found.
Based on those judges' findings, a Law Society discipline panel found Mr. Groia guilty of breaking its rules on civility. Mr. Groia appealed, and an appeal panel, while still finding he had violated the rules, tossed out the Law Society's position that Mr. Groia was not even entitled to defend himself against criticisms levelled in previous court rulings.
In its written submissions to the Divisional Court before Thursday's hearing, the Law Society argues that there is no reason to interfere with findings that Mr. Groia's "personal attacks" on the OSC during the trial violated the legal profession's rules and had "no reasonable basis." It also dismisses any concern that regulating civility will "chill" defence lawyers.
The Law Society argues that it is well within its rights to police a lawyer's courtroom behaviour, allowing trial judges to focus on the search for the truth of a case.
"It would be an abrogation of the Law Society's legislative duty to fail to regulate conduct of lawyers in court," the Law Society submission by lawyer Thomas Curry reads. "Subjecting in-court conduct to the disciplinary jurisdiction of the Law Society in no way impacts upon the independence of the judiciary."
What he said
There is little question that the first 70 days of the trial of former Bre-X Minerals Ltd. geologist John Felderhof, which launched in 2000, were acrimonious.
But Mr. Felderhof's lawyer, Joe Groia, found himself accused of "incivility" by the Law Society of Upper Canada not for any individual remark, but for a pattern of repeated "personal attacks" on prosecutors for the Ontario Securities Commission, whom he accused of engaging in "prosecutorial misconduct" for seeking a conviction in the high-profile case "at any cost."
The Law Society's appeal panel concluded in 2013 that there was no evidence to back up what it says amounted to a "relentless personal attack" on the prosecutors integrity.
Judges asked to rule on an OSC motion in 2001 to ditch the trial judge in the case said Mr. Groia had engaged in "sarcastic attacks" and "guerrilla threatre." Mr. Groia has countered that lawyers for the OSC also made heated comments.
Outsiders to the 14-year-long fight may find much of it strange. For example, the Law Society appeal panel's decision finds that Mr. Groia's repeated use of the word "government" to describe the OSC, an Ontario government agency, was used "as a way of casting aspersions on opposing counsel without a reasonable basis to do so."
Among Mr. Groia's remarks at the Bre-X trial singled out by the Law Society were rhetorical flourishes that the OSC's promises "aren't worth the transcript paper that they appear to be written on" and were "nonsensical." He also accused prosecutors of being "too lazy" to hand over documents he was demanding, and of using a "conviction filter" to determine what evidence should be admitted.