Joseph Peter Paul Groia Appellant v. Law Society of Upper Canada, 2018 SCC 27

SUPREME COURT OF CANADA Citation: Groia v.

Law Society of Upper Canada, 2018 SCC 27, [2018] 1 S.C.R. 772 Appeal Heard: November 6, 2017 Judgment Rendered: June 1, 2018 Docket: 37112 Between: Joseph Peter Paul Groia Appellant and Law Society of Upper Canada Respondent - and - Director of Public Prosecutions, Attorney General of Ontario, Attorney General of Saskatchewan, Law Society Tribunal, Advocates’ Society, Barreau du Québec, Canadian Civil Liberties Association, British Columbia Civil Liberties Association, Independent Criminal Defence Advocacy Society, Federation of Law Societies of Canada, Ontario Crown Attorneys’ Association, Ontario Trial Lawyers Association, Canadian Bar Association and Criminal Lawyers’ Association of Ontario Interveners Coram: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ.

Reasons for Judgment: (paras. 1 to 161) Moldaver J. (McLachlin C.J. and Abella, Wagner and Brown JJ. concurring) Concurring Reasons: (paras. 162 to 174) Côté J. Dissenting Reasons: (paras. 175 to 233) Karakatsanis, Gascon and Rowe JJ.

Groia v. Law Society of Upper Canada, 2018 SCC 27, [2018] 1 S.C.R. 772 Joseph Peter Paul Groia Appellant v.

Law Society of Upper Canada Respondent and Director of Public Prosecutions, Attorney General of Ontario, Attorney General of Saskatchewan, Law Society Tribunal, Advocates’ Society, Barreau du Québec, Canadian Civil Liberties Association, British Columbia Civil Liberties Association, Independent Criminal Defence Advocacy Society, Federation of Law Societies of Canada, Ontario Crown Attorneys’ Association, Ontario Trial Lawyers Association, Canadian Bar Association and Criminal Lawyers’ Association of Ontario Interveners Indexed as: Groia v.

Law Society of Upper Canada 2018 SCC 27 File No.: 37112. 2017: November 6; 2018: June 1. Present: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ. on appeal from the court of appeal for ontario Law of professions — Discipline — Barristers and solicitors — In-court incivility — Law Society bringing disciplinary proceedings against lawyer based on uncivil behaviour during trial — Lawyer found guilty of professional misconduct by disciplinary tribunal — Approach for assessing whether in-court incivility amounts to professional misconduct — Whether decision reasonable.

Administrative law — Appeals — Standard of review — Law Society disciplinary tribunal — Standard of review applicable to Law Society’s decision finding lawyer guilty of professional misconduct for in-court incivility . G, a lawyer, was hired by F to defend him against charges of insider trading and authorizing misleading news releases brought against him by the Ontario Securities Commission (“OSC”).

F’s trial was characterized by a pattern of escalating acrimony and by a series of disputes between G and the OSC prosecutors, which included personal attacks, sarcastic outbursts and allegations of professional impropriety made by G. In particular, the OSC prosecutors and G disagreed over the scope of the OSC’s disclosure obligations and the format of such disclosure, as well as over the admissibility of documents. Much of the disagreement stemmed from G’s honest but mistaken understanding of the law of evidence and the role of the prosecutor.

During the trial, despite the frequency and fervor of the dispute, the trial judge initially adopted a hands-off approach, but he finally directed G to stop repeating his misconduct allegations. G largely followed the trial judge’s directions. Evidentiary disputes were eventually resolved and the trial was completed, with F being acquitted on all charges. After F’s trial, the Law Society brought disciplinary proceedings against G on its own motion, alleging professional

misconduct based on his uncivil behaviour during the trial. A three-member panel of the Law Society Hearing Panel found G guilty of professional misconduct, suspended his licence to practice law for two months and ordered him to pay nearly $247,000 in costs. On appeal by G, the Law Society Appeal Panel also concluded that G was guilty of professional misconduct, but it reduced G’s suspension to one month and decreased the costs award against him to $200,000.

In its decision, the Appeal Panel developed a multi-factorial, context-specific approach for assessing whether in-court incivility amounts to professional misconduct. The Divisional Court upheld the Appeal Panel’s decision as reasonable. A majority of the Court of Appeal dismissed G’s further appeal. Held (Karakatsanis, Gascon and Rowe JJ. dissenting): The appeal should be allowed. Per McLachlin C.J. and Abella, Moldaver, Wagner and Brown JJ.: The Appeal Panel’s decision should be reviewed for reasonableness.

This Court’s decisions establish that a reasonableness standard applies to law society misconduct findings and sanctions. Moreover, post- Dunsmuir jurisprudence has firmly entrenched the notion that decisions of specialized administrative bodies interpreting their own statute or statutes closely connected to their function are entitled to deference from courts, and are thus presumptively reviewed for reasonableness.

That presumption applies here: the Appeal Panel’s approach to determining when incivility amounts to professional misconduct and its application of that approach in assessing a lawyer’s conduct involve an

interpretation of the Rules of Professional Conduct enacted under its home statute and the discretionary application of general principles to the facts before it. The presumption of deference is not rebutted. Determining when in-court behaviour amounts to professional misconduct does not fall under the category of questions of central importance to the legal system as a whole and outside the decision-maker’s expertise, for which correctness review would be appropriate.

Although the permissible scope of lawyers’ behaviour is arguably of central importance to the legal system as a whole, it cannot be said that assessing whether incivility amounts to professional misconduct is outside the Law Society’s expertise. To the contrary, law society disciplinary tribunals have significant expertise regulating the legal profession, and Law Society disciplinary panels are composed, in part, of other lawyers, who are aware of the problems and frustrations that confront a practitioner.

Furthermore, a deferential standard of review does not threaten a trial judge’s power to control his or her courtroom. A trial judge is free to control the conduct in his or her courtroom irrespective of the degree of deference accorded to a law society’s disciplinary decision by a different court. The fact that the behaviour occurs in a courtroom is an important contextual factor that must be taken into account when evaluating whether that behaviour amounted to professional misconduct; but it does not impact on the standard of review.

The multi-factorial, context-specific approach developed by the Appeal Panel for assessing whether a lawyer’s in-court behaviour crosses the line into professional misconduct on the basis of incivility is appropriate. First, the Appeal Panel recognized the importance of civility to the legal profession and the corresponding need to target behaviour that detrimentally affects the administration of justice and the fairness of a particular proceeding.

At the same time, it remained sensitive to the lawyer’s duty of resolute advocacy — a duty of particular importance in the criminal context because of the client’s constitutional right to make full answer and defence. The Appeal Panel recognized the need to develop an approach that would avoid a chilling effect on the kind of fearless advocacy that is at times necessary to advance a client’s cause. Second, the Appeal Panel developed an approach that is both flexible and precise.

A rigid definition of when incivility amounts to professional misconduct in the courtroom is neither attainable nor desirable; rather, determining whether a lawyer’s behaviour warrants a finding of professional misconduct must remain a context-specific inquiry that is flexible enough to assess behaviour arising from the diverse array of situations in which lawyers find themselves. Yet, standards of civility must be articulated with a reasonable degree of precision.

The Appeal Panel’s approach strikes a reasonable balance between flexibility and precision: it sets a reasonably precise benchmark that instructs lawyers as to the permissible bounds of ethical courtroom behaviour, by articulating a series of contextual factors — what the lawyer said, the manner and frequency in which it was said, and the presiding judge’s reaction to the lawyer’s behaviour — that ought generally to be considered when evaluating a lawyer’s conduct, and by describing how those factors operate when assessing a lawyer’s behaviour.

With respect to what the lawyer said, while not a standalone “test”, the Appeal Panel determined that prosecutorial misconduct allegations, or other challenges to opposing counsel’s integrity, cross the line into professional misconduct unless they are made in good faith and have a reasonable basis. Requiring a reasonable basis for allegations protects against unsupportable attacks that tarnish opposing counsel’s reputation without chilling resolute advocacy. However, the reasonable basis requirement is not an exacting standard.

It is not professional misconduct on account of incivility 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, such that if the legal position were correct, the challenge would be warranted. Nor is it professional misconduct to advance a novel legal argument that is ultimately rejected by the court. The good faith inquiry asks what the lawyer actually believed when making the allegations.

In contrast, the “reasonable basis” inquiry requires a law society to look beyond what the lawyer believed, and examine the foundation underpinning the allegations. Looking at the reasonableness of a lawyer’s legal position at this stage would, in effect, impose a mandatory minimum standard of legal competence in the incivility context — this would allow a law society to find a lawyer guilty of professional misconduct on the basis of incivility for something the lawyer, in the law society’s opinion, ought to have known or ought to have done.

This would risk unjustifiably tarnishing a lawyer’s reputation and chilling resolute advocacy. With respect to the frequency of what was said and the manner in which it was said, the Appeal Panel noted that, as a general rule, repetitive personal attacks and those made using demeaning, sarcastic, or otherwise inappropriate language are more likely to warrant disciplinary action. As for the presiding judge’s reaction to the lawyer’s behaviour, when the impugned behaviour occurs in a courtroom, what, if anything, the judge does about it and how the lawyer modifies his or her behaviour thereafter becomes relevant.

Finally, the Appeal Panel’s approach also allows law society disciplinary tribunals to proportionately balance the lawyer’s expressive freedom with its statutory mandate in any given case. The flexibility built into the Appeal Panel’s context-specific approach to assessing a lawyer’s behaviour allows for a proportionate balancing in any given case. Considering the unique circumstances in each case enables law society disciplinary tribunals to accurately gauge the value of the impugned speech.

This, in turn, allows for a decision, both with respect to a finding of professional misconduct and any penalty imposed, that reflects a proportionate balancing of the lawyer’s expressive rights and the Law Society’s statutory mandate.

Although the approach that it set out was appropriate, the Appeal Panel’s finding of professional misconduct against G on the basis of incivility was unreasonable. First, even though the Appeal Panel accepted that G’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.

The Appeal Panel acknowledged that submissions made on the basis of a sincerely held but erroneous legal belief cannot ground a finding of professional misconduct, and accepted that in making his allegations of impropriety against the OSC prosecutors, G was not deliberately misrepresenting the law and was not ill-motivated. Despite this, the Appeal Panel used G’s legal errors to conclude that he had no reasonable basis for his repeated allegations of prosecutorial impropriety. Such a finding was not reasonably open to the Appeal Panel.

Allegations of prosecutorial misconduct based on a sincerely held but mistaken legal belief will be reasonably based as long as they have a sufficient factual foundation. The question for incivility purposes is not whether G was right or wrong on the law; rather, the question is whether, based on his understanding of the law, his allegations of prosecutorial misconduct, which the Appeal Panel found were made in good faith, had a factual foundation. In this case, they did. G’s legal errors, coupled with the OSC prosecutors’ conduct, provided the reasonable basis for his allegations.

Accordingly, based on the Appeal Panel’s own approach, G’s allegations were made in good faith and they were reasonably based. Second, the other contextual factors in this case could not reasonably support a finding of professional misconduct against G on the basis of incivility. The evolving abuse of process law at the time accounts, at least in part, for the frequency of G’s allegations; the presiding judge took a passive approach in the face of G’s allegations; and G’s behaviour changed in response to the directions of the trial judge.

The Appeal Panel failed to account for these contextual factors in its analysis. The only conclusion that was reasonably open to the Appeal Panel on the record before it was a finding that G was not guilty of professional misconduct. Because G, in the circumstances of this case, could not reasonably be found guilty of professional misconduct, the complaints against him are dismissed and there is no need to remit the matter to the Law Society.

Per Côté J.: There is agreement with the majority that the Appeal Panel erred in finding that G committed professional misconduct and that there is no need to remit the matter back to the Law Society. However, there is disagreement as to the applicable standard of review. The Appeal Panel’s finding of professional misconduct is reviewable on the correctness standard on the basis that the impugned conduct occurred in a courtroom. Applying the approach set out in Dunsmuir , this Court’s existing jurisprudence does not dictate the standard of review in this appeal.

T he context of this case is different in one critical — and dispositive — respect: the impugned conduct occurred before a judge in open court. The fact that the relevant conduct occurred in a court of law implicates constitutional imperatives about the judiciary’s independence and its capacity to control its own processes, and rebuts the presumption of reasonableness. Correctness review is required because the Law Society’s inquiry into in-court professional misconduct engages the contours of the constitutional relationship between the courts and government regulators.

Judicial independence is, without question, a cornerstone of Canadian democracy. It is essential to both the impartiality of the judiciary and the maintenance of the rule of law. An inquiry by a law society into a lawyer’s in-court conduct risks intruding on the judge’s function of managing the trial process and his authority to sanction improper behaviour.

To protect judicial independence, and the authority of judges to manage the proceedings before them in the manner they see fit, the judiciary — not a regulatory body, a creature of the political branches of government — should have the final say over the appropriateness of a lawyer’s conduct in that sphere. The reasonableness standard of review, which requires judicial deference to a law society’s disciplinary determinations, is inconsistent with this prerogative. Therefore, correctness review is required to ensure proper respect for the judiciary’s constitutionally guaranteed place in our democracy.

Per Karakatsanis, Gascon and Rowe JJ. (dissenting): There is agreement with the majority that reasonableness is the applicable standard of review. The simple fact that a lawyer’s behavior occurs in the courtroom does not deprive the Law Society of its legitimate role in regulating the profession nor does it justify heightened judicial scrutiny. There is also agreement with the majority that, in articulating a standard of professional misconduct, the Appeal Panel reasonably set out a contextual approach which will vary according to the particular factual matrix in which it is applied.

However, the majority’s disposition in this appeal is disagreed with. The Appeal Panel’s decision was reasonable and there is no basis to interfere. Accordingly, the appeal should be dismissed. The majority fundamentally misstates the Appeal Panel’s approach to professional misconduct and reweighs the evidence to reach a different result. This is inconsistent with reasonableness review as it substitutes the Court’s judgment for that of the legislature’s chosen decision maker. Where, as here, the standard of review analysis leads to the application of reasonableness, deference is not optional.

Deference bars a reviewing court from conducting an exacting criticism of a decision in order to reach the result that the decision was unreasonable. It follows that a reviewing court also cannot supplement the decision maker’s reasoning for the purpose of undermining it. Neither may a court reweigh evidence or contextual factors considered by the decision maker. At all times, the starting point of reasonableness review is the reasons for the decision under review. There is no basis on this record to interfere with the Appeal Panel’s decision.

Its analysis was cogent, logical, transparent and grounded in the evidence. A reviewing court should give effect to the Appeal Panel’s decision to adopt an approach with both subjective and objective considerations (i.e. to require good faith and a reasonable basis for allegations of prosecutorial misconduct or that impugn the integrity of an opponent). It was open to the Appeal Panel to consider both the factual and legal bases for the allegations at issue, and to conclude that there was no reasonable basis in fact or in law for G’s allegations.

The Appeal Panel’s mandate permits it to determine any question of fact or law that arises in a proceeding before it. As such, the Appeal Panel was entitled to consider whether there is a reasonable basis for the allegations. Reasonableness, as opposed to good faith, implies consideration of whether the allegations, objectively, had a legal or factual basis. The Appeal Panel’s approach is justified by the serious consequences that irresponsible attacks can have on opposing counsel’s reputation as well as the public perception of the justice system.

Collapsing the subjective and objective elements of this approach restricts the Appeal Panel’s ability to assess the reasonableness of legal submissions to determining whether the lawyer was acting in good faith. It was open to the Appeal Panel to hold that a lawyer who erroneously alleges prosecutorial misconduct or impugns the integrity of opposing counsel should not be shielded from professional sanction because of his or her own incompetence.

In determining whether G’s allegations crossed the line into professional misconduct, the Appeal Panel applied its expertise and decided how to assess the evidence as a whole. It was open to the Appeal Panel to weigh the evidence in the way it did. Its findings were amply supported by the record, as were its conclusions on the cumulative effects of G’s conduct. Ultimately, the reasons supported

the Appeal Panel’s conclusion that G was engaged in professional misconduct. Both the evidentiary foundation and the logic of thereasons were sound. The decision was justifiable, intelligible, and transparent and fell within the range of reasonable outcomes. The Appeal Panel’s decision also proportionately balanced the value of freedom of expression with its mandate to ensurethat lawyers conduct themselves professionally. The Appeal Panel was alert to the importance of lawyers’ expressive freedoms and thecritical role of zealous advocacy in our system.

In order to ensure that these principles were limited no more than necessary, the AppealPanel adopted a contextual approach that took into account the dynamics of the courtroom setting. It was reasonable for the AppealPanel to conclude that in the context of this trial, zealous advocacy did not require G to make unfounded allegations of prosecutorialmisconduct, to impugn the integrity of his opponents or to frequently resort to invective when describing them.

There are a number of concerns about the implications that follow from the majority’s decision: they immunize erroneousallegations from sanction by the Law Society, validate improper conduct and threaten to undermine the administration of justice and theculture change that the Court has called for in recent years. Moreover, setting aside the decision of the Appeal Panel has the potential toundermine the ability of law societies to promote the efficient resolution of disputes. Law societies are important actors in the culturechange that is needed.

Their decisions respecting professional misconduct should be approached with deference. Cases Cited By Moldaver J. Applied: Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247; Doré v. Barreau du Québec, 2012SCC 12, [2012] 1 S.C.R. 395; referred to: R. v. Felderhof, 2007 ONCJ 345, 224 C.C.C. (3d) 97; R. v. Felderhof, ,aff’d (2003), (ON CA), 68 O.R. (3d) 481; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R 190; CanadianNational Railway Co. v. Canada (Attorney General), 2014 SCC 40, [2014] 2 S.C.R. 135; Edmonton (City) v.

Edmonton East (Capilano)Shopping Centres Ltd., 2016 SCC 47, [2016] 2 S.C.R. 293; Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2S.C.R. 3; McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895; R. v. McClure, 2001 SCC 14, [2001]1 S.C.R. 445; Green v. Law Society of Manitoba, 2017 SCC 20, [2017] 1 S.C.R. 360; Canadian National Railway Co. v. McKercherLLP, 2013 SCC 39, [2013] 2 S.C.R. 649; Re Stevens and Law Society of Upper Canada (1979), (ON SC), 55 O.R.(2d) 405; Beauregard v. Canada, (SCC), [1986] 2 S.C.R. 56; Valente v.

The Queen, (SCC), [1985] 2S.C.R. 673; Marchand (Litigation Guardian of) v. Public General Hospital Society of Chatham (2000), (ON CA), 51O.R. (3d) 97; Phillips v. Ford Motor Co. (1971), (ON CA), 18 D.L.R. (3d) 641; Canada (Attorney General) v.Federation of Law Societies of Canada, 2015 SCC 7, [2015] 1 S.C.R. 401; Quebec (Director of Criminal and Penal Prosecutions) v.Jodoin, 2017 SCC 26, [2017] 1 S.C.R. 478; Hill v. Church of Scientology of Toronto, (SCC), [1995] 2 S.C.R. 1130; R. v.Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167; R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659; R. v.

O’Connor, (SCC),[1995] 4 S.C.R. 411; Pappajohn v. The Queen, (SCC), [1980] 2 S.C.R. 120; R. v. Bulmer, (SCC),[1987] 1 S.C.R. 782; R. v. Moreau (1986), (ON CA), 26 C.C.C. (3d) 359; Histed v. Law Society of Manitoba, 2007MBCA 150, 225 Man. R. (2d) 74; Law Society of Upper Canada v. Wagman, 2008 ONLSAP 14; Brouillard v. The Queen, (SCC), [1985] 1 S.C.R. 39; R. v. Henderson (1999), (ON CA), 44 O.R. (3d) 628; Loyola High School v. Quebec(Attorney General), 2015 SCC 12, [2015] 1 S.C.R. 613; Irwin Toy Ltd. v.

Quebec (Attorney General), (SCC), [1989] 1S.C.R. 927; Montréal (City) v. 2952-1366 Québec Inc., 2005 SCC 62, [2005] 3 S.C.R. 141; R. v. Keegstra, (SCC),[1990] 3 S.C.R. 697; RJR-MacDonald Inc. v. Canada (Attorney General), (SCC), [1995] 3 S.C.R. 199; R. v. La, (SCC), [1997] 2 S.C.R. 680; R. v. Clement (2002), (ON CA), 166 C.C.C. (3d) 219; Giguère v. Chambredes notaires du Québec, 2004 SCC 1, [2004] 1 S.C.R. 3. By Côté J. Applied: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; distinguished: Law Society of New Brunswick v.Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247; Doré v.

Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395; referred to: McLean v.British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895; Rogers Communications Inc. v. Society of Composers,Authors and Music Publishers of Canada, 2012 SCC 35, [2012] 2 S.C.R. 283; Reference Re Remuneration of Judges of the ProvincialCourt of Prince Edward Island, (SCC), [1997] 3 S.C.R. 3; Beauregard v. Canada, (SCC), [1986] 2S.C.R. 56; Mackeigan v. Hickman, (SCC), [1989] 2 S.C.R. 796. By Karakatsanis, Gascon and Rowe JJ. (dissenting) Dunsmuir v.

New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Law Society of New Brunswick v. Ryan, 2003 SCC 20,[2003] 1 S.C.R. 247; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339; Dr. Q v. College of Physiciansand Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226; British Columbia (Workers’ Compensation Appeal Tribunal) v.Fraser Health Authority, 2016 SCC 25, [2016] 1 S.C.R. 587; Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1,[2002] 1 S.C.R. 3; Lake v.

Canada (Minister of Justice), 2008 SCC 23, [2008] 1 S.C.R. 761; Canada (Director of Investigation andResearch) v. Southam Inc., (SCC), [1997] 1 S.C.R. 748; Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R.395; Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29, [2016] 1 S.C.R. 770; R. v. Felderhof (2003), (ON CA),235 D.L.R. (4th) 131; R. v. Felderhof, ; R. v. Felderhof, ; R. v. Jordan, 2016 SCC 27, [2016] 1S.C.R. 631; Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87; R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659. Statutes and Regulations Cited Canadian Charter of Rights and Freedoms, ss. 2(b), 7.

Law Society Act, R.S.O. 1990, c. L.8, ss. 4.1, 4.2, 34(1), 49.35(1), 62(0.1)10. Professional Conduct Handbook made under the Law Society Act, R.S.O. 1980, c. 233 (effective January 30, 1987 to October 31, 2000). Rules of Professional Conduct made under the Law Society Act, R.S.O. 1990, c. L.8 (effective November 1, 2000 to September 30,

2014), rr. 2.01, 4.01(1), (6), 6.03(1). Rules of Professional Conduct made under the Law Society Act , R.S.O. 1990, c. L.8 (effective October 1, 2014 and updated September 28, 2017), rr. 2.1-1, 2.1-2, 3.1, 5.1-1, 5.1-5, 5.6-1, 7.2-1, 7.2-4. Authors Cited Code, Michael. “Counsel’s Duty of Civility: An Essential Component of Fair Trials and an Effective Justice System” (2007), 11 Can. Crim. L.R. 97. Cory, Peter deC. The Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Consideration of Entitlement to Compensation . Winnipeg: Manitoba Justice, 2001.

Dyzenhaus, David. “The Politics of Deference: Judicial Review and Democracy”, in Michael Taggart, ed., The Province of Administrative Law . Oxford: Hart, 1997, 279. Federation of Law Societies of Canada. Model Code of Professional Conduct (updated March 14, 2017), rule 5.1-1 commentary 1 (online: https://flsc.ca/wp-content/uploads/2018/03/Model-Code-as-amended-March-2017-Final.pdf; archived version: http://www.scc- csc.ca/cso-dce/2018SCC-CSC27_1_eng.pdf ).

Morden, John W. “Notes for Convocation Address — Law Society of Upper Canada, February 22, 2001”, in Law Society of Upper Canada, ed., Plea Negotiations: Achieving a “Win-Win” Result . Toronto: Law Society of Upper Canada, 2003, 1-1. Nagorney, Kara Ann. “A Noble Profession? A Discussion of Civility Among Lawyers” (1999), 12 Geo. J. Legal Ethics 815. Pue, W. Wesley. “Becoming ‘Ethical’: Lawyers’ Professional Ethics in Early Twentieth Century Canada”, in Dale Gibson and W. Wesley Pue, eds., Glimpses of Canadian Legal History . Winnipeg: Legal Research Institute of the University of Manitoba, 1991, 237.

Woolley, Alice. “Does Civility Matter?” (2008), 46 Osgoode Hall L.J. 175. Woolley, Alice. Understanding Lawyers’ Ethics in Canada , 2nd ed. Toronto: LexisNexis, 2016. APPEAL from a judgment of the Ontario Court of Appeal (MacPherson, Cronk and Brown JJ.A.), 2016 ONCA 471 , 131 O.R. (3d) 1, 352 O.A.C. 210, 358 C.R.R. (2d) 1, 1 Admin L.R. (6th) 175, [2016] O.J.

No. 3094 (QL), 2016 CarswellOnt 9453 (WL Can.), affirming a decision of the Divisional Court (Sachs, Nordheimer and Harvison Young JJ.), 2015 ONSC 686 , 124 O.R. (3d) 1, 330 O.A.C. 202, 382 D.L.R. (4th) 337, [2015] O.J No. 444 (QL), 2015 CarswellOnt 1238 (WL Can.), which affirmed a decision of the Law Society Appeal Panel, 2013 ONLSAP 41 , [2013] L.S.D.D. No. 186 (QL), 2013 CarswellOnt 19188 (WL Can.), which affirmed in part a decision of the Law Society Hearing Panel, 2012 ONLSHP 94 , [2012] L.S.D.D. No. 92 (QL) . Appeal allowed, Karakatsanis, Gascon and Rowe JJ. dissenting. Earl A.

Cherniak , Q.C. , and Martin Mendelzon , for the appellant. J. Thomas Curry , Jaan E. Lilles and Andrew M. Porter , for the respondent. James D. Sutton and Allyson Ratsoy , for the intervener the Director of Public Prosecutions. Milan Rupic , for the intervener the Attorney General of Ontario. Sharon H. Pratchler , Q.C. , for the intervener the Attorney General of Saskatchewan. Lisa Mallia , for the intervener the Law Society Tribunal. Terrence J. O’Sullivan , Deborah C. Templer and Matthew R. Law , for the intervener the Advocates’ Society. André-Philippe Mallette , for the intervener Barreau du Québec.

Cara Zwibel , for the intervener the Canadian Civil Liberties Association. Joseph J. Arvay , Q.C. , and Catherine George , for the interveners the British Columbia Civil Liberties Association and the Independent Criminal Defence Advocacy Society. Gregory DelBigio , Q.C. , and Alison M. Latimer , for the intervener the Federation of Law Societies of Canada. Paul Cavalluzzo and Adrienne Telford , for the intervener the Ontario Crown Attorneys’ Association. Allan Rouben , Thomas Connolly and Darcy Romaine , for the intervener the Ontario Trial Lawyers Association. Pierre Bienvenu , Andres C.

Garin and Jean-Christophe Martel , for the intervener the Canadian Bar Association. Frank Addario , Samara Secter and Robin Parker , for the intervener the Criminal Lawyers’ Association of Ontario. The judgment of McLachlin C.J. and Abella, Moldaver, Wagner and Brown JJ. was delivered by Moldaver J. —

I. Overview [1] The trial process in Canada is one of the cornerstones of our constitutional democracy. It is essential to themaintenance of a civilized society. Trials are the primary mechanism whereby disputes are resolved in a just, peaceful, and orderly way. [2] To achieve their purpose, it is essential that trials be conducted in a civilized manner.

Trials marked by strife,belligerent behaviour, unwarranted personal attacks, and other forms of disruptive and discourteous conduct are antithetical to thepeaceful and orderly resolution of disputes we strive to achieve. [3] By the same token, trials are not — nor are they meant to be — tea parties. A lawyer’s duty to act with civility doesnot exist in a vacuum. Rather, it exists in concert with a series of professional obligations that both constrain and compel a lawyer’sbehaviour.

Care must be taken to ensure that free expression, resolute advocacy and the right of an accused to make full answer anddefence are not sacrificed at the altar of civility. [4] The proceedings against the appellant, Joseph Groia, highlight the delicate interplay that these considerations giverise to. At issue is whether Mr. Groia’s courtroom conduct in the case of R. v. Felderhof, 2007 ONCJ 345, 224 C.C.C. (3d) 97, warranteda finding of professional misconduct by the Law Society of Upper Canada. To be precise, was the Law Society Appeal Panel’s finding ofprofessional misconduct against Mr.

Groia reasonable in the circumstances? For the reasons that follow, I am respectfully of the viewthat it was not. [5] The Appeal Panel developed an approach for assessing whether a lawyer’s uncivil behaviour crosses the line intoprofessional misconduct. The approach, with which I take no issue, targets the type of conduct that can compromise trial fairness anddiminish public confidence in the administration of justice. It allows for a proportionate balancing of the Law Society’s mandate to setand enforce standards of civility in the legal profession with a lawyer’s right to free speech.

It is also sensitive to the lawyer’s duty ofresolute advocacy and the client’s constitutional right to make full answer and defence. [6] Moreover, the Appeal Panel’s approach is flexible enough to capture the broad array of situations in which lawyersmay slip into uncivil behaviour, yet precise enough to guide lawyers and law societies on the scope of permissible conduct. [7] That said, the Appeal Panel’s finding of professional misconduct against Mr. Groia on the basis of incivility was, inmy respectful view, unreasonable. Even though the Appeal Panel accepted that Mr.

Groia’s allegations of prosecutorial misconduct weremade in good faith, it used his honest but erroneous views as to the disclosure and admissibility of documents to conclude that hisallegations lacked a reasonable basis. However, as I will explain, Mr. Groia’s allegations were made in good faith and they werereasonably based. As such, the allegations themselves could not reasonably support a finding of professional misconduct. [8] Nor could the other contextual factors in this case reasonably support a finding of professional misconduct againstMr. Groia on the basis of incivility.

The evolving abuse of process law at the time accounts, at least in part, for the frequency of Mr.Groia’s allegations; the presiding judge took a passive approach in the face of Mr. Groia’s allegations; and when the presiding judge andreviewing courts did direct Mr. Groia, apart from a few slips, he listened. The Appeal Panel failed to account for these contextual factorsin its analysis. In my view, the only conclusion that was reasonably open to the Appeal Panel on the record before it was a finding thatMr. Groia was not guilty of professional misconduct. [9] Accordingly, I would allow Mr. Groia’s appeal. II.

Factual Background [10] Mr. Groia’s alleged misconduct stems from his in-court behaviour while representing John Felderhof. Mr. Felderhofwas an officer and director of Bre-X Minerals Ltd., a Canadian mining company. Bre-X collapsed when claims that it had discovered agold mine proved false. The fraud — one of the largest in Canadian capital markets — cost investors over $6 billion. The OntarioSecurities Commission (“OSC”) charged Mr. Felderhof with insider trading and authorizing misleading news releases under theSecurities Act, R.S.O. 1990, c. S.5. [11] Mr. Felderhof hired Mr.

Groia, a former OSC prosecutor, to defend him. The trial proceeded in the Ontario Court ofJustice before Justice Peter Hryn. It took place in two phases. Phase One began on October 16, 2000 and lasted 70 days. Phase Two didnot begin until March 2004. On July 31, 2007, Mr. Felderhof was acquitted of all charges. [12] Phase One of the Felderhof trial was characterized by a pattern of escalating acrimony between Mr. Groia and theOSC prosecutors.

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. A. Disclosure Disputes [13] Disputes between Mr. Groia and the OSC prosecutors arose during the disclosure process. The Bre-X investigationyielded an extensive documentary record. The OSC initially disclosed interview transcripts and so-called “C-Binders” — binders ofdocuments the OSC intended to use as part of its case against Mr. Felderhof.

It did not, however, disclose a substantial body of additionaldocuments it had in its possession. The OSC prosecutors and Mr. Groia disagreed over the scope and format of further disclosure soughtby the defence. According to Mr. Groia, it was the OSC’s responsibility to sort through all of the documents it had in its possession andto disclose hard copies of any relevant document to the defence. When the OSC prosecutors refused to do so, Mr.

Groia wrote a letter tothe OSC alleging that the prosecution was “operating under a serious misapprehension of its disclosure obligation[s]”, an error that Mr.Groia described as “an abuse of process”: Law Society Appeal Panel, 2013 ONLSAP 41, at para. 33 (“A.P. reasons”). Hewould build on these themes as the trial progressed. In response, the OSC offered to disclose electronic copies of the documents in itspossession and provide Mr. Groia “with a reasonable supply of blank paper”: A.P. reasons, at paras. 35-37. [14] Dissatisfied with the OSC’s response, Mr. Groia moved for additional disclosure. Mr.

Naster, the lead OSC

prosecutor, argued that the OSC was not aware of any relevant document that had not been disclosed to Mr. Felderhof. The trial judge, however, agreed with Mr. Groia and ordered the OSC to disclose a further 235 boxes of documents and hard copies of documents stored on 15 discs in its possession. B. The Second Disclosure Motion [ 15 ] As the trial neared, the parties were still at odds over disclosure. Adamant that the OSC had not fulfilled its disclosure obligations, Mr. Groia sent Mr. Naster a letter accusing the OSC of adopting “a ‘win at any costs’ mentality” which demonstrated “a shocking disregard for [Mr.

Felderhof’s] rights”. [ 16 ] Mr. Groia then brought a motion arguing that the OSC’s disclosure was so deficient that it amounted to an abuse of process warranting a stay of proceedings. In the alternative, Mr. Groia sought full disclosure, and in the further alternative, an order prohibiting the OSC from calling witnesses until it made full disclosure. Interspersed throughout Mr. Groia’s submissions on the motion were allegations that the prosecutors were “unable or unwilling . . . to recognize their responsibilities”, motivated by an “animus towards the defence”, and determined to make Mr.

Felderhof’s ability to defend himself “as difficult as possible”. [ 17 ] By the end of the motion, Mr. Groia conceded that the stringent test for a stay of proceedings had not been met. Accordingly, the trial judge declined to stay the prosecution. Once again, however, he was satisfied that the OSC had not fulfilled its disclosure obligations and he ordered additional disclosure. The trial judge also admonished the OSC for a comment made by one of its media personnel that the OSC’s goal “was simply to seek a conviction on the charges” it had laid: A.P. reasons, at para. 55. C.

The Admissibility of Documents [ 18 ] Characteristic of most Securities Act prosecutions, the case against Mr. Felderhof relied heavily on documentary evidence. Between them, the prosecution and defence had nearly 100 binders containing thousands of documents. Disputes over the admissibility of those documents was a major source of friction throughout the trial. [ 19 ] Mr. Naster initially suggested that either party could provisionally tender documents, subject to arguments as to their admissibility at the end of the trial. Mr. Groia rejected this approach.

He was concerned that given the staggering size of the fraud, a number of Bre-X documents were falsified. As such, he insisted that the admissibility of each document should be ruled on as the document was tendered. Mr. Naster then changed his position, seeking an omnibus ruling on the admissibility of all of the documents. The trial judge declined to hear Mr. Naster’s motion, and the parties were put to the strict proof of each document they proposed to tender. [ 20 ] The disputes resulted in frequent objections and lengthy arguments on the admissibility and use of individual documents.

The first OSC witness had to be excused for large periods of time as the parties argued. The disputes became increasingly hostile and ground the trial to a near standstill. After 42 days of evidence, the first OSC witness’s testimony had yet to be completed. [ 21 ] Much of the disagreement stemmed from Mr. Groia’s honest but mistaken understanding of the law of evidence and the role of the prosecutor. His position on the admissibility of documents was founded on two legal errors. First, Mr.

Groia maintained that the prosecution was duty-bound to introduce all authentic, relevant documents and that its failure to introduce relevant exculpatory documents through its own witnesses was a deliberate tactic designed to ensure that Mr. Felderhof did not receive a fair trial. [ 22 ] Second, Mr. Groia believed that he could put documents, acknowledged by the OSC as being authentic, to the first OSC witness even though that witness had not authored them and could not identify them. Mr. Naster’s objections to this approach spawned further allegations of prosecutorial impropriety. Mr.

Groia argued that the OSC was using “a conviction filter” and thwarting Mr. Groia’s attempts to secure a fair trial for his client. [ 23 ] Mr. Groia’s mistaken position on the admissibility of documents was reinforced by Mr. Naster’s comment in the first disclosure motion that he had “an obligation as a prosecutor to ensure that all relevant materials are placed before [the trial judge]”: A.P. reasons, at para. 38. In addition, Mr. Groia mistook Mr. Naster’s concession that he was duty-bound to disclose all relevant documents as a promise that he would consent to the admissibility of those documents at trial.

In Mr. Groia’s view, Mr. Naster unfairly reneged on this promise. [ 24 ] The OSC was not entirely blameless for these skirmishes. Mr. Naster continued to challenge the trial judge’s ruling declining to hear an omnibus document motion, lamenting that he was getting “shafted big time”. Both sides stubbornly dug their heels in, refusing to budge and taking every opportunity to quarrel. [ 25 ] Despite the frequency and fervor of the disputes, the trial judge initially adopted a hands-off approach, opting to stay above the fray. Mr. Naster repeatedly invited the trial judge to rule on Mr.

Groia’s allegations of prosecutorial misconduct and to stay the proceedings as an abuse of process if he found the allegations to be substantiated. For his part, Mr. Groia made it clear that while he did not intend to bring an abuse of process motion at the time, he was putting the prosecutors on notice that their conduct was unacceptable and laying the groundwork for an abuse of process motion later in the proceedings. Accordingly, the trial judge postponed any ruling on the propriety of the prosecution’s conduct. [ 26 ] It was not until the 57th day of trial that the judge directed Mr.

Groia to stop repeating his misconduct allegations. Instead, whenever Mr. Groia felt the prosecution was acting inappropriately, he was to simply state that he was making “the same objection”. The trial judge reiterated his instruction a few days later. Mr. Groia largely followed the trial judge’s directions for the remainder of Phase One. D. The Judicial Review Application [ 27 ] During a scheduled three-week hiatus in the Felderhof trial, the OSC brought a judicial review application in the Superior Court before A. Campbell J., seeking the removal of the trial judge.

The OSC argued that the trial judge had committed a

number of errors which caused him to lose jurisdiction and undermined the OSC’s right to a fair trial. One of the OSC’s grounds for itsapplication was the trial judge’s failure to rein in Mr. Groia’s uncivil behaviour, thereby creating a reasonable apprehension of bias. [28] Justice Campbell dismissed the application. He found no jurisdictional error necessitating the trial judge’s removal.He concluded that the trial judge had acted in an even-handed manner throughout Phase One: R. v. Felderhof, , atparas. 281-85 (“Felderhof ONSC”). Campbell J. also noted that Mr.

Groia’s stance on the role of the prosecutor was mistaken,explaining, at para. 33, that the prosecution was entitled to seek a conviction “within the appropriate limits of fairness”. Despite Mr.Felderhof’s success on the judicial review application, Campbell J. declined to order costs against the OSC, in part because of Mr.Groia’s “appallingly unrestrained” conduct. [29] The Court of Appeal for Ontario dismissed the OSC’s appeal from Campbell J.’s order: R. v. Felderhof (2003), (ON CA), 68 O.R. (3d) 481 (“Felderhof ONCA”).

Writing for a unanimous panel, Rosenberg J.A. clarified that althoughthe defence has the right to allege abuse of process, that allegation should only be made at the appropriate juncture and with a sufficientfactual foundation. And even then, “defence counsel [was] obliged to make submissions without the rhetorical excess and invective thatMr. Groia sometimes employed”: para 93. [30] Campbell J. and Rosenberg J.A. were each critical of Mr. Groia’s behaviour throughout the trial. Campbell J.observed that “Mr. Groia took every opportunity to needle Mr.

Naster with sarcastic allegations of professional misconduct” (para. 284)and described Mr. Groia’s submissions as “descend[ing] from legal argument to irony to sarcasm to petulant invective” (para. 64).Rosenberg J.A. similarly noted that “Mr.

Groia was prone to rhetorical excess and sarcasm” and described his submissions as“unseemly”, “unhelpful” and “improper”: paras. 13 and 80. [31] Both judges also voiced displeasure with how the prosecution had behaved, noting that there had been “tacticalmanoeuvring on both sides” (Felderhof ONCA, at para. 68), and that “[n]either side . . . ha[d] any monopoly over incivility or rhetoricalexcess” (Felderhof ONSC, at para. 264). [32] The Felderhof trial resumed in March 2004, with new counsel appearing for the OSC.

In line with the guidanceprovided by Campbell J. and Rosenberg J.A., the evidentiary disputes were resolved and the second phase of the trial proceeded withoutfurther incident, completing on July 31, 2007, with Mr. Felderhof being acquitted on all charges. III. Procedural History A. The Law Society Disciplinary Proceedings [33] In 2004, the Law Society launched an investigation into Mr. Groia’s conduct during the Felderhof trial. The LawSociety initiated the investigation on its own motion; no independent complaint was filed against Mr. Groia. At Mr.

Groia’s request, theLaw Society postponed its investigation until the Felderhof trial ended. On November 18, 2009 — more than nine years after theFelderhof trial began — the Law Society brought disciplinary proceedings against Mr. Groia, alleging professional misconduct based onhis uncivil behaviour during Phase One of the trial. [34] The professional misconduct allegations were first litigated before a three-member panel of the Law Society (theHearing Panel). Mr. Groia testified in his own defence. The Hearing Panel concluded that allowing Mr.

Groia to re-litigate the proprietyof his conduct was an abuse of process given Campbell J.’s and Rosenberg J.A.’s findings on the issue — this despite the fact that Mr.Groia was not a party to the judicial review proceedings and made no submissions on his own behalf in defence of his behaviour.Relying heavily on those findings, the Hearing Panel found Mr. Groia guilty of professional misconduct: Law Society Hearing Panel,2012 ONLSHP 94 (“H.P. reasons”). It suspended Mr.

Groia’s licence to practice law for two months and ordered him to pay nearly$247,000 in costs: Hearing Panel decision on penalty, 2013 ONLSHP 59. [35] Mr. Groia appealed the Hearing Panel’s decision to the Law Society Appeal Panel. The Appeal Panel found that theHearing Panel had erred in treating the Felderhof judicial review findings as conclusive and precluding Mr. Groia from defending hisbehaviour. At the request of both parties, the Appeal Panel considered the professional misconduct allegations against Mr. Groia de novobased on the record of proceedings before the Hearing Panel, including Mr.

Groia’s testimony before that body. [36] The Appeal Panel grappled with the issue of when in-court incivility amounts to professional misconduct under the Law Society’s codes of conduct in force at the relevant time.[1] It reasoned that incivility “capture[s] a range of unprofessionalcommunications” (para. 6) and ultimately settled on a multifactorial, context-specific approach for assessing a lawyer’s behaviour.

Inparticular, the Appeal Panel articulated a series of contextual factors — what the lawyer said, the manner and frequency in which it wassaid, and the presiding judge’s reaction to the lawyer’s behaviour — that should generally be taken into account. [37] In the final analysis, the Appeal Panel concluded that Mr. Groia was guilty of professional misconduct. As indicated,it based its finding entirely on the record before the Hearing Panel. Because the Appeal Panel did not hear Mr. Groia testify, it was not ina position to assess his credibility. It therefore assumed that Mr.

Groia had made his allegations of professional impropriety against theOSC prosecutors in good faith, based on his testimony before the Hearing Panel. Nevertheless, it concluded that Mr. Groia’s repeatedpersonal attacks lacked a reasonable basis. While the Appeal Panel acknowledged that the prosecutors “were not entirely blameless”, itcould find nothing in the way the OSC conducted the trial that suggested it adopted a win-at-all-costs approach or intentionallysabotaged Mr. Groia’s attempt to secure a fair trial for his client. The Appeal Panel reduced Mr.

Groia’s suspension to one month anddecreased the costs award against him to $200,000. B. The Ontario Superior Court of Justice — Divisional Court, 2015 ONSC 686, 124 O.R. (3d) 1 [38] Mr. Groia appealed to the Divisional Court from the Appeal Panel’s decision. The Divisional Court reasoned that theAppeal Panel’s approach did not sufficiently protect resolute advocacy. In its view, for a lawyer to be found guilty of professionalmisconduct, it was necessary that the lawyer’s behaviour bring, or have a tendency to bring, the administration of justice into disrepute.

Nevertheless, the Divisional Court upheld the Appeal Panel’s decision as reasonable. It found that the Appeal Panel considered all of the relevant factors and “expressed, in a fair, rational and understandable way, why [it] ultimately concluded that the appellant’s conduct amounted to professional misconduct”: para. 97. C. The Court of Appeal for Ontario, 2016 ONCA 471 , 131 O.R. (3d) 1 [ 39 ] A majority of the Court of Appeal dismissed Mr. Groia’s further appeal. Cronk J.A., writing for the majority, identified reasonableness as the appropriate standard of review. In her view, nothing displaced the presumption of reasonableness that applied to the Appeal Panel’s

interpretation of its enabling legislation. [ 40 ] Justice Cronk found the Appeal Panel’s decision reasonable. It did not unduly impinge on a lawyer’s duty to resolutely advocate on his or her client’s behalf; it proportionately balanced the lawyer’s and client’s expressive freedoms; and it was not vague or ill-defined. According to Cronk J.A., the Appeal Panel’s finding of professional misconduct was amply justified. In her view, Mr.

Groia’s conduct “exceeded even the most broadly defined reasonable boundaries of zealous advocacy”, “affected the orderly progression of the trial” and “contributed to the delay in the completion of the testimony of the first witness”: para. 211. [ 41 ] Justice Brown, dissenting, disagreed with the majority’s position on both the standard of review and the application of that standard to the Appeal Panel’s decision. In his view, the fact that Mr. Groia’s conduct took place in court fundamentally altered the analysis.

The primacy of the judiciary as arbiters of in-court conduct mandated correctness review to ensure that “courts remain the final umpires of the propriety of what barristers do in courtrooms”: para. 313. [ 42 ] In Brown J.A.’s view, the Appeal Panel’s approach to determining whether a lawyer’s behaviour warrants professional sanction underemphasized the effect of the lawyer’s conduct on the fairness of the proceeding. Furthermore, it failed to give “meaningful consideration to the rulings made by the trial judge” and the “response of the barrister to those rulings”: para. 360.

Brown J.A. proposed a test that assessed the lawyer’s conduct, its effect on the proceeding, and the presiding judge’s response: para. 319. Applying that test, he would not have found Mr. Groia guilty of professional misconduct. Although Mr. Groia’s personal attacks on the OSC prosecutors were improper, they did not undermine trial fairness. Mr. Groia largely complied with the trial judge’s instructions to refrain from making invective-laced allegations. And after the Court of Appeal for Ontario administered a “public shaming”, Phase Two of the trial proceeded without incident. IV. Analysis A.

The Standard of Review [ 43 ] This Court’s decisions in Law Society of New Brunswick v. Ryan , 2003 SCC 20 , [2003] 1 S.C.R. 247, at para. 42 , and Doré v. Barreau du Québec , 2012 SCC 12 , [2012] 1 S.C.R. 395, at para. 45 , establish that law society misconduct findings and sanctions are reviewed for reasonableness. That is the standard against which the Appeal Panel’s decision is to be assessed. [ 44 ] In the ordinary course, an established standard of review obviates the need for a full standard of review analysis: see Dunsmuir v. New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190, at para. 62 .

However, given the lower courts’ conspicuous disagreement on the standard of review, in my view it is helpful to explain why a reasonableness standard applies. [ 45 ] Setting threshold criteria for a finding of professional misconduct and assessing whether a lawyer’s behaviour satisfies those criteria involve the

interpretation of the Law Society’s home statute and the exercise of discretion under it and are thus presumptively entitled to deference. As I will explain, that presumption is not rebutted. [ 46 ] This Court’s post- Dunsmuir jurisprudence has firmly entrenched the notion that decisions of specialized administrative bodies “interpreting [their] own statute or statutes closely connected to [their] function” are entitled to deference from courts, and are thus presumptively reviewed for reasonableness: Canadian National Railway Co. v.

Canada (Attorney General) , 2014 SCC 40 , [2014] 2 S.C.R. 135, at para. 55 ; see also Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd. , 2016 SCC 47 , [2016] 2 S.C.R. 293, at para. 22 ; Mouvement laïque québécois v. Saguenay (City) , 2015 SCC 16 , [2015] 2 S.C.R. 3, at para. 46 ; and McLean v. British Columbia (Securities Commission) , 2013 SCC 67 , [2013] 3 S.C.R. 895, at para. 21 . [ 47 ] That presumption applies here. The Appeal Panel’s approach to determining when incivility amounts to professional misconduct and its application of that approach in assessing Mr. Groia’s conduct involve an

interpretation of the Rules of Professional Conduct enacted under its home statute and the discretionary application of general principles to the facts before it. The Appeal Panel’s decision is thus presumptively reviewed for reasonableness. [ 48 ] Mr. Groia, along with Brown J.A. in dissent, share the view that the presumption of reasonableness is rebutted in this case, albeit for different reasons. Mr. Groia argues that determining when incivility amounts to professional misconduct is a question of central importance outside the Law Society’s expertise.

He also adopts Brown J.A.’s position that a crucial distinction exists between in- court and out-of-court conduct, necessitating correctness review. With respect, I cannot accept these arguments.

(1) Question of Central Importance Outside of the Law Society’s Expertise [ 49 ] Dunsmuir identifies four narrow categories for which correctness review is appropriate. Only one is at issue here: questions of central importance to the legal system as a whole and outside the decision maker’s expertise: Dunsmuir , at para. 60 . Mr. Groia argues that determining when in-court behaviour amounts to professional misconduct falls under this category. [ 50 ] Unquestionably, lawyers are vital to the proper functioning of the administration of justice in our free and democratic society. As Major J. observed in R. v.

McClure , 2001 SCC 14 [2001] 1 S.C.R. 445, at para. 2 : The law is a complex web of interests, relationships and rules. The integrity of the administration of justice depends upon the unique role of the solicitor who provides legal advice to clients within this complex system.

By guiding clients through this “complex web of interests”, lawyers uphold the rule of law. They provide those subject to our legalsystem a means to self-determination under and through the law and guard against arbitrary or unjustified state action: see A. Woolley,Understanding Lawyers’ Ethics in Canada (2nd ed. 2016), at pp. 33-35. [51] As such, the permissible scope of their in-court behaviour is arguably of central importance to the legal system as awhole.

But even assuming that this raises a question of central importance, it cannot be said that assessing whether incivility amounts toprofessional misconduct is outside the Law Society’s expertise. To the contrary, law society disciplinary tribunals have significantexpertise regulating the legal profession: Green v. Law Society of Manitoba, 2017 SCC 20, [2017] 1 S.C.R. 360, at para. 25; Ryan, atpara. 42.

One of the Law Society’s core functions “is to establish general rules applicable to all members to ensure ethical conduct,protect the public and discipline lawyers who breach the rules”: Canadian National Railway Co. v. McKercher LLP, 2013 SCC 39,[2013] 2 S.C.R. 649, at para. 15; see also Law Society Act, R.S.O. 1990, c. L.8, s. 4.1. And the Law Society has over two centuries ofinstitutional expertise fulfilling this mandate. [52] Moreover, Law Society disciplinary panels are composed, in part, of other lawyers.

As Cory J. remarked in ReStevens and Law Society of Upper Canada (1979), (ON SC), 55 O.R. (2d) 405 (H.C.J.), at p. 410: “Probably no onecould approach a complaint against a lawyer with more understanding than a group composed primarily of members of his profession.”This understanding comes from experience. Lawyers are “keenly aware of the problems and frustrations that confront a practitioner”:Stevens, at p. 410.

(2) In-Court Versus Out-of-Court Conduct [53] Even where the question under review does not fit neatly into one of the four Dunsmuir correctness categories, “acontextual analysis” that reveals a legislative intent not to defer to a tribunal’s decision may nonetheless rebut the presumption ofreasonableness: McLean, at para. 22; Edmonton East, at para. 32; Saguenay, at para. 46. Brown J.A. and Mr. Groia refer to one particularcontextual factor: Mr. Groia’s uncivil behaviour took place in a courtroom.

In their view, reviewing professional misconduct findingsbased on in-court behaviour for reasonableness impermissibly infringes on judicial independence. They maintain that in assessingwhether courtroom conduct crosses the line, correctness review is required to ensure “the court has the last word in answering thequestion”: Groia ONCA, at para. 280, per Brown J.A.. [54] With respect, the fact that Mr. Groia’s uncivil behaviour took place in a courtroom is, in my view, irrelevant todetermining the standard of review. To be sure, the independence of the judiciary is a constitutional cornerstone: Beauregard v.

Canada, (SCC), [1986] 2 S.C.R. 56, at pp. 69-73. Crucial to the principle of judicial independence is the presiding judge’s powerto control his or her courtroom. However, I do not see a deferential standard of review as threatening that power. [55] In this regard, I agree with Cronk J.A. that “the application of the reasonableness standard of review in cases like thisone in no way intrudes on a presiding judge’s authority to control the process in his or her courtroom”: para. 67. Courts and law societiesenjoy concurrent jurisdiction to regulate and enforce standards of courtroom behaviour.

A trial judge is free to control the conduct in hisor her courtroom irrespective of the degree of deference accorded to a law society’s disciplinary decision by a different court. [56] To be clear, the location of the impugned behaviour is unquestionably relevant to the misconduct analysis itself.

As Iwill explain, the fact that the behaviour occurs in a courtroom is an important contextual factor that must be taken into account whenevaluating whether that behaviour amounted to professional misconduct; but it does not impact on the standard of review. [57] In sum, the Appeal Panel’s decision is reviewed for reasonableness. B. Was the Appeal Panel’s Decision Reasonable?

(1) The Appeal Panel’s Approach [58] To determine whether the Appeal Panel’s decision was reasonable, i.e. whether it fell within a range of reasonableoutcomes, it is necessary to explore how the Appeal Panel reached its result. In this case, as is apparent from its reasons, the AppealPanel first developed an approach for assessing whether a lawyer’s behaviour crosses the line into professional misconduct on the basisof incivility. Having done so, it then evaluated whether Mr.

Groia was guilty of professional misconduct. [59] The Appeal Panel took a context-specific approach to evaluating a lawyer’s in-court behaviour. In particular, itconsidered whether Mr. Groia’s allegations were made in good faith and had a reasonable basis. It also identified the frequency andmanner in which Mr. Groia made his submissions and the trial judge’s reaction to Mr. Groia’s behaviour as relevant considerations. [60] Mr. Groia maintains that the Appeal Panel’s approach led to an unreasonable result.

Several interveners join him,pointing to perceived weaknesses in different aspects of the Appeal Panel’s approach and urging this Court to adopt their preferredapproaches for evaluating a lawyer’s conduct. [61] These arguments can be broadly grouped into four categories. First, the Appeal Panel’s approach does notappropriately balance civility and resolute advocacy. Second, it does not provide enough guidance to lawyers. Third, it does not properlyaccount for the presiding judge’s reaction to the lawyer’s behaviour and judicial independence.

Fourth, it disproportionately balances theLaw Society’s statutory mandate with the lawyer’s right to free expression. [62] For the reasons that follow, I would reject these submissions. When developing an approach for assessing whetherincivility amounts to professional misconduct, the Appeal Panel recognized the importance of civility while remaining sensitive to thelawyer’s duty of resolute advocacy — a duty of particular importance in the criminal context because of the client’s constitutional right tomake full answer and defence.

Its context-specific approach is flexible enough to assess allegedly uncivil behaviour arising out of thediverse array of situations in which courtroom lawyers find themselves. At the same time, the Appeal Panel set a reasonably precisebenchmark that instructs lawyers as to the permissible bounds of ethical courtroom behaviour, articulating a series of factors that oughtgenerally to be considered when evaluating a lawyer’s conduct and describing how those factors operate when assessing a lawyer’s

behaviour. Finally, the Appeal Panel’s approach allows law society disciplinary tribunals to proportionately balance the lawyer’sexpressive freedom with its statutory mandate in any given case. (

a) The Appeal Panel Recognized the Importance of Civility [63] To begin, when developing its approach, the Appeal Panel recognized the importance of civility to the legalprofession and the corresponding need to target behaviour that detrimentally affects the administration of justice and the fairness of a particular proceeding. The duty to practice with civility has long been embodied in the legal profession’s collective conscience[2] — andfor good reason.

Civility has been described as “the glue that holds the adversary system together, that keeps it from imploding”: MordenA.C.J.O., “Notes for Convocation Address — Law Society of Upper Canada, February 22, 2001”, in Law Society of Upper Canada, ed.,Plea Negotiations: Achieving a “Win-Win” Result (2003), at pp. 1-10 to 1-11. Practicing law with civility brings with it a host ofbenefits, both personal and to the profession as a whole. Conversely, incivility is damaging to trial fairness and the administration ofjustice in a number of ways. [64] First, incivility can prejudice a client’s cause.

Overly aggressive, sarcastic, or demeaning courtroom language maylead triers of fact, be they judge or jury, to view the lawyer — and therefore the client’s case — unfavourably. Uncivil communicationswith opposing counsel can cause a breakdown in the relationship, eliminating any prospect of settlement and increasing the client’s legalcosts by forcing unnecessary court proceedings to adjudicate disputes that could have been resolved with a simple phone call.

As oneAmerican commentator aptly wrote: Conduct that may be characterized as uncivil, abrasive, hostile, or obstructive necessarily impedes the goal of resolving conflictsrationally, peacefully, and efficiently, in turn delaying or even denying justice . . . . This mindset eliminates peaceable dealings and oftenforces dilatory, inconsiderate tactics that detract from just resolution. (K. A. Nagorney, “A Noble Profession? A Discussion of Civility Among Lawyers” (1999), 12 Geo. J. Legal Ethics 815, at p. 817) [65] Second, incivility is distracting.

A lawyer forced to defend against constant allegations of impropriety will naturallybe less focused on arguing the case. Uncivil behaviour also distracts the triers of fact by diverting their attention away from thesubstantive merits of the case. The trial judge risks becoming preoccupied with policing counsel’s conduct instead of focusing on theevidence and legal issues: Justice Michael Code, “Counsel’s Duty of Civility: An Essential Component of Fair Trials and an EffectiveJustice System” (2007), 11 Can. Crim. L.R. 97, at p. 105. [66] Third, incivility adversely impacts other justice system participants.

Disparaging personal attacks from lawyers —whether or not they are directed at a witness — can exacerbate the already stressful task of testifying at trial. [67] Finally, incivility can erode public confidence in the administration of justice — a vital component of an effectivejustice system: Valente v. The Queen, (SCC), [1985] 2 S.C.R. 673, at p. 689. Inappropriate vitriol, sarcasm and baselessallegations of impropriety in a courtroom can cause the parties, and the public at large, to question the reliability of the result: seeFelderhof ONCA, at para. 83; Marchand (Litigation Guardian of) v.

Public General Hospital Society of Chatham (2000), (ON CA), 51 O.R. (3d) 97, at para. 148. Incivility thus diminishes the public’s perception of the justice system as a fair dispute-resolution and truth-seeking mechanism. [68] The Appeal Panel was alive to the profound importance of civility in the legal profession when developing itsapproach. It recognized that “‘civility’ protects and enhances the administration of justice” (para. 211), targeting behaviour that couldcall into question trial fairness and the public’s perception of the administration of justice (paras. 228 and 230-31). [69] Mr.

Groia and various interveners argue that the Appeal Panel should have gone further. Like the Divisional Court,they would require that before a lawyer can be found guilty of professional misconduct, the lawyer’s behaviour must bring theadministration of justice into disrepute or impact trial fairness. With respect, I would not give effect to their arguments. I echo thecomments of Cronk J.A. that such a requirement is “unnecessary and unduly restrictive”: Groia ONCA, para. 169.

The Appeal Panel’sapproach targets conduct that tends to compromise trial fairness and bring the administration of justice into disrepute, making an explicitrequirement unnecessary. Moreover, uncivil behaviour worthy of sanction may not have a perceptible impact on the fairness of theparticular proceeding. Finally, in my view, requiring the Law Society to evaluate the fairness of a proceeding would shift the focus awayfrom the lawyer’s behaviour and inappropriately imbue the Law Society with a judicial function. (

b) The Appeal Panel Accounted for the Relationship Between Civility and Resolute Advocacy [70] Second, in developing its approach, the Appeal Panel was sensitive to the lawyer’s duty of resolute advocacy and theclient’s constitutional right to make full answer and defence.

It held that “the word ‘civility’ should not be used to discourage fearlessadvocacy” (par. 211) and was careful to create an approach which ensured “that the vicissitudes that confront courtroom advocates arefairly accounted for so as not to create a chilling effect on zealous advocacy” (para. 232). [71] Although of doubtless importance, the duty to practice with civility is not a lawyer’s sole ethical mandate. Rather, itexists in concert with a series of professional obligations that both constrain and compel a lawyer’s behaviour. The duty of civility mustbe understood in light of these other obligations.

In particular, standards of civility cannot compromise the lawyer’s duty of resoluteadvocacy. [72] The importance of resolute advocacy cannot be overstated. It is a vital ingredient in our adversarial justice system —a system premised on the idea that forceful partisan advocacy facilitates truth-seeking: see e.g. Phillips v. Ford Motor Co. (1971), (ON CA), 18 D.L.R. (3d) 641, at p. 661. Moreover, resolute advocacy is a key component of the lawyer’s commitment to theclient’s cause, a principle of fundamental justice under s. 7 of the Canadian Charter of Rights and Freedoms: Canada (AttorneyGeneral) v.

Federation of Law Societies of Canada, 2015 SCC 7, [2015] 1 S.C.R. 401, at paras. 83-84.

[ 73 ] Resolute advocacy requires lawyers to “raise fearlessly every issue, advance every argument and ask every question, however distasteful, that the lawyer thinks will help the client’s case”: Federation of Law Societies of Canada, Model Code of Professional Conduct (online), r. 5.1-1 commentary 1. This is no small order. Lawyers are regularly called on to make submissions on behalf of their clients that are unpopular and at times uncomfortable. These submissions can be met with harsh criticism — from the public, the bar, and even the court.

Lawyers must stand resolute in the face of this adversity by continuing to advocate on their clients’ behalf, despite popular opinion to the contrary. [ 74 ] The duty of resolute advocacy takes on particular salience in the criminal law context. Criminal defence lawyers are the final frontier between the accused and the power of the state. As Cory J. noted in The Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Consideration of Entitlement to Compensation (2001), at p. 53: It cannot be forgotten that it is often only the Defence Counsel who stands between the lynch mob and the accused.

Defence Counsel must be courageous, not only in the face of an outraged and inflamed community, but also, on occasion, the apparent disapproval of the Court. [ 75 ] For criminal defence lawyers, fearless advocacy extends beyond ethical obligations into the realm of constitutional imperatives. As the intervener the Criminal Lawyers’ Association of Ontario (“CLAO”) notes, defence lawyers advancing the accused’s right to make full answer and defence “are frequently required to criticize the way state actors do their jobs”: Quebec (Director of Criminal and Penal Prosecutions) v.

Jodoin , 2017 SCC 26 , [2017] 1 S.C.R. 478, at para. 32 ; Doré , at paras. 64-66 . These criticisms range from routine Charter applications — alleging, for example, an unconstitutional search, detention, or arrest — to serious allegations of prosecutorial misconduct. Defence lawyers must have sufficient latitude to advance their clients’ right to make full answer and defence by raising arguments about the propriety of state actors’ conduct without fear of reprisal. [ 76 ] In saying this, I should not be taken as endorsing incivility in the name of resolute advocacy.

In this regard, I agree with both Cronk J.A. and Rosenberg J.A. that civility and resolute advocacy are not incompatible: see Groia ONCA , at paras. 131-39 ; Felderhof ONCA , at paras. 83 and 94. To the contrary, civility is often the most effective form of advocacy. Nevertheless, 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.

The Appeal Panel recognized the need to develop an approach that would avoid such a chilling effect. (

c) The Appeal Panel’s Approach Is Both Flexible and Precise [ 77 ] The Appeal Panel developed an approach that is both flexible and precise. A rigid definition of when incivility amounts to professional misconduct in the courtroom is neither attainable nor desirable. Rather, determining whether a lawyer’s behaviour warrants a finding of professional misconduct must remain a context-specific inquiry that is flexible enough to assess behaviour arising from the diverse array of situations in which lawyers find themselves. [ 78 ] And yet standards of civility must be articulated with a reasonable degree of precision.

An overly vague or open- ended test for incivility risks eroding resolute advocacy. Prudent lawyers will steer clear of a blurry boundary to avoid a potential misconduct finding for advancing arguments that may rightly be critical of other justice system participants. In contrast, a standard that is reasonably ascertainable gives lawyers a workable definition which they can use to guide their behaviour.

It also guides law society disciplinary tribunals in their task of determining whether a lawyer’s behaviour amounts to professional misconduct. [ 79 ] The Appeal Panel’s approach strikes a reasonable balance between flexibility and precision. The Appeal Panel described its approach to assessing whether a lawyer’s uncivil behaviour warrants professional sanction as “fundamentally contextual and fact specific”, noting the importance of “consider[ing] the dynamics, complexity and particular burdens and stakes of the trial or other proceeding”: paras. 7 and 232.

By focussing on the particular factual matrix before it, the Appeal Panel’s approach is flexible enough to accommodate the diverse array of situations in which courtroom lawyers find themselves. [ 80 ] At the same time, the Appeal Panel’s approach is sufficiently precise to delineate an appropriate boundary past which behaviour warrants a professional misconduct finding. The Appeal Panel identified a set of factors that a disciplinary panel ought generally to consider when evaluating a lawyer’s conduct. It then provided guidance on how those factors operate when assessing a lawyer’s behaviour.

Importantly, as the Appeal Panel recognized, this list is not closed and the weight assigned to each factor will vary case-by-case. I turn to those factors now. (

i) Factors to Consider When Assessing a Lawyer’s Behaviour 1. What the Lawyer Said [ 81 ] First, the Appeal Panel looked to what the lawyer said. Mr. Groia alleged prosecutorial misconduct throughout Phase One of the Felderhof trial. As such, the Appeal Panel had to determine when these kinds of allegations amount to professional misconduct. It concluded that prosecutorial misconduct allegations, or other challenges to opposing counsel’s integrity, cross the line into professional misconduct unless they are made in good faith and have a reasonable basis: A.P. reasons, at paras. 9 and 235.

In other words, allegations that are either made in bad faith or without a reasonable basis amount to professional misconduct. [ 82 ] Two points about evaluating what the lawyer said warrant comment. First, I do not read the Appeal Panel’s reasons as characterizing allegations made in bad faith or without a reasonable basis as a stand-alone “test” for professional misconduct.

When the reasons are read as a whole, it is apparent that whether or not allegations of prosecutorial misconduct are made in bad faith or without a reasonable basis is simply one piece of the “fundamentally contextual and fact specific” analysis for determining whether a lawyer’s behaviour amounts to professional misconduct: A.P. reasons, at paras. 7 and 232. [ 83 ] To be clear, in some circumstances, bad faith allegations or allegations that lack a reasonable basis may, on their own, warrant a finding of professional misconduct. However, a law society disciplinary tribunal must always take into account the full

panoply of contextual factors particular to an individual case before making that determination. A contrary

interpretation would renderredundant any assessment of the frequency or manner in which the allegations were made and the presiding judge’s reaction — factorswhich the Appeal Panel considered relevant to the overall inquiry. [84] Second, it was open to the Appeal Panel to conclude that allegations of prosecutorial misconduct or other challengesto opposing counsel’s integrity must both be made in good faith and have a reasonable basis. Various interveners take issue with thisstandard.

The British Columbia Civil Liberties Association argues that sanctioning a lawyer for making good faith allegations without areasonable basis punishes the lawyer for simply being mistaken. The CLAO agrees, submitting that the Appeal Panel’s standard does notgive defence counsel the necessary latitude to fearlessly advance arguments that turn out to be incorrect.

Accordingly, only allegationsmade in bad faith should warrant a finding of professional misconduct. [85] I share the interveners’ concerns that law societies should not sanction lawyers for sincerely held but mistaken legalpositions or questionable litigation strategies. Nonetheless, in my view, the Appeal Panel’s standard withstands scrutiny. Allegations thatimpugn opposing counsel’s integrity must not be made lightly. A reputation for integrity is a lawyer’s most important professional asset.It generally takes a long time to build up and it can be lost overnight.

Courts and legal commentators have emphasized the importance ofa lawyer’s reputation. In Hill v. Church of Scientology of Toronto, (SCC), [1995] 2 S.C.R. 1130, at para. 118, Cory J.put it this way: The reputation of a lawyer is of paramount importance to clients, to other members of the profession, and to the judiciary. A lawyer’spractice is founded and maintained upon the basis of a good reputation for professional integrity and trustworthiness. It is thecornerstone of a lawyer’s professional life.

Even if endowed with outstanding talent and indefatigable diligence, a lawyer cannot survivewithout a good reputation. [86] Maintaining a reputation for practicing with integrity is a lifelong challenge. Once sullied, a lawyer’s reputation maynever be fully restored. As such, allegations of prosecu

[…]