Supreme Court majority sides with censured former Bre-X lawyer Joe Groia

The majority of judges on Canada’s highest court sided with Groia, whose lawyer lauded the decision.

“Joe lost at every level, but if you’re only going to win once, the Supreme Court of Canada is the place to win,” Groia’s lawyer Earl Cherniak said of the ruling.

The law society focused attention on Groia long after the acrimonious trial that ultimately concluded in an acquittal for Felderhof, the only Bre-X executive to face charges in the case. Investors lost billions when Canadian-based Bre-X collapsed in 1997 after claims of an Indonesian gold find turned out to be bogus.

By all accounts, including the Supreme Court decision, the trial featured several tense exchanges between Groia and opposing lawyers and numerous allegations that prosecutors were abusing process.

The top court ruling described the trial as having “a toxicity that manifested itself in the form of personal attacks, sarcastic outbursts and allegations of professional impropriety” that ground the proceedings to “a near standstill.”

The law society, finding Groia had breached civility rules, at one point suspended him for two months and ordered him to pay $247,000 in costs — later reduced to one month suspension and $200,000.

Cherniak said that many of Groia’s attacks were based on a sincere misunderstanding of legal rules regarding when prosecutors were obliged to introduce evidence in a trial.

Six of the nine justices on the Supreme Court supported that view and said Groia could not be found guilty of incivility because he was making his arguments in good faith.

“Finding a lawyer guilty of professional misconduct on the basis of incivility for making an abuse of process argument that is based on a sincerely held but mistaken legal position discourages lawyers from raising these allegations, frustrating the duty of resolute advocacy and the client’s right to make full answer and defence,” wrote one of the judges who ruled in Groia’s favour.

The majority of judges found that while the law society has reasonable and context-specific standards for evaluating whether or not a lawyer breached civility rules, it did not apply them properly in this case.

The law society did not comment on the ruling as it related to Groia specifically, but did express some satisfaction with the court’s characterization of the role it plays in upholding standards of courtroom conduct.

“The law society welcomes the Supreme Court’s recognition of the importance of civility in the courts and its decision to endorse the Law Society Tribunal Appeal Panel’s test for incivility in court,” it said in a statement. “This decision upholds the law society’s jurisdiction to regulate the legal professions’ conduct in court.”

Nonetheless, three Supreme Court justices expressed concern that the ruling may undermine the oversight body.

The dissenting justices expressed concern that the majority ruling could “immunize erroneous allegations from sanction by the law society, validate improper conduct and threaten to undermine the administration of justice.”

The Canadian Civil Liberties Association, which intervened in the case, took a more positive view of the decision, calling it “a good result for freedom of speech.”

“The majority of the Supreme Court … recognized the central importance of allowing lawyers the freedom to express themselves, particularly in defence of their clients’ rights,” the association said in a statement. “It also noted that incivility prosecutions should target behaviour that has a negative impact on the administration of justice or the fairness of a particular proceeding.”

Michelle McQuigge , The Canadian Press

Note to readers: This is a corrected story. A previous version misspelled Earl Cherniak’s last name.

by Canadian Press

Supreme Court majority sides with censured former Bre-X lawyer Joe Groia

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