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Barreau The Law Society of du Haut-Canada Upper Canada

LAW SOCIETY HEARING PANEL

Citation: Law Society of Upper Canada v. Joseph Peter Paul Groia, 2012 ONLSHP 0094 Date: June 28, 2012 File No.: LCN62/09

BETWEEN:

The Law Society of Upper Canada, Applicant


v.

Joseph Peter Paul Groia, Respondent


ofthe City ofToronto

Before:

Thomas G. Conway (chair) Susan T. McGrath Baljit Sikand August 2-4, August 8-12 and August 18 and 19, 2011; January 30-February 2, February 6-8 and April24-25, 2012, in Toronto, Ontario J. Thomas Cuny, for the applicant Earl A. Cherniak, Q.C., for the respondent

Heard:

Counsel:

REASONS FOR DECISION INTRODUCTION

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Thomas G. Conway (for the panel):- The Law Society of Upper Canada (the "Law Society") applies to the Hearing Panel under s. 34 of the Law Society Act, R.S.O. 1990, c. 1.8 for determination of whether the Lawyer, Joseph Peter Paul Groia, has contravened s. 33 of the Act by engaging in professional misconduct. The application was commenced by Notice of Application, dated November 18, 2009. The Law Society sets out the particulars of professional misconduct in paragraph 3 of the Notice of Application. The particulars of alleged misconduct involve events during a trial in the matter of R. v. Felderhofspanning a period from 1999 to 2001.

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PROCEDURAL HISTORY Trial in R. v. Felderhof

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On May 11, 1999, the Ontario Securities Commission (the "OSC") charged Mr. John Bernard Felderhof with eight counts under the Securities Act. A senior vice-president and vice-chair of the Bre-X Board of Directors, Mr. Felderhof was accused of insider trading and of authorizing misleading press releases. Between 1995 and 1997, Bre-X was engaged in the exploration of gold deposits in the Busang properties, in the Province of East Kalimantan, the Republic of Indonesia. Inflated reports of the Busang gold resources led to estimations that Busang may be one of the largest gold deposits in the world. The price of Bre-X shares skyrocketed, from under $1 per share in 1993 to over $280 per share in May 1996. On February 11, 1997, Bre-X entered into a joint venture agreement with Freeport. On March 10, 1997, after having performed its own assay, Freeport started receiving results that showed almost no gold. Nine days later, news of the Bre-X exploration manager's fall to his death from a helicopter brought the trading in Bre-X stock to a halt. Confirmation drilling by Strathcona Mineral Services obtained similar negative results. After a press release by Bre-X, issued on May 4, 1997 and confirming Strathcona's negative results, the price for Bre-X shares fell to $0.90. The Toronto Stock Exchange ("TSE") delisted Bre-X. On May 8, 1997. Bre-X filed for bankruptcy protection and became bankrupt inNovember 1997. In 1997, Mr. Felderhof retained Mr. Groia as part of his defence team. In 2007, Mr. Felderhof was found not guilty of all counts laid by the OSC 1 The present proceedings are concerned with Mr. Groia's conduct as defence counsel for Mr. Felderhof. The trial, presided by Justice Peter Hryn of the Ontario Court of Justice, commenced on
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October 16, 2000. The first 70 days ("Phase One") of the trial were marred both by disputes between the prosecution and the defence regarding the admissibility of evidence and by countless accusations of prosecutorial misconduct made by Mr. Groia. By the end of Phase One, only two witnesses had been called, and neither had finished giving his testimony.
Application for Judicial Review and Appeal

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On April17, 2001, the OSC made an application for judicial review to the Superior Court of Ontario, seeking to disqualify Justice Hryn who, allegedly, had lost jurisdiction by failing to control the proceedings. The OSC alleged the following grounds for loss of jurisdiction: a. wrongly postponing, until later in the trial, the hearing of the prosecutor's omnibus application to admit documentary evidence, instead of embarking upon the documentary evidence hearing immediately when demanded by the prosecutor, thus creating a "procedural nightmare"; wrongly directing the prosecution as to the order in which evidence and witnesses should be presented, thus usurping the function of the prosecutor; wrongly directing the prosecution to produce to the defence binders of documents that the prosecution intended to introduce through upcoming witnesses, thus breaching prosecuting counsel's work product litigation privilege and wrongly attempting to force the parties to reach agreement on the admission or exclusion of some of the documents; and wrongly failing to restrain uncivil conduct by defence counsel thus producing an unfair trial and creating a reasonable apprehension of bias in the judge.

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b.

c.

d. [12]

Justice Archie Campbell dismissed this application? However, in his reasons for judgment, Justice Campbell made extensive statements about Mr. Groia's conduct during the trial. Mr. Felderhof's subsequent motion for costs of the application was also dismissed with additional comments on Mr. Groia's conduct during Phase One. 3
An appeal to the Court of Appeal for Ontario was dismissed. 4 Although the Comi of Appeal concluded that Justice Hryn did not lose jurisdiction, it confirmed the findings of Justice Campbell with respect to the conduct of Mr. Groia during the trial and made extensive comments on his lack of civility.

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Following the judgment of the Court of Appeal, Phase Two of the trial began. The parties returned before Justice Hryn. The OSC retained new counsel for Phase Two, Mr. Frank Manocco (as he then was) and Ms. Emily Cole. By then, the parties had agreed to a case management process and the trial proceeded without serious incident. Mr. Felderhof was eventually acquitted of all charges (R. v. Felderhoj; 2007 ONCJ 345; 224 CCC (3d) 97, 75 WCB (2d) 46).

Investigation by the Law Society

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In February 2003, the Law Society became aware, through media reports, of Mr. Groia's trial conduct. In a letter, dated April 3, 2003, the Law Society advised Mr. Groia that it was monitoring the matter. On November 18, 2009, after allowing Mr. Groia to complete the trial in R. v. Felderhof and after providing him with further particulars of the allegations of misconduct, the Law Society issued the Notice of Application in this proceeding.

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Motion to Strike the Notice of Application

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On January 6, 2010, Mr. Groia moved for an order to strike out or quash the Notice of Application. This motion was dismissed with written reasons. 5
Mr. Groia claimed that the Society's application should be struck for:

a. b. c.

abuse of process arising from the vagueness of the particulars of misconduct; breach of natural justice due to the use of the "conclusions" found in the judicial review decisions; procedural unfairness due to an improper investigation, and particularly the Law Society's failure to order and review the transcripts of the trial against Mr. Felderhof; violation of the principle of an independent bar and of the duty to defend the client vigorously; and unreasonableness and breach of natural justice arising from investigatory delay.

d. e. [19]

In the alternative, Mr. Groia argued that Particulars 1(a)-(b) ofthe Notice of Application, which dealt with the "conclusions" of the courts, be struck down as having no factual foundation and that Particular 1(c) be struck for failing to state any conduct contrary to Rule 13 of the Professional Conduct Handbook. Mr. Groia filed evidence on the motion to demonstrate that, as of October 29, 2008, the Law Society had still not ordered the transcripts of the proceedings before Justice Hryn. In responding to the OSC's Application for the removal of Justice Hryn, Mr. Felderhofs defence team had not mounted a full defence to the allegations concerning Mr. Groia's conduct. This strategy was adopted, according to the evidence on the motion, to protect Mr. Felderhofs interests. Mr. Groia deposed that the Law Society investigation had originated in a news report from the National Post, but neither the trial judge nor the OSC had complained to the Law Society about his conduct. Finally, Mr. Groia introduced evidence that Law Society investigators had not independently reviewed the trial transcripts before the completion of the investigation report.

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The hearing panel dismissed the motion because the application raised important issues that should not be decided in a summary fashion. We observed that the focus of inquiry was not incivility per se, but rather the effect of a licensee's alleged uncivil conduct on the administration of justice. We also agreed with the submissions of counsel for both parties that the Law Society's application raised important questions concerning the independence of the bar and of the judiciary and the appropriate limits on a lawyer's duty to defend a client vigorously. We also held that the duty of procedural fairness in disciplinary proceedings does not extend to the investigative stage. We held that the Proceedings Authorization Committee enjoys a large measure of discretion and is not obliged to consider the suggestions of the lawyer under investigation with respect to the proper conduct of the investigation or which materials may be relevant. On these and other grounds, Mr. Groia's motion was dismissed and the application was allowed to proceed.

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STANDARD AND BURDEN OF PROOF

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The standard of proof required to substantiate an allegation of professional misconduct in a disciplinary proceeding is the civil standard on the balance of probabilities (F.H v. MacDougall, 2008 SCC 53 at para. 40). The panel disagrees with Mr. Groia that the serious allegations against him must be measured against a higher evidentiary standard. In Stetler v. Ontario Flue-Cured Tobacco Growers' Marketing Board (2005), 76 O.R. (3d) 321 (C.A.) at paras. 79-80, the Court of Appeal recognized that where the allegations of misconduct are serious, the quality of the evidence required for proof of misconduct is "clear, cogent and convincing" or "strong and unequivocal." However, as confirmed by the Supreme Court of Canada in F.H v. MacDougall, considerations such as seriousness of the allegations or consequences do not change the standard of proof (Ibid. at para. 40).

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EVIDENCE IN THESE PROCEEDINGS [26] The Law Society did not call any witnesses. Its evidence consisted of the correspondence between Mr. Groia and the OSC, transcripts from the various proceedings in R. v. Felderhof and the reasons for decision of the Superior Court and the Court of Appeal for Ontario. In total, 101 documentary exhibits were filed in this proceeding. Mr. Groia called seven witnesses. Those witnesses were Brian Greenspan, John B. Felderhof, Professor Alice Woolley, Stanley Fisher, Kevin Richard, Peter L. Roy and Nicholas A. Richter. Mr. Groia also testified in his own defence. The panel notes that many of those witnesses were involved in cetiain aspects of the Felderhof matter. With knowledge of all the exception of Nicholas Richter, no single witness had aspects of the proceedings in R. v. Felderhof. Professor Woolley had no involvement in

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those proceedings. [29]

Peter L. Roy is a lawyer with extensive experience in mining- and resource-related litigation. He was involved in the Bre-X class action as defence counsel for Nesbitt Burns and the Bank of Montreal. He was interested in the testimony of Mr. Felderhof, who he believed would be a significant witness in the class action proceedings. Mr. Roy anticipated that he-would someday cross-examine Mr. Felderhof. Mr. Roy gave testimony of his opinion of the importance of the disclosure requested by Mr. Groia, but admitted that he had not been present in court during Phase One of the Felderhoftrial. 6 Although he agreed that civility had been discussed by the legal profession since before he was called to the bar, he noticed a more visible concern with the concept and a changed trial atmosphere over the past 10 years. 7 John Bernard Felderhof testified that be continues to hold Mr. Groia in high regard. Mr. Felderhof described the threat posed to him by the OSC charges and the lawsuits that he faces in the United States in the aftermath of the Bre-X collapse. The courts have frozen his personal assets pending the resolution of these lawsuits, which continue to wind their way through the courts to this day.
Mr. Felderhof testified that his US counsel anticipated litigation in Canada and, when hearing that Mr. Felderhof wanted a lawyer that was both aggressive and capable of understanding the geological aspects of the matter, recommended Mr .. Groia. Mr. Felderhoftestified that he had not instructed Mr. Groia as to the manner in which the trial should be conducted and had not made him aware of his desire for an aggressive lawyer. Mr. Felderhof attended the trial only two occasions, and on both occasions Mr. Groia's conduct was "cordial," although both sides appeared to show some frustration.
Mr. Felderhof learned about the issues related to Mr. Groia's conduct when the OSC started the application for judicial review. Mr. Felderhof held Groia in high regard and believed Mr. Groia to be professional and dedicated to defence. Ac'cording to Felderhof, Mr. Groia immersed himself fully in the documents and mastered their technical aspects to his admiration. Mr. Goia continued to represent Mr. Felderhof even though he ran out of money to pay Mr. Groia's firm. Mr. Felderhof still owes Mr. Groia approximately $2 million for unpaid legal fees.

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Nicholas A. Richter was one of Mr. Groia's associates during Phase One of Mr. Felderhofs trial. As an associate in Mr. Groia's firm, he immersed himself in all aspects of the Felderhoftrial and in the defence team's trial preparation and strategy. At the time, he was a newly-minted lawyer, having been called to the bar in 1994. 8 He described the various issues that raised concerns about prosecutorial misconduct, from laying charges without providing particulars, to bargaining on the pmiiculars, to providing highly problematic disclosure from his point of view. Mr. Richter also testified to the unpleasant behaviour of the prosecutors, although he refused to speculate as to what may have caused that behaviour. Mr. Richter described of Mr. Park and the fairness, in his opinion, of the the aggressive evidence provided by Mr. Hubley, the chief investigator of the OSC. He also told the

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panel about the various attempts by the defence to resolve the issues relating to documents and their admissibility at trial. He explained the importance of the documents at length. He also described the differences between how the trial was conducted in Phase One and Phase Two, suggesting that the differences were due to the change of counsel for the osc. 9 [35] With respect to the judicial review proceedings, Mr. Richter testified that the defence did not address the allegations regarding Mr. Groia' s conduct, but rather the claim that Justice Hryn had lost jurisdiction. He testified that the defence team adopted this strategy with the client's interests iii mind. Although he gave some examples of what he considered to be troubling and uncivil conduct by the prosecutors for the OSC, which had not been put before Justice Campbell, he agreed that most of the important issues had been addressed in the factum of the defence. He accepted the authority of the Court of Appeal, but believed that the criticism of Mr. Groia's conduct resulted from the court not being given the complete context of the trial's atmosphere and the defence team's challenges defending Mr. Felderhof. He was also concerned about the "chilling effect" that the Law Society's misconduct allegations against Mr. Groia would have on defence lawyers in the absence of a clear definition of civility. 10 In cross-examination, Mr. Richter admitted Mr. Groia was wrong when he left out the words "simply" or "prime" when describing the public remarks of an OSC spokesperson. That spokesperson had stated to the media that the OSC "simply" sought a conviction on the charges that the OSC had laid against Mr. Felderhof. Mr. Richter explained, however, that Mr. Groia's error was the result of challenging trial circumstances in which the defence team found itself. Furthermore, he admitted that the phrase "conviction filter," which he had coined, was "a little sharp" or "pointed," though not improper. The phrase had been used in the context of behaviour by the OSC that had been very troubling for the defence. 11

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Kevin Richard was called to the bar in 2000. That same year he started working for Groia and Company, and dealt extensively with the issues the Felderhof defence team had raised about the inadequacies and timeliness of the OSC's disclosure. He recounted the disclosure issues - from receiving documents after the trial had started, to dealing with documents held together by brittle elastic bands, documents that could not have been reviewed by the OSC before they were included in the OSC's disclosure materials, to having to review documents at the OSC office.
Mr. Richard confirmed that, by the time of the Stinchcombe application, the defence team had not gone to inspect the documents at the OSC, as there was no reason to believe that the boxes from PricewaterhouseCooper may have contained undisclosed documents. With respect to Phase One of the trial, Mr. Richard described a tense and unfriendly atmosphere, and recalled several episodes during trial when Mr. N aster reacted in a manner "bordering on sarcastic." Yet, as far as Mr. Richard was concerned, neither the prosecution nor the defence attacks had been meant to be taken personally. Finally, with respect to the proceedings before Justice Campbell, Mr. Richard stated that most, though not all, issues regarding the conduct at trial had been put before the judge. 12

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Brian Greenspan was called to the Bar in 1974 and articled at the Ministry of the Attorney General. His practice is focused on criminal law. He was retained to argue the issue of loss of jurisdiction due to Justice Hryn's failure to control the process. He gave evidence that the defence strategy was to convey that there was a single issue at stake: the loss of jurisdiction. Tthe issue of Mr. Groia' s conduct was secondary, and the defence did not respond-point-by-point to the OSC's 634-page factum. Throughout the proceedings, there was insufficient context surrounding the issue of conduct, and the evidentiary record in this respect was incomplete. The defence never undertook to demonstrate, for example, that Mr. Groia's allegations had a reasonable basis. In the witness's view, the Court of Appeal's comments on civility are obiter, and are statements of policy, not of law. At the same time, the statements describing how the allegations of prosecutorial misconduct should have been handled, the Court of Appeal gave necessary directions as to how such motions can be brought, but these general statements of law did not fit how the trial was organized by Justice Hryn. 13

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Mr. Greenspan emphasized the importance of vigorous advocacy in an adversarial system. He agreed that concerns about proper conduct are not new, but considered that the standard had changed over time. In dealing with the issue of civility, he emphasized that the defence lawyer can never lose sight of his obligation to his client, whom he must defend "aggressively, vigorously, and fiercely." 14
Stanley Fisher was called to the Bar in 1961 and has vast experience in litigation. In the Felderhof matter, he was retained to argue the costs issue in the Court of Appeal. He argued that the civil rule regarding costs should apply, and did not concern himself with Mr. Groia's conduct.
Mr. Fisher, the first recipient of the Marvin Katzman civility award, testified that he had seen and used sarcasm many times. He considered sarcasm to be part of the lawyer's arsenal, as he engages in the art of litigation. Possible limits to sarcasm would be hard to define, since sarcasm is context-bound. Furthermore, when the tension between zealous advocacy and the rules of professional conduct is particularly acute, the choice of pursuing zealous advocacy would be understandable. There is a public interest in both fearless advocacy and public respect for courts and the administration of justice. This tension is best gauged by the trial judge. 15

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Professor Alice Woolley is a member of the Law Society of Alberta and a full professor at the University of Calgary, Faculty of Law. She specializes in legal ethics, administrative law and energy regulation, and has authored and co-authored two textbooks on legal ethics. In her testimony, she criticized the inclusion of a requirement of civility in the Rules of Professional Conduct as hampering vigorous advocacy, particularly in the realm of criminal defence, and as being too vague to be meaningful. She agreed, however, that zealous advocacy is possible (and should be practised) within the boundaries of law, and that the Rules of Professional Conduct are part of the law. The law must be respected, even when we disagree with it, but the law can be complicated for laypersons; access to lawyers is therefore crucial. She dwelt on the particular advocacy of the Crown, who must seek a legitimate result, rather than a conviction, and on the role of the defence, which must ensure that the Crown is held to account and that the process

remains substantively accurate and procedurally fair. For these roles to be fulfilled, civility should be given a clear definition and be accompanied by meaningful guidelines. The Law Society can disagree with judges, given the difference of interests and mandates, and given judges' loss of sensitivity to the difficulties of practising zealous advocacy within the boundaries of law. 16 [44] Although the Law Society did not object to the hearing panel receiving Professor Woolley's evidence, we have concluded that while her testimony was interesting and thought-provoking, it added nothing to the views she has already expressed elsewhere in her academic writing on the subject. Nothing in her testimony changes the fact that our Rules of Professional Conduct require lawyer licensees of the Law Society to conduct themselves with civility and to treat the court, their adversaries and litigants with courtesy. Nothing in her testimony changes the fact that this professional obligation has been part of our Rules of Professorial Conduct in one form or another for many years, and certainly well before the events of the Felderhoftrial. Thus, it would appear that if there has been some sort of "chilling" effect on defence lawyers in recent years, an assertion we do not accept, it must come not from the existence of a professional prohibition against uncivil or discourteous conduct, but rather from the Law Society's decision to commence discipline proceedings against licensees for allegedly failing to observe the prohibition.
It was clear from Professor Woolley's testimony that she believes that a prohibition against incivility should not form part of our Rules of Professional Conduct. The authorities and leamed commentary cited by the Law Society suggest otherwise. This hearing panel, however, does not have the authority to decide this policy question. As we held in our reasons dismissing a motion for leave to intervene in this proceeding made by the Criminal Lawyers' Association:

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The Hearing Panel agrees that its task is to apply the Rules of Professional Conduct to the facts as found by the evidence properly introduced at the hearing. It should not engage in a wide-ranging inquiry into the policy behind the Rules. The Hearing Panel does not serve a policy-making function. Whether certain of the Rules of Professional Conduct are justified from a policy perspective is the purview of Convocation. This is not to say, however, that adjudication of the issues on this application, or for that matter on any application, is a purely mechanical exercise. In his defence, Mr. Groia has raised a number of significant legal questions. These issues will require the Hearing Panel to consider carefully the authorities and submissions of counsel. The applicable Rules cannot be interpreted in a vacuum. They must be interpreted in the context of the overarching substantive legal principles that have been raised by Mr. Groia in his defence. 17 [47]

Joseph Groia testified before the hearing panel in his own defence. Much of Mr. Groia's testimony-in-chief consisted of commenting on the various portions of the transcript of proceedings before Justice Hryn that were presented to him by counsel. As with the other witnesses, much of Groia's testimony focused on the conduct of the OSC prosecutors,

Mr. Naster in particular, to justify his conduct during the trial before Justice Hryn. [48] When cross-examined, Mr. Groia commented at some length on what he described as the "civility movement". Groia agreed with the general proposition that one could stay within the Rules of Professional Conduct, but not the rules of civiljty as. he "heard them discussed and bandied about". 18 Groia repeated on more than one occasion that he did not understand what it meant to be civil or uncivil, and did not find his conduct in R. v. Felderhofto have been uncivil or unprofessional. 19

LAW SOCIETY'S ROLE IN REGULATING CIVILITY What is civility?

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Civility in the courtroom and practice in general is a requirement found in the Rules of Professional Conduct and the Professional Conduct Handbook, 1999. The requirements of a lawyer to be civil and courteous and to act in good faith to the court and any other party are not new. While lawyers have a duty to defend a client vigorously and zealously, in particular in the context of a criminal trial, this duty has always been qualified by the rules that govern professional conduct. The relevant provisions of Rule 4 of the Rules ofProfessional Conduct state:
Advocacy

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4.01 (1) When acting as an advocate, a lawyer shall represent the client resolutely and honourably within the limits of the law while treating the tribunal with candour, fairness, courtesy, and respect.

Courtesy

(6) A lawyer shall be courteous, civil, and act in good faith to the tribunal and with all persons with whom the lawyer has dealings in the course of litigation. [51] Commentary to the Rules of Professional Conduct spells out the following underlying rationales for the requirement of civility. Commentary to Rule 4.01(1) provides: The lawyer has a duty to the client to raise fearlessly every issue, advance every argument, and ask every question, however distasteful, which the lawyer thinks will help the client's case and to endeavour to obtain for the client the benefit of every remedy and defence authorized by law. The lawyer must discharge this duty by fair and honourable means, without illegality and in a manner that is consistent with the lawyer's duty to treat the tribunal with candour, fairness, comiesy and respect and in a way that promotes the parties' right to a fair hearing where justice can be done. Maintaining dignity, decorum, and courtesy in the courtroom is not an empty formality because, unless order is maintained, rights cannot be protected. 10

This rule applies to the lawyer as advocate, and therefore extends not only to court proceedings but also to appearances and proceedings before boards, administrative tribunals, arbitrators, mediators, and others who resolve disputes, regardless of their function or the informality of their procedures. [52] Commentary to Rule 4.01(6) reads: Legal contempt of court and the professional obligation outlined here are not identical, and a consistent pattern of rude, provocative, or disruptive conduct by the lawyer, even though unpunished as contempt, might well merit discipline. [53] The relevant portions of Rule 6 of the Rules of Professional Conduct provide:
Courtesy and Good Faith

6.03 (1) A lawyer shall be courteous, civil, and act in good faith with all persons with whom the lawyer has dealings in the course of his or her practice.

Communications

(5) A lawyer shall not in the course of professional practice send correspondence or otherwise communicate to a client, another legal practitioner, or any other person in a manner that is abusive, offensive, or otherwise inconsistent with the proper tone of a professional communication from a lawyer. [54] Commentary to Rule 6.03(1) to (7) of the Rules ofProfessional Conduct reads: The public interest demands that matters entrusted to a lawyer be dealt with effectively and expeditiously, and fair and courteous dealing on the part of each lawyer engaged in a matter will contribute materially to this end. The lawyer who behaves otherwise does a disservice to the client, and neglect of the rule will impair the ability of lawyers to perform their function properly. Any ill feeling that may exist or be engendered between clients, particularly during litigation, should never be allowed to influence lawyers in their conduct and demeanour toward other legal practitioners or the parties. The presence of personal animosity between legal practitioners involved in a matter may cause their judgment to be clouded by emotional factors and hinder the proper resolution of the matter. Personal remarks or personally abusive tactics interfere with the orderly administration of justice and have no place in our legal system. A lawyer should avoid ill-considered or uninformed criticism of the competence, conduct, advice, or charges of other legal practitioners, but should be prepared,

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when requested, to advise and represent a client in a complaint involving another legal practitioner. [55] The Council of the Federation of Law Societies of Canada has adopted a Model Code of Professional Conduct? 0 The Model Code is now being considered for implementation by each ofthe law societies of Canada. Rule 4.01 ofthe Model Code states:

Advocacy
4.01 (1) When acting as an advocate, a lawyer must represent the client resolutely and honourably within the limits of the law, while treating the tribunal with candour, fairness, courtesy, and respect.

Commentary
Role in Adversarial Proceedings - In adversarial proceedings, the lawyer has a duty to the client to raise fearlessly every issue, advance every argument and ask every question, however distasteful, that the lawyer thinks will help the client's case and to endeavour to obtain for the client the benefit of every remedy and defence authorized by law. The lawyer must discharge this duty by fair and honourable means, without illegality and in a manner that is consistent with the lawyer's duty to treat the tribunal with candour, fairness, courtesy and respect and in a way that promotes the parties' right to a fair hearing in which justice can be done. Maintaining dignity, decorum and courtesy in the courtroom is not an empty formality because, unless order is maintained, rights cannot be protected.

Courtesy
4.01 (5) A lawyer must be courteous and civil and act in good faith to the tribunal and all persons with whom the lawyer has dealings.

Commentary
Legal contempt of court and the professional obligation outlined here are not identical, and a consistent pattern of rude, provocative or disruptive conduct by a lawyer, even though unpunished as contempt, may constitute professional misconduct. [56] In addition to this regulatory framework, the principle of civility is found in numerous guidelines that serve as a reference for professional conduct. For example, the Principles ofCivilityfor Advocates published by The Advocates' Society in Ontario provide:

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General Guidelines

1. Advocates should always be courteous and civil to counsel engaged on the other side of the lawsuit or dispute. It is their responsibility to require those under their supervision to conduct themselves with civility as well.

Comments Made about Opposing Counsel

26. Advocates should avoid ill-considered or uninformed criticism of the competence, conduct, advice, appearance or charges of other advocates; however, they should be prepared, when requested, to advise and represent a client in a complaint involving another advocate. 27. Advocates should not attribute bad motives or improper conduct to opposing counsel, except when relevant to the issues of the case and well-founded. If such improper conduct amounts to a violation of applicable disciplinary rules, however, advocates should report such conduct to the appropriate professional disciplinary authority. 28. Advocates should avoid disparaging personal remarks or acrimony toward opposing counsel. 29. Advocates should not ascribe a position to opposing counsel that they have not taken, or otherwise seek to create an unjustified inference based on opposing counsel's statements or conduct. [57] The principles of civility, courtesy and good faith are also found in Chapter IX of the Code ofProfessional Conduct ofthe Canadian Bar Association:

RULE
When acting as an advocate, the lawyer must treat the court or tribunal with courtesy and respect and must represent the client resolutely, honourably and within the limits of the law. COMMENTARIES Courtesy 16. The lawyer should at all times be comieous, civil, and act in good faith to the comi or tribunal and to all persons with whom the lawyer has dealings in the course of an action or proceeding. Legal contempt of court and the professional obligation outlined here are not identical, and a consistent pattern of rude, provocative or disruptive conduct by the lawyer, even though not punished as contempt, might well merit disciplinary action.

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While there is no single definition of civility, the above sources make it clear that lawyers have a duty to act in good faith, with respect and courtesy to the court, and to all persons with whom they deal in the course of their professional practice. This duty to act with civility and courtesy was recently reaffirmed by the unanimous Supreme Court of Canada in Dare V. Barreau du Quebec, 2012 sec 12. The issue before the Court in Dare was whether the decision of the Barreau du Quebec to reprimand a lawyer for writing a private letter to a judge, in which the lawyer criticised certain comments made by the judge at trial and in his reasons for judgment, violated the lawyer's freedom of expression contrary to s. 2(b) of the Canadian Charter of Rights and Freedoms. While civility was not directly before the Court in Dare, the main issue required the Court to balance "the fundamental importance of open, and even forceful, criticism of our public institutions with the need to ensure civility in the profession" (para. 66). In dealing with the main issue, the Court made the following extensive comments on civility: [61] No party in this dispute challenges the importance of professional discipline to prevent incivility in the legal profession, namely "potent displays of disrespect for the participants in the justice system, beyond mere rudeness or discourtesy" (Michael Code, "Counsel's Duty of Civility: An Essential Component of Fair Trials and an Effective Justice System" (2007), 11 Can. Crim. L.R. 97, at p. 101; see also Gavin MacKenzie, Lawyers and Ethics: Professional Responsibility and Discipline (5th ed. 2009), at p. 8-1). The duty to encourage civility, "both inside and outside the courtroom", rests with the courts and with lawyers (R. v. Felderhof (2003), 68 O.R. (3d) 481 (C.A.), at para. 83).

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[68] Lawyers potentially face criticisms and pressures on a daily basis. They are expected by the public, on whose behalf they serve, to endure them with civility and dignity. This is not always easy where the lawyer feels he or she has been unfairly provoked, as in this case. But it is precisely when a lawyer's equilibrium is unduly tested that he or she is particularly called upon to behave with transcendent civility. On the other hand, lawyers should not be expected to behave like verbal eunuchs. They not only have a right to speak their minds freely, they arguably have a duty to do so. But they are constrained by their profession to do so with dignified restraint. [69] A reprimand for a lawyer does not automatically flow from criticizing a judge or the judicial system. As discussed, such criticism, even when it is expressed robustly, can be constructive. However in the context of disciplinary hearings, such criticism will be measured against the public's reasonable expectations of a lawyer's professionalism. [Emphasis added] [60] Similarly, in R. v. Felderhof [supra, at footnote 4], the Comi of Appeal for Ontario discussed the requirement of civility in the following terms:

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[83] It is important that everyone, including the courts, encourage civility both inside and outside the courtroom. Professionalism is not inconsistent with vigorous and forceful advocacy on behalf of a client and is as important in the criminal and quasi-criminal context as in the civil context. Morden J.A. of this court expressed the matter this way in a 2001 address to the Call to the Bar: "Civility is not just a nice, desirable adornment to accompany the way lawyers conduct themselves, but, is a duty which is integral to the way lawyers do their work." Counsel are required to conduct themselves professionally as part of their duty to the court, to the administration of justice generally and to their clients. As Kara Anne Nagorney said in her article, "A Noble Profession? A Discussion of Civility Among Lawyers" (1999), 12 Georgetown Journal of Legal Ethics 815, at 816-17, "Civility within the legal system not only holds the profession together, but also contributes to the continuation of a just society. Conduct that may be characterized as uncivil, abrasive, hostile, or obstructive necessarily impedes the goal of resolving conflicts rationally, peacefully, and efficiently, in turn delaying or even denying justice." Unfair and demeaning comments by counsel in the course of submissions to a court do not simply impact on the other counsel. Such conduct diminishes the public's respect for the court and for the administration of criminal justice and thereby undermines the legitimacy of the results of the adjudication. [84] Nothing said here is inconsistent with or would in any way impede counsel from the fierce and fearless pursuit of a client's interests in a criminal or quasi-criminal case. Zealous advocacy on behalf of a client, to advance the client's case and protect that client's rights, is a cornerstone of our adversary system. It is "a mark of professionalism for a lawyer to firmly protect and pursue the legitimate interests of his or her client" (Nagorney, supra, at 817). As G. Arthur Martin said, "The existence of a strong, vigorous and responsible Defence Bar is essential in a free Society" ("The Practice of Criminal Law as a Career" reprinted in 2002 Law Society of Upper Canada Gazette at 93 [emphasis added]). Counsel have a responsibility to the administration of justice, and as officers of the court, they have a duty to act with integrity, a duty that requires civil conduct (See Chief Justice of Ontario Advisory Committee on Professionalism, "Defining Professionalism").

[96] This has nothing to do with trials not being "tea parties". Every counsel and litigant has the right to expect that counsel will conduct themselves in accordance with The Law Society of Upper Canada, Rules of Professional Conduct. Those rules are crystal clear. Counsel are to treat witnesses, counsel and the court with fairness, courtesy and respect. [61] In Law Society of Upper Canada v. MmJ; lvfartha Coady, 21 the hearing panel observed that a lawyer "does not have an unfettered right to say or write anything she pleases to advance her cause or the cause of her client. The privilege of practising law comes with responsibilities to clients, to the courts, to the public, and even to opposing counsel. " 22

15

[62]

The panel rejects Mr. Groia's submissions that incivility necessarily requires the use of a profane language, extreme rudeness, violence, harassment or racial epithets. 23 A pattern of conduct that includes persistent attacks and sarcasm directed at opposing counsel can form the basis of incivility. As is apparent from Commentary to Rules 4.01(6) and 6.03(1) to (7) of the Rules of Professional Conduct, a consistent pattern of rude, provocative, or disruptive conduct by the lawyer, as well as ill-considered or uninformed criticism of the competence, conduct, advice, or charges of another lawyer, might merit discipline.

Why is civility important?

[63]

The requirement of civility is more than good manners in the courtroom and practice. Rather, the rationale underlying the requirement of civility reflects a concern with the effect of incivility on the proper functioning of the administration of justice and public perception of the legal profession. Commentary to the Rules of Professional Conduct, cited above, provides a number of compelling reasons for requiring a standard of civility in the Rules of Professional Conduct. As is apparent from the Commentary, the requirement of civility and courtesy in the courtroom serves to ensure that a client's rights are protected, that matters before the court are dealt with effectively and expeditiously, and that animosity between lawyers does not interfere with proper resolution of the matter before the court. Our system of justice is based on the premise that legal disputes should be resolved rationally in an environment of calm and measured deliberation, free from hostility, emotion, and other irrational or disruptive influences. Incivility and discourteous conduct detracts from this environment, undermines public confidence and impedes the administration of justice and the application of the rule of law. Put differently, incivility can compromise trial fairness, and in the context of a criminal trial in particular, the accused's right to a full answer and defence. In R. v. Felderhof, the Court of Appeal described the effect of incivility on the administration of justice as follows: Unfair and demeaning comments by counsel in the course of submissions to a court do not simply impact on the other counsel. Such conduct diminishes the public's respect for the court and for the administration of criminal justice and thereby undermines the legitimacy ofthe results ofthe adjudication. (para. 83)

[64]

[65]

[66]

[67]

Similarly, in Marchand v. The Public General Hospital Society of Chatham, the Ontario Comi of Appeal recognized that uncivil conduct by counsel can impact on the fairness of a trial: "The issue before us, however, centres not on the conduct of counsel but its impact on the.fairness ofthe trial." ((2000), 51 OR (3d) 97; 138 OAC 201 at para. 141) [Emphasis added] In this regard, the panel also finds persuasive the following comments of Michael Code, "Counsel's Duty of Civility: An Essential Component of Fair Trials and an Effective

[68]

16

Justice System" (2007), 11 Can. Crim. L.R. 97. He summarizes the ways in which civility can affect trial fairness: First, when incivility goes beyond mere rudeness and discourtesy and takes the form of a personal attack on opposing counsel's competence or integrity, it seems self-evident that the lawyer who is the object of such an attack will be deflected and distracted from his/her essential work. Instead of planning and preparing the evidence and arguments as to the merits of the case, counsel who is under personal attack will become preoccupied with defending their own conduct. The client's case on the merits is likely to suffer as a result of this distraction. Second, this kind of personal acrimony and recrimination between counsel also distracts and deflects the trier. Instead of focusing on the real issues in the case, the trier becomes preoccupied with managing the personal conflicts between counsel. Third, serious personal disputes and disrespect between counsel lengthens and delays court proceedings. On a very simple level, delays are caused by repeated arguments in court in which the trial judge is asked to hear and resolve the various allegations between counsel. On a more profound level, delays are caused when counsel are no longer communicating appropriately and, as a result, they become incapable of resolving the many non-contentious issues that arise in the course of a trial. The norms of rational and respectful discourse, which result in the out of court resolution of most cases and most issues, are no longer possible when the relationship between counsel has been fractured by serious incivility. Fourth, the parties and the public lose confidence in the administration of justice when incivility breaks out during a trial. If court rooms are allowed to become places where posturing lawyers endlessly bait and attack each other, rather than places that efficiently and effectively resolve litigants' disputes, the essential role and legitimacy of the justice system is undermined. (Supra, at p. 105) [69] The panel therefore rejects Mr. Groia's submissions that the duty of civility can compromise a lawyer's duty to defend a client vigorously and zealously in a criminal proceedings. 24 The panel is not persuaded by Mr. Groia's evidence that civility will have a chilling effect on the ability of defence lawyers to defend their client. As we have previously observed, the lawyer's obligation of civility and courtesy has been part of our rules of professional conduct for a long time. There is no evidence that these long-standing obligations have fettered or encumbered the lawyer's duty to defend her client resolutely within the limits of the law. Moreover, the Rules of Professional Conduct serve to ensure a rational, calm environment, which leads to better and more timely decisions. Thus, when lawyers observe the rules governing professional conduct, civility enhances, rather than detracts from, a more efficient justice system, prevents unfair outcomes and promotes greater access to justice for accused persons. The panel also does not accept Mr. Groia' s evidence that "the sweeping ambit of the

[70]

[71 J

17

civility movement" is a new phenomenon. 25 This evidence suggests that at the time of the trial in R. v. Felderhof, the standards of professional civility were somehow different from what they are today or what they were at the time of the Felderhoftrial. [72] As can be seen from the specific rules governing civility and the decisions in Felderhof, Marchand and Dare, the requirement of civility in the legal profession is not new. Rather, as some commentators observe, the legal profession has witnessed a decline in civility standards over the years. In a "Call to the Bar Address" delivered in February 2001, the then Associate Chief Justice Morden expressed this concern in the following terms: There is a general concern that standards of civility in the profession are declining. Civility is not just a nice, desirable, adornment, to accompany the way lawyers conduct themselves, but, is a duty which is integral to the way lawyers are to do their work. In the field of litigation, civility is the glue that holds the adversary system together, that keeps it from imploding. [73] Similarly, Michael Code suggests that cases such as Felderhof "are not isolated aberrations but are part of a disturbing pattern. All of these cases cause great harm to the repute of the administration of justice and solutions must be found." (Supra at p. 135)

Who should regulate civility?


[74] In Marchand, the Court of Appeal recognized that civility in the courtroom is a shared responsibility of the bench and bar: [148] Just as civility in the courtroom is very much the responsibility of counsel, it is also very much the responsibility of the trial judge. It is shared responsibility of profound importance to the administration of justice and its standing in the eyes ofthe public it serves. (para. 148). [75] The panel, however, recognizes that while these responsibilities are shared, they are carried out differently. Judges have inherent jurisdiction to control the trial process, and their ability to regulate counsel's conduct is limited to that extent. At the risk of being accused of bias, a judge may exhort an uncivil or discourteous lawyer to refrain from such conduct. If exhortation and orders restraining the conduct fail, a judge has the authority to make a contempt order or, in some contexts, the authority to award costs against the lawyer. These judicial remedies, however, are blunt instruments, instruments that the judiciary is naturally reluctant to employ except in extreme circumstances. The legal profession is self-regulating. The privilege of self-regulation is an impmiant aspect of the maintenance of an independent bar. An independent bar is necessary to the functioning of a free and democratic society. For these reasons, the judiciary in this province has no authority to discipline a lawyer for professional misconduct. This exclusive authority rests with the Law Society. The Law Society is charged with, among other responsibilities, the responsibility of disciplining lawyers who fail to observe the rules of professional conduct. This responsibility must always be exercised in the public

[76]

18

interest. [77] To require or expect a judge to enforce the Rules of Professional Conduct to the same extent as a hearing panel of the Law Society would rightly be perceived as an infringement on the independence of the bar and, in some cases, lead to a perception of bias. Thus, the regulation and disciplining of "[t]he unprofessional conduct of counsel is a matter for the Law Society of Upper Canada" (Ibid. at para. 143). Law Societies, as self-governing professional bodies, are uniquely positioned to enforce civility through conduct proceedings. The authority to discipline licensees for alleged incivility in the courtroom is recognized in the Law SocietyAct, which gives the Hearing Panel of the Law Society the exclusive jurisdiction to discipline the Law Society's members who breach the Rules of Professional Conduct and provides for a range of conduct orders that the Hearing Panel can make pursuant to subsection 35(1). This authority ensures the independence of the bar by allowing the profession to govern itself and to demonstrate to the public that the profession regulates licensees' conduct and enforces their adherence to the Rules ofProfessional Conduct (s. 4.1). The self-governing aspect of law societies in the public interest, as well as the unique position of their disciplinary panels to determine when incivility crosses the line, is wellrecognized. In Pearlman v. Manitoba Law Society Judicial Committee, [1991] 2 S.C.R. 869, Iacobucci J., for the unanimous Supreme Court of Canada, held that a provincial legislature's choice to entrust the protection of the public interest to the legal profession itself should be respected: To my mind, a large part of effective self-governance depends upon the concept of peer review. If an autonomous Law Society is to enforce a code of conduct among its members, as indeed is required by the public interest, a power to discipline its members is essential. It is entirely appropriate that an individual whose conduct is to be judged should be assessed by a group of his or her peers who are themselves subject to the rules and standards that are being enforced. As Monnin C.J.M. recognized in Re Law Society of Manitoba and Savino, supra (at pp. 292-93): Our Legislature has given the benchers the right to pass rules and regulations as well as the right to enforce them. It would be ridiculous and lacking in common sense to call upon another body of men and women to hear and dispose of complaints of professional misconduct. Professional misconduct is a wide and general term. It is conduct which would be reasonably regarded as disgraceful, dishonorable, or unbecoming of a member of the profession by his well respected brethren in the group -persons of integrity and good reputation amongst the membership.

[78]

[79]

No one is better qualified to say what constitutes professional misconduct than a group ofpracticing barristers who are themselves subject to the rules established by their governing body. [Emphasis added.]

19

[80]

The panel therefore rejects Mr. Groia's submission that the authority of the Law Society to regulate civility infringes on the independence of the bar and the judiciary. On the contrary, this authority enhances the self-governing aspect of the legal profession and promotes both judicial independence and the independence of the bar.

PREVIOUS FINDINGS OF THE COURTS

[81]

Before proceeding with adjudication of the substantive issues raised by this application, we are compelled to address the impact in these proceedings of the statements made by the Superior Court of Ontario and affirmed by the Court of Appeal for Ontario in R. v. Felderhof We have previously concluded that the reasons for decision of the Superior Court and the Court of Appeal may be admitted as evidence pursuant to Rule 24.08(1) of the Rules of Practice and Procedure, and that this evidence can be considered in the context of other evidence introduced at the hearing. At that time, we also determined that the significance and weight of those decisions would have to be determined once all of the evidence has been received? 6 In its closing submissions to the hearing panel, the Law Society argues that certain findings are binding on the panel as a matter of law and practice, and that re-litigation of the issues determined by the Superior Court and the Court of Appeal is prevented by the doctrine of abuse of process. 27 In the alternative, the Law Society says that the findings should be admitted as prima facie proof of the allegations of professional misconduct. 28 Mr. Groia submits that the reasons for decision are inadmissible as proof of evidence against him in this proceeding pursuant to Rule 24.07(2) of the Rules of Practice and Procedure, as well as under the common law principles of res inter alios acta because he was not a party in the proceedings before the Superior Court and Court of Appeal. In addition, he submits that the issue before the Superior Court was whether Justice Hryn had lost jurisdiction over the trial, rather than Mr. Groia's conduct. Mr. Groia also notes that the statements in the reasons for decision that are critical of his conduct are not findings of fact, but obiter, and do not bind the panel paras. 51-70. 29 We are of the view that while the reasons for decision of the Superior Court and the Court of Appeal are not binding on the panel as a matter of law and practice, they are admissible and can be considered by the panel for their persuasive value. We are guided in this view by British Columbia (Attorney General) v. Malik, 2011 SCC 18. In Malik, the issue before the Supreme Court of Canada was whether a prior judgment in a criminal case was admissible in a subsequent interlocutory proceeding. The Court concluded that it was admissible as evidence in subsequent interlocutory proceedings as proof of its findings and conclusions, if the parties were the same or were themselves participants in the prior proceedings on similar or related issues (paras. 7 and 52). The Comi also clarified the circumstances in which a prior judgment is admissible at trial, including administrative or disciplinary proceedings:

[82]

[83]

[84]

[85]

[86]

20

[46] Whether or not a prior civil or criminal decision is admissible in trials on the merits - including administrative or disciplinary proceedings - will depend on the purpose for which the prior decision is put forward and the use sought to be made of its findings and conclusions. On this point I agree with Del Core (which was not an interlocutory proceeding) that it "would be highly undesirable to replace this arbitrary rule [in Hollington v. F. Hewthorn & Co.] by prescribing equally rigid rules to replace it" (p. 22). [47] I agree, as well, with the Ontario Court of Appeal in Del Core that the prior proceedings may be admissible but the "weight and significance" to be given to them "will depend on the circumstances of each case" (p. 21 ). [87] According to Malik, at the very least, the panel is entitled to take notice of prior decisions of the Superior Court and the Court of Appeal. Moreover, the Law Society was required to make full and frank disclosure of all relevant facts to the panel in these proceedings, including drawing the panel's attention to those prior decisions (Ibid. at para. 38). In Coady, supra, the hearing panel found previous findings of the Superior Court, as well as the decisions of the Divisional Court or the Court of Appeal where those findings were upheld, to be compelling evidence of Coady's conduct, even though those proceedings did not involve allegations of misconduct. Those proceedings included a mortgage action, assessment proceedings in respect of solicitor accounts that Coady rendered, an action by the municipality against Coady and her mother in respect of certain property, and litigation between Coady and her ex-husband following the breakdown of their marriage. It was Coady's conduct in the course of those proceedings that formed the basis of the Law Society's allegations of professional misconduct against her. Finally, we note that Coady was not a party in some of the proceedings considered in her case, but was, like Mr. Groia, counsel to a party in some of those proceedings, the records of which were introduced by the Law Society as evidence of her misconduct. The panel in Coady relied on the decision of the Supreme Court of Canada in Toronto (City) v. Canadian Union of Public Employees (C. UP.E.), Local 79, 2003 SCC 63, to conclude that it could consider the record of prior proceedings: [11] We are also mindful of our role as an adjudicative panel. We constitute a Hearing Panel that is subject to the supervision of the Appeal panel and the Superior Court. Much of the evidence introduced by the Society is the record of proceedings in the Ontario Court (General Division), now the Superior Court of Justice, and the appellate courts. The record includes numerous reasons for decision, endorsements, orders and judgments that have been made against Coady. Clear and unequivocal findings of fact are found in many of these documents. Given that these findings have been made by judges of the Superior
Court of Justice after fitll and exhaustive consideration of the evidence before them, and given that their findings and conclusions have for the most part been upheld by the Divisional Court or the Court of Appeal for Ontario, we consider them in this proceeding to be compelling evidence of Coady's conduct. In our view, in the absence of new or compelling evidence that was not considered by the

[88]

[89]

21

judges in those judicial proceedings, we should not make different findings from those made by the justices of the Superior Court, confirmed on appeal. To do so would be to permit a collateral attack against those findings and would result in an abuse ofprocess. [Emphasis added]

[90] [91]

The panel's findings of professional misconduct in Coady were subsequently upheld by the appeal panel of the Law Society. 30 Mr. Groia was not a party to the proceedings before the Superior Court and the Court of Appeal in R. v. Felderhof The central question in those proceedings, as framed by the OSC, was whether Justice Bryn should be removed due to jurisdictional errors, rather than Mr. Groia's conduct at the trial before Justice Bryn. However, as Justice Campbell noted in his reasons for judgment on Mr. Groia's application for costs of judicial review, it was Mr. Groia's conduct at trial that triggered the application by the OSC: [17] As noted in the judgment, the conduct of neither side is completely free from difficulty. The problems were not caused solely by the defence and the prosecution must bear a measure of responsibility for rising to Mr. Groia's bait and for questioning rulings of the court. On the other hand, Mr. Groia's unacceptable conduct was an essential triggering cause of the application. [18] That conduct was vigorously attacked and vigorously defended. It was unnecessary on the application to pass judgment on his litigation style because it did not affect the jurisdiction of the trial judge. See para 273. On this costs motion, however, the nature and impact of his conduct must be considered to the extent that it triggered the application. Mr. Groia's conduct on significant occasions during the trial, including some of the conduct noted in paragraphs 3134, 89- 92, 190- 91, and 268-273 was appallingly unrestrained and on occasion unprofessional. In light of this conduct the prosecutor's application, although unsuccessful, was reasonable. [Emphasis added] 31

[92]

Justice Campbell's reasons on the costs motion are unequivocal in stating that Mr. Groia's conduct was an issue raised squarely by the OSC and that Mr. Felderhofs counsel joined issue. Indeed, Mr. Felderhof retained Brian Greenspan to carry this issue in the Court of Appeal. It is telling that Mr. Felderhof never actually met with or spoke to Brian Greenspan before Mr. Greenspan was retained to argue the civility issue. Perhaps, as a matter of form, Mr. Groia was not a party to the proceeding and did not pmiicipate in the mooting of the civility issue, but as a matter of substance, the evidence does not support this conclusion. The panel therefore does not accept Mr. Groia's position that his conduct was deliberately not defended on the application before Justice Campbell, and that the comments in the reasons for decision critical of Mr. Groia's conduct should properly be interpreted as mere obiter dicta. The foregoing statements of Justice Campbell clearly indicate that Mr. Groia's conduct was both attacked and defended. The specific findings that Justice Campbell subsequently made with respect to Mr. Groia's conduct were central to the ruling on the alleged loss of the trial judge's jurisdiction. Those findings were also

[93]

22

confirmed on appeal by the Court of Appeal. [94] On the evidence, the panel is not persuaded that the submissions made on behalf of Mr. Felderhof to Justice Campbell regarding Mr. Groia's conduct were simply confined to "address[ing] that ground" in the OSC allegations, as opposed to "defending" Groia's conduct. 32 This evidence is not supported by the findings made by the Justice Campbell and the conclusions of the Court of Appeal. The submissions of the interveners in the Court of Appeal, which focused on the issue of civility further confirm that Groia' s conduct was a live issue. Thus, the panel disagrees with Mr. Greenspan who characterzied the extensive statements on civility made by the Court of Appeal as statements of"policy," rather than statements oflaw. 33 While the panel is not bound by those findings, to permit their re-litigation in the circumstances would, in our opinion, amount to an abuse of process. The panel therefore concludes that the reasons for decision of the Superior Court and the Court of Appeal are admissible and can be considered as evidence of misconduct.

[95]

[96]

PARTICULARS

[97]

The Law Society sets out the particulars of the alleged professional misconduct at paragraph 3 of the Notice of Application. The Law Society alleges that, while acting as counsel for Mr. Felderhof in the proceedings before Justice Hryn, as supported by the reasons for decision of the Ontario Superior Court of Justice in its decisions, dated October 31, 2002 and February 13, 2003, and by the reasons for decision ofthe Court of Appeal for Ontario in its decision, dated December 10, 2003, Mr. Groia: a. failed to treat the Court with courtesy and respect because of Mr. Groia' s consistent pattern of rude, improper or disruptive conduct between December 22, 1999 and October 31, 2000, contrary to Rule 10 of the Professional Conduct Handbook, 1999 Ed.; failed to act in good faith, and failed to conduct himself in a fair, courteous, respectful, and civil manner to the Court, between November 1, 2000 and April 5, 2001, contrary to Rule 4.01(1) and 4.01(6) of the Rules of Professional Conduct; undermined the integrity of the profession by communicating with the prosecutors for the OSC in a manner that was abusive, offensive, or otherwise inconsistent with the proper tone of a professional communication from a lawyer between December 22, 1999 and October 31, 2000, contrary to Rule 13 of the Professional Conduct Handbook, 1999 Ed.; communicated with the prosecutors for the OSC in a manner that was abusive, offensive, or otherwise inconsistent with the proper tone of a professional communication from a lawyer between November 1, 2000 and April 5, 2001, contrary to Rule 6.03(5) of the Rules of Professional Conduct;

b.

c.

d.

23

e.

failed to act with courtesy and good faith by engaging in ill-considered or uninformed criticism of the conduct of the prosecutors for the OSC between December 22, 1999 and October 31, 2000, contrary to Rule 14 of the Professional Conduct Handbook, 1999 Ed.; and failed to be courteous, to be civil and to act in good faith toward the prosecutors for the OSC between November 1, 2000 and April 5, 2001, contrary to Rule 6.03(1) ofthe Rules ofProfessional Conduct.

f.

[98]

The particulars of alleged misconduct against Groia span the period covered by both the pre-2000 and post-2000 Rules of Professional Conduct. Rules 10, 13 and 14 of the pre2000 Rules ofProfessional Conduct state: Rule 10. When acting as an advocate the lawyer, while treating the tribunal with courtesy and respect, must represent the client resolutely and honourably within the limits of the law. Rule 13. The lawyer should assist in maintaining the integrity of the profession and should participate in its activities. Rule 14. The lawyer's conduct towards other lawyers should be characterized by courtesy and good faith.

[99]

In this case, there is a considerable overlap between the evidence tendered in support of the variousparticulars of alleged misconduct, and the panel will deal with the particulars together. As we previously concluded on Groia's motion to strike, the Notice of Application is not a "form of an indictment" (Law Society of Upper Canada v. Stevens (1979), 55 O.R. (2d) 405 (Div. Ct.), at p. 5; Re Cwinn and Law Society of Upper Canada, [1980] O.J. No. 3548 (Div. Ct.), at para. 10.), that it should not be critiqued in 'an overly technical manner,' and that it need only "fairly" disclose the case against the respondent" (Law Society of Upper Canada v. Miller, [2007] L.S.D.D. No.26 at paras. 189-190.) The Notice of Application must give the respondent "reasonable notice of the allegations made against him so that he can fully and adequately defend himself." (Law Society of British Columbia v. Malik, [2009] L.S.D.D. No. 96, at paras. 46-50.) 34 There is a considerable overlap between the particulars of alleged misconduct, and the panel will therefore deal with those particulars together.

[1 00]

Wells Submission and Motion for Particulars

[1 01] From the outset, Mr. Groia considered that the OSC treated Mr. Felderhof unfairly, by denying him the benefit of a "Wells Notice" of the proceedings. A Wells Notice is a letter that securities regulators typically send to individuals or corporations to advise that the regulator is about to lay charges against them, and to provide that individual or corporation with an opportunity to respond as to why charges should not be laid. Instead of a Wells Notice, the OSC faxed the charges against Mr. Felderhofto Mr. (rroia's office, one day after the RCMP announced that it was not laying charges against Mr. Felderhof.

24

Mr. Groia testified that, in the absence of a Wells Notice, Mr. Felderhof did not have the opportunity to make submissions to the OSC prior to the laying of charges and was unprepared to respond to the media. [1 02] According to Mr. Groia, the particulars of the alleged offences were insufficient. Mr. Groia made an application for particulars for the eight counts. The defence team received particulars for counts 1-4 on the day before the application was to be heard. The application was adjourned, and the defence team received an amended version of the particulars for counts 1-4 on the day before the new date for the application.
Disclosure of Documentary Evidence

[103] On December 22, 1999, Mr. Groia brought a disclosure motion, alleging that the OSC had reneged on its promise to disclose materials in hard copy. The application was granted. Justice Hryn made an order that the OSC produce 235 boxes of documents and produce the contents of 15 CD-ROMs in hard copy. 35 [1 04] Mr. Naster, counsel for the OSC, had offered to disclose either 24 CD-ROMs or hard copies of the materials contained in them, printed at the OSC's expense. The OSC insisted that the defence team indicate its preference by November 5, 1999. Mr. Groia replied three days after this deadline, requesting both CD-ROMs and hard copies. On November 15, 1999, the OSC delivered the CD-ROMs, but refused to provide hard copies. Instead, the OSC offered a "reasonable supply of blank paper," to reduce Mr. Felderhofs printing costs. This last exchange led to Mr. Felderhofs allegations that the OSC had reneged on its promise. The defence team was forced to deal with documentation unearthed by the OSC investigation (which was stored electronically on 39 CD-ROMs, but had no confidence that the documents stored on the remaining 24 CDin the past, or contained only the "chaff," ROMs were relevant, as the OSC had as Mr. Naster stated during the hearing. 3 [105] In correspondence with the OSC's lawyers, dated October 15, 1999, Mr. Groia alleged that the OSC had abused the process by shifting the responsibility of "separat[ing] the wheat from the chaff' from the OSC to Mr. Felderhof. 37 Eventually, numerous relevant documents were identified among these materials. [106] Mr. Groia's reference to "separate[ing] the wheat from the chaff' was not an isolated event. He repeated this line in his attacks on the conduct of the prosecutors with respect to the disclosure of the documents. For example, in his submissions to Justice Hryn on December 22, 1999 that the prosecutor's conduct was unfair, unethical, and lacked due diligence, Groia stated: The Crown has all this paper available for it to use. It also has these computer disks for whatever use they may be put to, and yet it's saying to the defence, we want to have an unfair advantage. We want to have availability of both kinds of material. You can't have the same level playing field. You can't have access to
that materiaL

25

Crown says, I'm sending you, Mr. Groia, a sight unseen. We don't know what's on them. We haven't looked, but I'm giving them to you anyway. You look at them. You figure it out. We may get around to looking at it some point before this case goes to trial, but in satisfaction of our obligation to provide you with disclosure here they are, good luck and happy viewing. In my submission, Your Honour, how could they possibly even pretend they have made any attempt to have separated the wheat from the chaff when they haven't looked at documents on discs that they have.

What Mr. Richter is trying to do is he struggled valiantly to try and make the computer system work, but at the end of the day, it doesn't and so the Crown's offer to provide us with hardcopy material, which they unilaterally reneged on, in my submission, has to leave open to question what is the motivation of the Securities Commission at this point?38 [107] On January 28, 2000, the OSC sought and was granted a trial adjournment, from March 20, 2000 to October 16, 2000, partly due to the lack of agreement on the admissibility and management of documentary evidence. 39 Late disclosure of certain documents from PricewaterhouseCoopers, due to its late notice that some original documents may not have been copied, led to a ruling by Justice Hryn that the OSC had not been sufficiently diligent. [1 08] On September 18, 2000, the parties appeared before the trial judge in order to deal with various trial-related issues. With respect to the handling of documents, Justice Hryn decided that documents would be admitted on the basis of strict proof, and that a separate exhibit brief should be created, which would include the documents admitted into evidence; Justice Hryn rejected the OSC's proposal that the document binders be marked as exhibits and that all of the documents remain in the marked binders, even those not ultimately proven and admitted into evidence. 40 Nevertheless, many documents were eventually admitted on consent. [109] Finally, a second disclosure application was heard, and granted in part, in October 2000. This was preceded by new letter exchanges between the parties, in early October, in which Mr. Groia accused the prosecution of trying to "win at any costs." 41 [110] The panel finds that Mr. Groia's comments constituted a pattern of improper attacks on the integrity of the prosecution. Our finding is confirmed by Justice Campbell, who described the trial as "fiercely contested by both sides," and requiring "infinite patience" from Justice Hryn to avoid the impending deadlock: [36] Mr. Groia's umestrained attacks on Mr. Naster's integrity have provoked from Mr. Naster a sometimes excessive negative response. An atmosphere of mutual distrust between counsel pervades the trial. No opportunity is lost to bicker and squabble. No opportunity is lost to repeat, at great length, arguments

26

and positions cherished stubbornly by each side. The heated disagreements go well beyond disputed issues of fact and law. Counsel cannot even agree on the preliminary order in which evidence should be led in order to provide a proper foundation for the reception of later evidence. [111] The panel's finding is also confirmed by the Court of Appeal in R. v. Felderhofwhere Justice Rosenberg noted: [11] In addition to the documents problems, counsel's conduct has been a problem at this trial. The application judge found that Mr. Groia made uncivil attacks on the prosecutors, especially Mr. Naster. He set out many of the comments in his reasons for judgment and I need not repeat them at length in these reasons. In summary, the comments fall within a number of categories. Mr. Groia frequently resorted to sarcasm. He belittled the efforts of the prosecutors to prepare their case and accused them of laziness. He suggested that the prosecutors had breached their promises and misled the judge. The trial judge rarely intervened to restrain counsel. On the other hand, counsel for the prosecution accused the defence of filing a misleading affidavit and wasting the court's time with its abuse of process motion.

[13] Mr. Groia was prone to rhetorical excess and sarcasm. That manner of making his submissions was unseemly and unhelpful.

The Charter Application


[112] The trial began on October 16, 2000. [113] On the same day, Mr. Switzer, the OSC's Director of Communications, stood on the courthouse steps and declared to the media that the OSC's "goal is simply to seek a conviction on the charges that we have laid." This statement was never retracted or revised, and led to new and repeated allegations of prosecutorial misconduct by Mr. Groia. [114] On the first two days of trial, Justice Hryn heard a Charter application by Mr. Felderhof. Justice Hryn deferred his ruling on the motion and, at the end of the trial, rejected the application. 42 The Stinchcombe Application [115] On Days 3-15, the Court heard Mr. Felderhofs Stinchcombe application, seeking an order to stay the proceedings or, in the alternative, to have full and proper disclosure by the OSC or, in the fu1iher alternative, to prohibit the OSC from calling any witness until full and proper disclosure related to that witness had been completed. In support of this application, the defence filed the affidavit of Mr. Park, a junior lawyer who had worked on the X file since October 1999. Mr. Park was aggressively by the prosecution for one and a half days. This testimony was followed by that of Mr. Hubley, 27

the OSC's lead investigator, who acknowledged that some ofthe materials described by the prosecution as "chaff'' in the December 1999 Disclosure Application had proven to be "wheat". He also acknowledged other important shortcomings of the disclosure by the OSC. Mr. Hubley conceded that budgetary considerations had contributed to the faulty disclosure. 43 [116] During the hearing, Mr. Groia made various comments: Essentially the Securities Commission has been unable or unwilling throughout the 16 months since the laying of these charges, to recognize their responsibilities as prosecutors. Even as we stand here today, they have the temerity to suggest to this court there's nothing wrong with Mr. Switzer saying on national television, "Our goal is to secure a conviction."

Their conduct from the beginning of this case to the end of this case, in my submission, has been intended to ensure that they make Mr. Felderhofs life and his ability to defend himself as difficult as possible, and as miserable as possible. And their conduct in December . . . is indicative of the lengths that the Commission is prepared to go to avoid having to do any work in this case. "Let's put the burden on Mr. Felderhof's defence team. Let's make them go through 145 boxes of documents. Let's make them search through all the chaff."

So all of those pieces of evidence individual may have answers. Individually there may be explanations. Mistakes were made, we've been told. We accept that, but when you put them all together, it's my submission to this court that that shows a pattern of conduct. It shows an animus towards the defence and Mr. Felderhof. And it shows that the Commission is prepared to do just about anything it possibly can, unless the law absolutely insists that they do something different, to avoid being fair to Mr. Felderhof. 44 [117] On Day 16, the court ruled on the Stinchcombe application and ordered full and proper disclosure. In his decision, Justice Hryn commented on Mr. Switzer's statement that the OSC's goal was simply to seek a conviction, and found that the statement "offends what the Courts have repeatedly said is the role of the prosecution. " 45 [ 118] Upon the OSC seeking clarification of the ruling, Mr. Groia made a statement which, illustrates his failure to act in good faith toward to the Comi and the prosecution: Somebody needs to tell us we got everything and it's just not right, m my submission, for the Securities Com_mission to say we're too lazy, we're too busy, we've got better things to do than go through the material to try and fix the mess

28

we have created. [ ... ] The Security Commission is too busy to comply with Stinchcombe and they are saying, let's interpret the order in a way that means we don't have to do this job. [ ... ]The fundamental question is why did the Securities Commission lead you to believe and me to believe back in December that they have done their job. It's very clear from Mr. Naster's submissions they haven't done their job. They haven't taken the time in the largest securities prosecution that they have ever brought, they never took the time to determine whether the document base they were relying on was an accurate one [ ... ] They turned a blind eye. They stuck their head in the sand and said, oh we'll just use the discs. This is a complicated case. Mr. Groia probably won't figure it out. The discs will be good enough. Who is actually going to be stupid enough to go through all this paper. Well the problem is that that's exactly what we did. Now for them to say well the only way we can be certain that you have got everything is to send it to you all over again so we are going to send you 197 more boxes, basically if you are going to make that order, Your Honour, you might as well have us go and look at them there because as a practical matter we are going to be looking for a needle in a haystack. 46 [119] The opening statements followed, between Days 16-25. The OSC opened its case for eight days, during which it referred to 516 documents that it attempted - and failed - to have marked as exhibits. The defence opened its case for two days, and referred to about 40 documents. 47
Cross-Examination of Mr. Francisco

[120] Day 26 saw the commencement of the examination-in-chief of Rolando Francisco, the Chief Financial Officer of Bre-X, which was to last 20 days. The cross-examination lasted for about 10 days, at which point Mr. Francisco had to interrupt his evidence due to illness. His testimony was marked by numerous objections regarding the admissibility of documents, which was a highly contentious issue. [121] The first dispute occurred on Day 26, when the OSC attempted to introduce the "MacDonald memorandum," addressed to Mr. Francisco. There were three versions of the MacDonald memorandum. Mr. Francisco was unsure which version he had read. The defence was concerned about the authenticity of this and other Jakarta documents, and objected to having the document admitted for the truth of its contents. 48 [122] When the trial resumed after the Christmas break, on Day 39, the parties attempted to agree on the exhibits entered during the examination-in-chief of Mr. Francisco. The prosecutor proposed to bring two applications, one on "documents in possession" and the other on "business records." Justice Hryn rejected this proposal as too time-consuming, given the volume of materials. [123] In his submissions, Mr. Groia started using the words "Crown" and "Government" interchangeably and continued his accusations of improper prosecutorial conduct. In our view, Mr. Groia's repeated use ofthe term "Government" to describe the OSC's lawyers, coupled with the obvious sarcasm with which he delivered his submissions, fell below the

29

standard of professional conduct required of a lawyer before the Court and was inconsistent with the proper tone of professional communication from a lawyer. The following example is illustrative of this tone of communication: We have made the admissions you have asked us for to the extent we can. We have told you what we can't stipulate to. It's now up to you, Mr. Naster, to prove your case and that's all I am asking him to do. So he is not happy with the fact that I don't like the way the documents were gathered and that he is now basically trying to build a case on what I would describe as a rotten core, then that's unfortunately the Government's problem. [ ... ] for some reason it seems like the Crown is essentially saying to Mr. Felderhof, you should be prosecuting yourself and unless the rules have changed over the Christmas season, in my submission that's simply not a fair request by the Commission. 49 [124] Mr. Groia indicated that the defence would not consent to admission of any documents beyond those that had already been admitted. Even the defence binders were not admitted to be authentic or admissible, as the documents included in them had been disclosed by the OSC. [125] No ruling was made with respect to the OSC's omnibus document motion. The witness was recalled to the stand on Day 43. 50 [126] The cross-examination of Mr. Francisco continued on Day 52. The sarcastic tone of Mr. Groia's communication with the prosecution also During the crossexamination, the admissibility of documents was brought back into question. The prosecutor objected to the admissibility of a Placer Dome document - a letter to Mr. Francisco that the witness could not identify and of which he was unaware. In response, Mr. Groia launched into a diatribe about the prosecutor questioning the relevance of documents disclosed by the prosecution itself: MR. GROIA: How is that different than all afternoon Mr. Naster puts to Mr. Francisco, "Do you agree with what MacDonald said? Do you agree with what Felderhof said?" MR. NASTER: No. MR. GROIA: "Do you agree with what Mickey Mouse said?" MR. NASTER: Your Honour will recall that those questions were put in the context of statements made by his client, John Felderhof, that's highly different. 51 [127] On the next trial day, Justice Hryn ruled that the disputed Placer Dome document be made an exhibit, but not for the tmth of its contents. 52 [128] Mr. Naster conunented on the ruling: But what we are doing now is essentially saying, "We're going to let the defence " I'm not saying that's what you are doing but the effect of the mling is we're

30

going to let the defence proceed on that basis, they can simply file this paper but the Crown - the Crown is going to have to go through every rule of law that is known to tender the documents and things don't work that way. I know of no law that says the defence don't have to abide by the Rules of Evidence, unless we're prepared to abandon them and we're prepared to say you don't have to and I'm not prepared to say that if what he gets to do is essentially exactly what we want to be able to do, to be able to place the fullest record before Your Honour. And I'm prepared to give my friend every right to do the same thing. That's how I have conducted these cases in the past. That's what fairness would, in my submission, dictate if we're going to proceed on this basis, with the greatest of respect, Your Honour. 53

[129] Mr. Groia replied, repeatedly referring to the OSC's lawyers as the "Government":
Only if this court is prepared to say that the word of the Government is meaningless, that the representations of the Government are meaningless, that the statements of the Government on the record are meaningless, that you can't rely on anything the Government says anymore, is there any basis for my friend to make the submissions that he's making.

So when I gave [the document] to Mr. Francisco, I was prepared to rely upon what Your Honour was told, what we were told, what the public has been told this is an authentic Placer Dome document that the document is tendering so Mr. Felderhof can defend himself. . . .The basis of that authenticity is the defence's willingness for this document to accept the Government's word for it and therefore, it's admissible, because you then determined, in accordance with the Rules of Evidence, in accordance with the rules of logic, in accordance with the rules that apply in cases like this, you then determined that the defence's willingness to accept all of those assurances for that document was a basis for its admissibility.

I just I don't believe that when those promises were made and those representations were made, we were haggling, Your Honour. I don't haggle about Mr. Felderhofs rights.

He's not happy about it, because it's hard work. Well, that's too bad, Your Honour. Prosecutions are supposed to be hard work and they are supposed to he done in a manner that accords with the rules of law, and I think that's what your

31

ruling does and I guess I close the way I began, I don't see anything illogical about it. You haven't created two different standards. You've just simply said, "they are the prosecutors. They have a different job than the defence." That's the way it's been for thousands of years. I didn't realize that somehow there was now a case out there that said that somehow the defence's job was to save money for the Securities Commission so things would go smoothly it wouldn't be so difficult and sacrifice Mr. Felderhofs rights along the way.

And if the Government now is suddenly saying, "You can't rely on our word anymore, that you can't rely on the fact that we've given you these documents as part of our Stinchcombe obligation and we only gave them to you because we got them from Placer Dome- so we're going to have to consider, now that Mr. Groia is being a bad boy, we're going to have to consider whether that's still going to be the basis of proceedings," then Your Honour, I've got to tell you, I don't know how I can proceed, because I thought I could count on what I was being told. 54 [130] Mr. Groia further asked Mr. Francisco about a J.P. Morgan memorandum that the witness had never seen. Mr. Groia wanted to have this document admitted "on exactly the same basis as I let hundreds of documents into evidence." His submissions included repeated criticisms ofMr. Naster's conduct: Well, Your Honour, it's clear that the Rules of Evidence that are being argued are very different when you are the prosecutor and when you are the defence. If it's a document that helps the Government's case, it should be admissible and it gets into evidence and the defence is supposed to just simply agree to mark them all. Well, we didn't do that. And then when the defence wants to put in a document, the Government stands up and says, "Ah, but that now allows us, even though this is a chaff document," and even though my document is a chaff document, never even finds its way into a Crown binder-

You can't do anything in this case as the defence, Your Honour, without the Government wanting to take some other advantage or get some other document in.ss [131] On Day 54, Mr. Groia commented sarcastically on the time management in the case: I would suggest something in the neighbourhood of a half an hour to 45 minutes. That probably means tomonow morning about 7:30, Mr. Francisco. 56 [132] The discussion on the admissibility of evidence continued, with the comi trying to identify an threshold for marking the exhibits and to reconcile the diIering perspectives of Mr. Groia and Mr. f',Jaster:

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MR. NASTER: Exactly. But what I'm saying is if those are the parameters of admissibility, if those are the- if that's the basis under which documents will be filed, then I just want to make sure that we are permitted to do precisely the same thing. So that Mr. Groia can't say we get a sliceTHE COURT: But Mr. Groia is not admitting that they are all authentic. He is not admitting they are all relevant. Your position is that they are. You are the prosecution, you have to prove the case. Mr. Groia can make the concessions that he wants to make. 57 [133] Mr. Groia stated that the prosecutors unfairly allowed tendering through the witness only the documents that passed a "conviction filter." This phrase had been coined by Nicholas Richter, one of the lawyers on the Felderhof defence team, who himself recognized that the phrase was "a little sharp" and "pointed". 58 The panel notes that while the use of pointed terms is not improper per se, when considered in the context of other inflammatory words and phrases employed by Mr. Groia in his courtroom rhetoric, this was yet another example of Groia's pattern of repeatedly attacking the conduct of the prosecution. [134] At this point of the trial, Mr. Groia refrained from asking for a ruling on the prosecutorial misconduct, but began repeated accusations that the goal of the prosecution was to secure a conviction: And it's my submission to you, Your Honour, that the argument that we had yesterday about this Morgan document, this J.P. Morgan document, is further evidence and a further basis upon which the defence is concerned, and we would submit this court should be concerned, that this prosecution is being conducted in a manner which offends the principle that the duty of the Crown is not to seek a conviction.

Well, in my submission, Your Honour, the reason is simple. That doesn't help the Government secure a conviction. And in my submission, the reason the defence is in this difficult position is that the prosecution's goal, the goal that you said was improper, is to secure a conviction.

MR. GROIA: So it's a pretty unfair fight if the defence is left trying to put in J.P. Morgan evidence, given the circumstances that the Government has all the ability to do what it wants with the power to do that, and I'm left in the difficult position of trying to put before you a document which I say cannot possibly have been overlooked if the Securities Commission had been mindful of your admonishment that their goal is not to seek to secure a conviction. 59

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[135] In response, Mr. Naster asked the Court to stay the proceedings if there were substance to these allegations. Significantly, Mr. Groia confirmed that he did not have sufficient evidence to seek a stay. In other words, in his own mind, Mr. Groia was convinced at this point in the trial that he could not succeed on a motion based on a ground of prosecutorial misconduct. Yet, knowing the inflammatory and serious nature of the allegations of prosecutorial misconduct, Mr. Groia persisted in repeating them ad nauseam. 60 The hearing panel is drawn to the conclusion that Mr. Groia's motivation could only have been to disrupt the orderly proceeding of the trial by provoking the prosecution and creating the conditions for the trial to collapse under its own weight. [136] This kind of strategy, whether deliberate or not, is hugely expensive for the parties and for the administration of justice, not only in financial, resource and emotional terms, but also because it undermines the public's confidence in the ability of the justice system to deal with matters in a fair, but efficient manner. One has to wonder whether Phase One of the Felderhof trial would have been nearly so long or as acrimonious if the trial had not been so well-publicized and Mr. Felderhof had been a defendant of modest means. Objectively viewed, and despite Mr. Groia's claims to the contrary, it cannot be said that this strategy and this pattern of conduct in the courtroom was in Mr. Felderhofs best interests, particularly when one considers that "prosecutorial misconduct" was not argued in the end and was not a ground on which Mr. Felderhofwas acquitted. [137] Furthermore, in a trial of this nature, involving thousands of documents and complicated issues of proof, the concept of a "fair trial," demanded by the rule of law, obligates counsel for both sides to co-operate in ways that may not be necessary in other cases, which are not as complex or of such long duration. In cases of the nature of R. v. Felderhof, it is not enough for defence counsel to exercise his version of "zealous advocacy," without limitations, to ensure that the defendant is fairly defended. As an officer of the court, the lawyers, including Mr. Groia, had an overriding duty to ensure that the trial was conducted fairly and efficiently, and in an atmosphere of calm. "Zealous advocacy" is not a licence to use deliberately provocative language or to cast unsupported aspersions on opposing counsel. That Mr. Groia owed an overriding duty to the court and to the administration of justice has been made clear in the Supreme Court of Canada decision in R. v. Lyttle: But, as an officer of the court concerned in the administration of justice, he has an overriding duty to the comi, to the standards of his profession, and to the public, which may and often does lead to a conflict with his client's wishes or with what the client thinks are his personal interests. Counsel must not mislead the court, he must not lend himself to casting aspersions on the other party or witnesses for which there is no stifficient basis in the information in his possession, he must not withhold authorities or documents which may tell against his clients but which the law or the standards of his profession require him to produce.... [Emphasis added] 61 [138] On Day Mr. Groia attempted to tender a resolution of the Bre-X Board of Directors. The prosecutor consented to the tendering of the document, considering that the document was a business record. As Mr. Groia was not prepared to have the document

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admitted as a business record, a new discussion ensued and the document was, eventually, withdrawn. Later on, Mr. Groia tendered a note that was unknown to the witness, but which came from the C Binder of documents disclosed by the prosecution. In Mr. Groia' s submission, since the OSC had conceded that the documents were both relevant and authentic, the consent of the defence was sufficient to have them admitted. In contrast, the prosecutor emphasized the need for consistency: both the defence and the prosecution could tender "C Brief' documents or some basis for admissibility needed to be identified. The fact that the document was part of the disclosure was an insufficient basis for admissibility. [139] Mr. Naster expressed himself as follows: I simply won't allow the Crown to be treated in that way, in the sense that he is going to be able to plop whatever he wants before the Court because we have sought to proceed on a reasonable basis, yet he is going to be permitted to object to documents that fit on all fours within the same context category as the documents that he seeks to tender when we seek to tender such documents. That's essentially what happened throughout the examination-in-chief. So that's our position in a nutshell. We want to deal with this paper in a responsible way. And the C business, the D business, the Crown documents, the defence, they all come from us. They all made disclosure. My friend was told a long time ago that we intended to put numerous documents, including those that we talked about way back in December of '99 and additional ones and we have indicated we would be quite prepared to file this paper and allow this trial to proceed on that basis. But I am not going to sit here and watch him tender whatever he wants based upon our position and then object whenever we seek to tender a document based on the identical position. Where is the consistency? Where is the faimess? 62 [140] Mr. Groia responded: Well the position is actually quite simple, Your Honour. Where is the consistency? Where is the fairness? Where is the rule of law which says the Government who wants to bring a prosecution must prove its case beyond a reasonable doubt gone to? The Government's case has more holes in it than a lobster trap in Nova Scotia, Your Honour. And what the Government tries to do over and over and over again is to frustrate the defence's attempt to represent Mr. Felderhof.

Just throw them all in there. They look, they are all nice pretty binders. They all have nice white labels on them and, therefore, you can use them as a basis of prosecuting Mr. Felderhof. What I am saying, Your Honour, today is here is one I will consent to. But obviously, if the Government doesn't get its way then they take back their statements. You can't rely on their having told you these were

35

relevant and authentic any more. I don't know what they are. They are just pieces of paper in binders. So you are now hearing the Government say we have changed our mind. Mr. Groia doesn't want to play by our rules, so we're going to take our ball and go home ... 63 [141] In discussing the admissibility of the C Binder, Mr. Naster said: And if my friend thinks he is going to stand up here and cutely say, well we are going to rely on this for what we want but we are not going to make any admissions with respect to any of the other paper that the Crown would seek to tender that would really fall within the same parameters, I cannot allow us to proceed. As an advocate, as a litigant, as a representative of the public, I am not prepared to essentially see, to see what should have been a very amicable process worked out turned into a ruse essentially. I mean, the defence are essentially going to say, okay- as they have tried to do already in the short time that Mr. Francisco has been on the stand - plopping down any document they want saying, well the Crown says they are relevant and authentic, therefore, they are admissible. That's simply not the basis under which the discussion, as I would have had it and it could have been conducted in a proper manner, would have proceeded. And I can't for the life of me think that Mr. Groia, given his wealth of experience, would have honestly believed and would have had any reasonable expectation that the Crown would have agreed to proceedings in that manner.

All I am saying to Your Honour is that we did not agree and will not agree to a process where my friend says that I can tender whatever I want and the Crown can't. And that the Crown, even though they want to tender a document that fits within the same parameters, within the same context, is going to be required to go through every hoop in the book. And when I talk about making reasonable admissions, I don't talk about this Crown essentially getting shafted big time, because I have a client, I have a public that I represent.

THE COURT: So you are saying this document is not authentic unless Mr. Groia proves it's authentic. MR. NASTER: Unless he goes ahead and proves it. What I am not prepared to see us do here is to sit in a situation where Mr. Groia can tender whatever he wants, relying on what was said by the Crown in an effort to work out a reasonable accommodation with respect to the paper, yet the same reason doesn't apply when the Crown seeks to do the same thing. Do you think you have heard Justice Binnie speak about trial tactics. You have heard Justice Binnie speak about the fact that there is an interest to be represented by the Crown and that interest can be represented vigorously. Do you thin_k I would sit here and agree to a process which lets him file whatever he wants and yet I am going to be held to

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the strictest of proof? Why on earth would I agree to that? why on earth would I agree to that, Your Honour? Why would I agree to essentially allowing a skewed record to be put before Your Honour that allows him to tender --THE COURT: I thought you had agreed. I thought you agreed they were authentic and relevant. 64
[142] In response, Mr. Groia renewed the accusations that the prosecution was reneging on its word, and made new references to the "conviction filter." Mr. Groia also responded to the perceived mockery by Mr. Naster:

And, Your Honour, I have heard Mr. Naster mock the defence in his submissions. I have heard him use language that I don't often hear in court rooms in his submissions. And now I have heard him resile from submissions made in open court. That's more than enough, Your Honour, for the defence to know where we have to go with the document. So on the basis that you can't trust the government to live up to its word ... Well, the Government's promises aren't worth the transcripts that they appear to be written on. I don't have what I need to get, which is the Government living by its word. So now that the Government says no longer is anything in those binders to be considered authentic and relevant such that the defence can accept them, I would simply ask we have the lunch. Let's call Mr. Francisco back. I will not ask you to mark that document as an exhibit because they have resiled .... Since they don't live up to their promises, then I don't think I have a basis to tender the document. 65
[143] When Mr. Naster proposed to summarize the position of the prosecution, Mr. Groia replied:

I am not asking for anything to be marked as an exhibit. [ ... ] this is about the fourth day of trying to get started with Mr. Francisco's cross-examination. I would like to be given some latitude to proceed in my own bumbling way as best I can. If I am going to have to fight with the Government about every single document, we were 22 days in-chief, we're going to be 22 weeks in crossexamination. But I'm in Your Honour's hands. If you want to hear from the Government, by all means. 66
[144] Later in the day, Mr. Groia sought to tender a handwritten note by Mr. Felderhof, to which the prosecutor had no objection, as he considered the document a statement of the defendant and, therefore, admissible. This led to new remarks by Mr. Groia that, for opposing counsel, the relevancy or authenticity of documents is determined by their passing through the "conviction filter" and that the "offer by the Government" regarding the admissibility of the handwritten note was unacceptable. 67

[ 145] As the cross-examination of Mr. Francisco continued, Mr. Groia stated: ... now that the Govemment has abandoned its contention that those documents are relevant, it's my submission that those documents cannot be tendered as an exhibit because there is no basis yet to dete1mine the relevancy of the document. 68
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[146] This statement led to a discussion on whether documents already marked as exhibits may no longer be exhibits. When Mr. Naster asked if the admission of the handwritten note was still valid, Mr. Groia refused to "respond to the Government's Mr. Groia 7 claimed that all the exhibits should be examined "one by one," given the perceived change in the prosecutor's position. After Mr. Naster expressed his position, Mr. Groia declined to "accept a representation by the Government that those documents are relevant any longer because the last time I did that, look where I have ended up." 71 [147] The matter was again raised on Day 56, when Mr. Groia reviewed the consequences of the prosecution having "resiled from its position" and claimed that Exhibit 90 was no longer properly an exhibit, although he did not demand that it be struck from the list of exhibits. Mr. Groia resisted Mr. Naster's request to make submissions on account that these submissions would inconvenience the witness, whose cross-examination was "continually being intenupted by the Crown." As Mr. Naster's submissions were met by Mr. Groia's allegations that the prosecution had resiled from its "assurances" and "promise," Mr. Naster again requested that the court rule on the issue of prosecutorial misconduct. 72 [148] Later on, the discussion returned to the issue of the documentary record: THE COURT: Well I think the question is, if all these documents are authentic and relevant, if that's the Crown's position they are all authentic and relevant and Mr. Groia wants to put it in, then what else does he have to prove before he can put it in? MR. NASTER: And if I can do it on precisely the same basis. What else do I have to prove? MR. GROIA: When is the Crown going to accept the fact that they are prosecuting a case? Why do they stand before this Court and continually whine about how unfair it is that the law in this country says if you want to prosecute Mr. Felderhof you must do so in accordance with certain fundamental rules .

. . . They don't care about the fact that when they stand up and say let's file it all, what they are trying to do is to back fill their case. They know they can't prove those documents and they hope that by wearing down the defence and making it impossible for the defence to represent Mr. Felderhof, they are going to get some concession from us that lets them dig themselves out of this huge hole they are in.

In my submission, Your Honour, what the defence wants to do in this case is what defence counsel do in every case. You make some admissions and not others. What's unprecedented is a Crown prosecutor standing up and complaining about the fact that he can't do it hls way. He can't put them all in. he can't get the defence to help him out of the mess he is in because he knows he can't prove his 38

case. And he complains and he whines and he puts the defence in a position where I can't even conduct a cross-examination of Mr. Francisco without getting interminable objections when I try to use his very own documents. Did you ever think in December, Your Honour, when he said this was the core of his case and the defence wanted to put one .of his core documents to a witness he would object. 73 [149] As the discussion progressed, Mr. Naster made two more requests that Mr. Groia cease "malign[ing]" the prosecution. 74 [150] On Day 57, the prosecutor pointed out that a document that had been referenced during the cross-examination should be marked as an exhibit. Mr. Groia turned this into an issue of consent and resisted having the document marked as an exhibit for fear that he may "get locked into some position just because the Government seeks another advantage." 75 [151] Later that day, in the course of cross-examination, Mr. Groia used a meeting agenda, a list of attendees, and the handwritten notes of a person unknown, and asked that these documents be made an exhibit. When Mr. Naster pointed out that Mr. Francisco could not identify the author of the handwritten notes; Mr. Groia explained that the prosecutor had not tendered the document during the examination-in-chief because he intended to just "gloss over" this "critical meeting." 76 [152] For Mr. Groia, this instance was a "very powerful example of what we are now seeing as a problem that the defence is struggling to overcome." Because of the misconduct, he claimed, relevant and authentic documents that the prosecution should have led would become admissible at the behest of the defence. As Mr. Naster again invited the Court to either rule on the issue of prosecutorial misconduct or put an end to the allegations, Mr. Groia acknowledged that there still was no basis for such finding: the ruling would depend on whether there were only few or numerous oversights by the prosecutor. 77 [153] Justice Hryn again declined to make a ruling on prosecutorial conduct on that day. The court proposed, however, to use a code word, the "same objection," so as to have the objection noted while avoiding repetitive arguments. The next day, Mr. Groia suggested that the issue of "Government misconduct" could be dealt in this manner, by using the "standard complaint" short form. Even though Justice Hryn refused to rule on the allegation of prosecutorial misconduct, his proposal that counsel refer to the "same objection", or the "usual" or "standard" objection is some indication that he too was becoming weary of Mr. Groia's rhetoric and constant repetition of his "prosecutorial misconduct" theme. 78 [154] On Day 58, as the cross-examination turned to a newspaper interview with the chairman of the OSC, Mr. Brown, the prosecution raised a hearsay objection. During the discussion, Mr. Francisco had to step outside; he asked how long the delay might be and whether he could go home. Mr. Groia answered that he should come back "next week I would suggest," because "we will be a while." Counsel for Mr. Francisco intervened and requested that his client be treated with comiesy. 79

39

[155] After the witness was excused, Mr. Groia suggested that Mr. Brown should be called on a voir dire "right now ... Let's get him over here." The prosecutor insisted that Mr. Groia make a submission of law, and engaged in an exchange with the court. This led Mr. Groia to state: I am heartened to see that Your Honour is no more able to get a straight answer out of the prosecutor than the defence has been. I don't think you got an answer to your question. I think you got a long-winded explanation. 80 [156] As Justice Campbell observed with respect to repeated calls by Mr. Groia to "get Mr. Brown over here," "Mr. Groia's conduct on this occasion more resembles guerilla theatre than advocacy in court" _81 [157] Mr. Naster took exception to Mr. Groia's comment, and again requested that the defence either make proper submissions regarding the alleged misconduct or drop the allegations. This request was repeated later in the day, after Mr. Francisco had returned to the witness box and Mr. Groia had renewed his allegations. Justice Hryn, again, declined to make a ruling on that basis. 82 [158] When counsel for the witness indicated that Mr. Francisco was not feeling well, and asked how long Mr. Groia would be with the witness, Mr. Groia replied: Well, if they were pure days I would say four or five. With days like today, obviously much longer. 83 [159] While agreeing that the issues between the prosecution and the defence should not be dealt with in a manner that affected Mr. Francisco's health, Mr. Groia further complained of the prosecutors' "failure to do the things they could do," which was "an example of prosecutorial misconduct. " 84 [160] With respect to Mr. Francisco's health, Mr. Naster stated: Well I understand and we are indeed very very concerned about that and very sympathetic to the fact that Mr. Francisco has given of his time as graciously and as willingly as he has to date and that clearly the last thing that anyone wants to do- and I accept even from my friend that he doesn't want to compromise his health, no one wants to do that. But the bottom line is is (sic) that we want to conduct this trial in accordance with law. 85 [161] Mr. Naster was rebuked by the court for these sarcastic remarks, and apologized. Mr. Groia commented again on the "extraordinarily difficult circumstances" of the case, and again confirmed that he did not yet have a sufficient basis to request a ruling on misconduct. 86 [162] On Day 61, Mr. Naster again renewed his request that the court rule on the allegations of prosecutorial misconduct or direct Mr. Groia to stop making them. While Justice IIryn agreed with Mr. Groia that a ruling could be made only when all the documents were tendered, he also expressed sympathy for Mr. Naster and noted, "I think most people 40

would find that having that repeated when you believe that there is no basis to the allegation is somewhat upsetting. " 87 [163] On Day 64, Mr. Francisco was unable to attend. [164] On Day 65, Mr. Francisco was again unable to attend, due to a family issue and to worsening health. His counsel, however, addressed the court and requested that Mr. Francisco's interests be protected, as the witness was "being used as a means of putting documents in by both counsel that normally would not happen." Counsel requested that both the prosecution and the defence budget the balance of the examination so that Mr. Francisco, who had been examined for one month and cross-examined for two weeks, finish giving his evidence in the coming week. 88 [165] Mr. Naster suggested that: ... one way of getting this thing on the tracks Your Honor, and that's to come up with a reasonable proposal with respect to the documents [ ... ] we have invited the defence to agree to put the entire documentary record before the Court [ ... ] But I can't --- you know, you can lead a horse to water, but you can't make him drink and that's definitely the case that we have got here. 89 [166] Mr. Groia suggested that counsel prepare a joint book of documents for the next witness, Dr. Kavanagh. Despite the court's encouragement to manage documents out of court, the prosecution found this proposal difficult, given the tension between the lawyers. Mr. Groia then commented that, despite the defence's best intentions, the prosecution showed disregard for Mr. Francisco's health: The difficulty, once again, is you can't make a deal with the Securities Commission because if we want to find a way of doing something because of Mr. Francisco's health, they won't agree.

So we don't care about Mr. Francisco's health, or expediting this process. We want to use Mr. Francisco's health as an opportunity, once again, of blaming the defence for the fact that we were prepared to agree to some documents ....

The Crown has only one view of these proceedings and if Mr. Francisco's health has to suffer, they say it's regrettable, but they are not prepared, in response to suggestions from the defence, to agree to a process to expedite matters.

But I am not prepared to let my concern about Mr. Francisco's health be used by the Crown as another way of complaining that we are the problem; as another way of trying to fill the holes in their case about the documents ... they don't

41

understand the meaning of the word "reasonable" and they certainly don't understand the word "accommodation" .... But my friend seems to think that Mr. Francisco's health suffers enough perhaps that will be a basis that the Court will make that ruling. 90 [167] One hundred and five documents were marked as exhibits that day. Mr. Groia, however, attempted to have marked as exhibits various documents that had no connection with Mr. Francisco. As Mr. Naster objected, Mr. Groia stated: Let me make it real easy for the Government. Let me just make it real easy for them. Any document they oppose, all they have to do is stand up and say no. They don't have to give a reason. Anything they are not going to consent to, just stand up and say I'm not consenting and we will move on. I don't - I want to get through a lot of documents today. I accept nothing of what you heard from the Government about their position. I have heard this tirade so many times before about how there may be other documents they want to put in. Well they are going to call Nesbitt witnesses. Let them put it in through a Nesbitt witness. 91 [168] On Day 66, again Mr. Francisco was unable to attend. Mr. Naster began by making submissions regarding both the "procedural nightmare" created by the allegations of prosecutorial misconduct and a proposal for the management of documents, which was described by Mr. Groia as "the most nonsensical proposal from a Government prosecutor that one could imagine." 92 [169] On Day 67, as Mr. Francisco was still unable to attend, Mr. Naster suggested that the documents authored by Mr. Felderhof be tendered and marked, while Mr. Groia suggested that the prosecution call Dr. Paul Kavanagh as the next witness. Mr. Naster, however, indicated that he was not in a position to exchange the documents respecting Dr. Kavanagh's examination. Again, Mr. Naster stressed the tension between counsel and the impossibility to co-operate, and requested rulings, while Mr. Groia pointed out that the defence had conceded the relevance of about 90% of the documents in Mr. Felderhofs handwriting. The defence needed additional explanations of the remaining documents' relevance, as envisioned by the prosecution. The prosecution, however, found it impossible to co-operate. Justice Hryn suggested that the issues may be presented before a case management judge. 93 [170] With respect to the omnibus document motion, the following exchange occurred: MR. NASTER: And then we would like to pursue the next argument, which is the document in possession argument and deal with the question of what documentation is admissible because John Felderhof possessed it. TI-IE COURT: And I think that my ruling- maybe I wasn't clear- but my ruling was that this is a process we stmied in January and at that point I detennined that we were not going to continue it and I don't see any difierence today than what occurred in January and we're not going to continue that We may clear up these Felderhof documents and I want to hear from some witnesses next.

42

MR. NASTER: Well, I'd like to consider my position because, as I have indicated to Your Honour, what the Crown wants to do is to argue the documents, that, with the greatest of respect, Your Honour, it is imperative that we know where we stand with respect to these documents before - before we go on for several months with respect to viva voce testimony that will not answer the question whether or not the documents are admissible - and therein lies the dilemma. I can't put it any other way, Your Honour.

THE COURT: I think I made my ruling clear, Mr. Naster, I'm not doing that now. So your position is that you want to consider your position overnight andMR. NASTER: I would like to consider my position. I'm not in a position at this time to exchange the documents respecting the Kavanagh examination, for example, and nor do I respectively [sic] consider that to be the way to go.

Your Honour has given your position and there is really not much point in my saying anything further, but if we are to proceed as directed by the court, then we're going to have to consider our position and consider the steps that need to be taken, if we agree to that; if we don't agree to that, it's a fundamental question. 94 [171] On Day 68, Mr. Naster requested an adjournment of the proceedings. When making his submissions, he also commented on the state of the trial, on Mr. Groia's conduct, and on the repeated requests by the prosecutor for rulings regarding the documentary record and the allegations of prosecutorial misconduct. Mr. Naster challenged several rulings of Justice Hryn. The request for an adjournment was "without prejudice to the Crown's right to consider any other remedies which may be available to it." 95 [172] Mr. Groia opposed the request for adjournment and brought a motion for contempt of court. He claimed that counsel for the OSC had advised counsel for Dr. Kavanagh that Dr. Kavanagh would not be required that week, despite the court's directions to the contrary. 96 [173] The court censured Mr. Naster for challenging the court's rulings "in a context strongly suggesting that they were presumptively wrong and unfair." Mr. Naster apologized, and the apology was accepted. The prosecution's omnibus documentary evidence application was dismissed, as was its request for an adjournment. 97
Examination of Dr. Kavanagh

[174] On Days 69 and 70, Dr. Kavanagh, the second witness of the OSC, was examined. The trial was then adjourned, following which the OSC made the application for judicial review seeking the recusal of Justice Hryn, which was ultimately determined by Justice
43

Campbell and confirmed by Justice Rosenberg for the Court of Appeal. 98


[175] In the panel's view, throughout the cross-examination of Mr. Francisco, Mr. Groia communicated with the prosecution in a manner that was intended to be provocative, was in effect offensive and inconsistent with the proper tone of professional communication. Mr. Groia repeatedly alleged abuse of process and prosecutorial misconduct on the part of the OSC prosecutors, while at the same time admitting that he could not request an express ruling from Justice Hryn to that effect because the evidence was insufficient to support the allegation. In the absence of any ruling anywhere in the Felderhof trial proceedings, in the judicial review proceeding and in the appeal to the Court of Appeal for Ontario that the OSC's counsel engaged in prosecutorial misconduct, it is difficult to understand how Mr. Groia has concluded that his unsubstantiated allegation of prosecutorial misconduct can be excused because he simply believed it to be so. [176] This is not to say that the conduct of the OSC's counsel was free from blame. There is no doubt that the OSC's counsel also used provocative language from time to time. Indeed, Mr. Naster was rebuked on more than one occasion for his choice of words. We note, however, that Mr. Naster was quick to recognize that he had crossed the line and withdrew his remarks with an apology. [177] Moreover, there was no evidence of prosecutorial misconduct on the part of the OSC. Felderhof was acquitted of all charges because the OSC had not proven the alleged particulars beyond reasonable doubt, rather than on the basis of prosecutorial misconduct. 99 Incidents such as the OSC's refusal to produce the relevant documents and the manner in which the prosecution tendered them did not amount to prosecutorial misconduct. Those issues could have been properly resolved through discussions and cooperation among counsel. The Law Society did not call Mr. Naster or any other representatives of the OSC as witnesses. The panel therefore did not have the benefit of the OSC's account of the relevant events. [178] Although Justice Campbell described the trial prior to the application for judicial review by the OSC as "fiercely contested by both sides," and requiring "infinite patience" 100 from Justice Hryn to avoid the impending deadlock, he also found that much of the prosecution's conduct was provoked by Groia:

[36] Mr. Groia's unrestrained attacks on Mr. Naster's integrity have provoked from Mr. Naster a sometimes excessive negative response. An atmosphere of mutual distrust between counsel pervades the trial. No opportunity is lost to bicker and squabble. No opportunity is lost to repeat, at great length, arguments and positions cherished stubbornly by each side. The heated disagreements go well beyond disputed issues of fact and law. Counsel cannot even agree on the preliminary order in which evidence should be led in order to provide a proper foundation for the reception of later evidence. [3 7] The prosecution says the documents have to go first as a foundation for the viva voce. The defence says the viva voce evidence has to go t1rst as a

44

foundation for the documents. This chicken and egg argument by the time of the impugned ruling threatened to paralyze the trial. [179] Noting the importance of the voluminous documentary record for the case, Justice Campbell found it "ironic" that one of the errors alleged by the prosecution - the postponed admissibility ruling - had been initially proposed by the prosecution itself (paras 48, 56). He also found that the evolution of the prosecution's position with respect to the handling of documents led to increased attacks by Mr. Groia and to his theory of a "conviction filter." As the "skirmishing" progressed, however, "[T]he tone of Mr. Groia's submissions . . . descended from legal argument to irony to sarcasm to petulant invective". 101 [180] On appeal, Justice Rosenberg agreed that the tone of the conversation had degenerated early on: Mr. Groia had accused the prosecution of displaying "a 'win at any costs' mentality" as early as October 2000 while, on the third day of the trial, the prosecution went on to cross-examine needlessly a junior lawyer for a day and a half. The conflict intensified, partly due to Mr. Groia's con:flation of documents that were to be part of the prosecution case and documents disclosed to the defence. Admissions by the defence and the prosecution's omnibus document motion further slowed down the trial. These issues were compounded by Mr. Groia's conduct, with respect to which Justice Rosenberg accepted the findings of Justice Campbell: [11] In addition to the documents problems, counsel's conduct has been a problem at this trial. The application judge found that Mr. Groia made uncivil attacks on the prosecutors, especially Mr. Naster. He set out many of the comments in his reasons for judgment and I need not repeat them at length in these reasons. In summary, the comments fall within a number of categories. [181] While the sarcasm of Mr. N aster made the conduct of the trial more difficult for the defence, as we have noted above, Mr. Naster's conduct does not justifY Mr. Groia's conduct. [182] The panel does not accept, however, Mr. Groia's assertion that the conduct of the OSC's counsel was as blameworthy as his or that it is unfair for the Law Society to have made this application against him and not against the OSC's counsel. It is not, in our view, a valid defence in an application such as this to raise the conduct of the opposing counsel as a justification for one's own misconduct. No authority was cited to us to suggest the contrary. [183] While it may be a valid concern that the Law Society has commenced this application only against Mr. Groia, that is not a question for this panel since it does not, in our view, raise a valid defence to justify Mr. Groia's conduct. [ 184] As is apparent from the reasons for decision of Justice Campbell and the Comi of Appeal in R. v. Felderhoj; Groia's repeated accusations of the prosecution were misguided as a matter of law. Indeed, Justice Campbell noted that Groia's misunderstanding of the disclosure obligations and the role of the prosecution was the source of "umestrained

45

attacks" on the prosecution (at least 12 times, as illustrated by Justice Campbell): [7] A singular problem with the documents is that defence counsel seemed to misunderstand the difference between documents that were to be part of the prosecution case and documents that the prosecutor was required to disclose to the defence. Some statements made by one of the prosecuting counsel prior to the trial, on December 22, 1999 in the course of an earlier disclosure motion, may have exacerbated this misunderstanding. At that time, prosecution counsel told the trial judge that part of his obligation as a prosecutor was "to ensure that all relevant materials are placed before you." The defence developed the theme from this comment that whenever the prosecution failed to introduce a document that the defence thought was relevant and helpful to the defence, the prosecution was in breach of its duty and that this breach of duty could potentially lead to a stay of the charges for abuse of process. The defence also seemed to think that any document in the disclosure briefs could be admitted into evidence as a kind of abuse of process exception to the hearsay rule. This led to the defence presenting a prosecution witness with many documents about which he had no knowledge and which were not admissible through his testimony. The proceedings were thereafter peppered with allegations of prosecutorial misconduct. [185] With respect to Groia's repeated attacks relating to the motives of the OSC prosecutors, Justice Campbell made the following comments: [20] Some of the trouble in this case flows from Mr. Groia' s failure to understand the proper role of a prosecutor. Mr. Groia, in his unrestrained attacks on Mr. Naster's professional integrity said over and over again that it is improper for the prosecutor to seek a conviction. That statement, standing alone, is inaccurate.

[22] It is improper for Crown counsel to seek a conviction in the sense of seeking a conviction at all costs, or breaching the quasi-judicial duty of fairness and evenhandedness. This principle is sometimes expressed by saying that it is not the function of the prosecutor "simply" to seek a conviction, because his or her quasijudicial duties involve much more than simply seeking a conviction.[20] In this expression of the principle everything turns on the qualification "simply", because it is appropriate for a Crown prosecutor to seek a conviction so long as he or she does not seek it unfairly or at all costs.

[25] For the above reasons it is inaccurate to say that a prosecutor should not seek a conviction and it is unfair to criticize a prosecutor for doing so. Yet Mr. Groia did so, repeatedly and vehemently. [26] It is in the sense that the duty of the prosecutor is more than "simply" to seek a conviction that the learned trial judge criticized the Securities Commission spokesman, Frank Switzer, who said in a press scmm on the first day of trial that
46

"our goal is simply to seek a conviction on the charges that we have laid." The offensive word in this passage, as noted below, is "simply." The judge noted that the quote "offends what the Courts have repeatedly said is the role of the prosecution." [27] Mr. Groia's failure to appreciate the vital distinction between not seeking a conviction, and not having a prime duty to seek a conviction at the cost of fairness, is illustrated by his cross examination of Mr. Hubley, a Commission investigator: ... [186] Dealing specifically with the allegations of incivility against Groia further in his reasons, Justice Campbell noted: [268] The evidentiary record demonstrates Mr. Groia's tendency to characterize as deliberate prosecutorial abuse any legal position taken by the prosecutor with which Mr. Groia disagrees. It may be that his difficulty flows from his mistaken understanding of the role of the prosecutor, discussed above. It may be that his difficulty flows from some of his novel ideas of the law of evidence such as the proposition that Mr. Naster is not only obliged to disclose evidence that might help the defence but that he is also obliged to prove in his case in chief every piece of potentially exculpatory evidence that Mr. Groia thinks might help his client.

[271] While Mr. Groia had every right to make submissions about alleged abuse of process and prosecutorial misconduct it was unnecessary for him to couch those submissions in a repetitive stream of invective against Mr. Naster's professional integrity.

[272] Mr. Groia's defence consists largely of attacks on the prosecution, including attacks on the prosecutor's integrity. It is one thing to suggest that the prosecutor has a wrong view of the scope of his disclosure obligation or that the prosecutor is obliged to prove the defence case. It is another thing to attack the prosecutor's integrity. Mr. Groia's basic stance is that any position argued by Mr. Naster, with which Mr. Groia disagrees, is not just wrong but also outrageously improper. It would be reasonably open to Mr. Naster to conclude that whenever he took a position with which Mr. Groia disagreed, Mr. Groia would characterize Mr. Naster's position as unethical. [187] On appeal, Justice Rosenberg confirmed Justice Campbell's finding that Mr. Groia's improper rhetoric was grounded in misapprehension regarding the role of the prosecutor and how the prosecutor should introduce documents. Justice Rosenberg agreed with Justice Campbell that the defence had a right to make these allegations, "but only where those allegations have some foundation in the record, only where there is some possibility that the allegations will lead to a remedy and only at the appropriate time in the

47

proceedings" (at para 88; see also para 93). Otherwise, baseless allegations would offend the opponent and disrupt the orderly running of the trial. Even when appropriate, such allegations should be made "without the rhetorical excess and invective that Mr. Groia sometimes employed" (at para 93). [188] One of Groia's witnesses, Nicholas Richter, acknowledged that allegations of prosecutorial misconduct should not be made in the in the absence of any foundation in the record. He also believed that oJSposing counsel should have some notice that such motion was envisaged by the team. 1 2 [189] The statements of Justices Campbell and Rosenberg about Mr. Groia's misapprehension of the role of a prosecutor and of the rules of evidence raise another question for the panel. Mr. Groia, according to the witnesses, is an experienced trial lawyer who has both prosecuted Securities Act offences and defended persons charged with such offences. Neither Justice Campbell nor Justice Rosenberg decided any new or novel points of law in their respective decisions. This leaves the panel to ask whether Mr. Groia simply did not understand the legal duties and obligations of the prosecutor and the rules of evidence or instead ignored them in pursuit of a trial strategy aimed at baiting the prosecution into making mistakes or aimed at convincing the trial judge through rhetoric rather than evidence that the prosecution was indeed engaged in prosecutorial misconduct. [190] Mr. Groia did not leave the panel with the impression that he was incompetent. On the contrary, his experience and competence were quite evident during his testimony. Although he is not a lawyer who believes in the old adage "be seen, be brief and be gone," we have concluded that he was more than competent to carry out Mr. Felderhofs defence as Mr. Felderhofs lead counsel. In other words, he either knew or ought to have known that his persistent allegations of prosecutorial misconduct were wrong in law and the positions he took on documents were not well-founded in the law of evidence or in accord with usual practices in large document cases. We are therefore drawn to the conclusion that during the examination and cross-examination of Mr. Francisco, Groia's attacks on the prosecution were unjustified and therefore constituted conduct that fell below the standards of principles of civility, courtesy and good faith required by the Rules of Professional Conduct. CONCLUSION [191] For the reasons given above, the hearing panel finds that the Law Society has proven each ofthe pmiiculars of professional misconduct set out in the Notice of Application. [ 192] The matter is referred to the Tribunals Office to set a date for hearing submissions with respect to penalty.

Thomas G. on behalf of the hearing

48

1
2 3

R. v. Felderho/(2007), 224 C. C. C. (3d) 97, 75 W.C.B. (2d) 46 [Reasons ofHryn J, dated July 31, 2007]. R. v. Felderhof, [2002] O.T.C. 829,55 W.C.B. (2d) 572 [Reasons of Campbell J, dated October 31, 2002].

R. v. Felderhof, OSCJ No. 0 1-CV-209193, February 13, 2003, 2,003 CarswellOnt 488 [Reasons of Campbell J, dated February 13, 2003].
4

R. v. Felderho/(2003), 180 C.C.C. (3d) 498,235 D.L.R. (4th) 131,68 O.R. (3d) 481 [Reasons ofthe Court of Law Society of Upper Canada v. Joseph Peter Paul Groia, 2010 ONLSHP 78.
Transcript of Evidence of Peter Roy, August 8, 2011, p. 55. Transcript of Evidence of Peter Roy, August 8, 2011, p. 72. Transcript ofEvidence ofNicholas Richter, August 10, 2011, pp. 2-3. Transcript of Evidence ofNicholas Richter, August 9, 2011, pp. 195-196. Transcript ofEvidence ofNicholas Richter, August 10, 2011, p. 103. Transcript ofEvidence ofNicholas Richter, August 10,2011, pp. 156-158. Transcript of Evidence of Kevin Richard, August 10, 2011, p. 252. Transcript of Evidence ofBrian Greenspan, August 18,2011, p. 71 Transcript of Evidence ofBrian Greenspan, August 18, 2011, p. 203. Transcript of Evidence of Stanley Fisher, August 19, 2011, pp. 67, 71 and 81. Transcript ofEvidence of Alice Woolley, August 12,2011, pp. 46-47 and 49. Paragraph 26, Law Society of Upper Canada v. Joseph Peter Paul Groia, 2010 ONLSHP 95. Transcript of Evidence ofJoseph Groia, February 6, 2012, p. 37. Transcript of Evidence of Joseph Groia, February 6, 2012, pp. 47-48. http://www. fisc. cal documents/Model Code-June2 0 12. pdf 2009 ONLSHP 51.

Appeal].
5 6
7

10 11

12

13

14

15
16 17 18

19 20 21

22

Ibid. at para. 279.


Closing Submissions of Joseph Groia at para. 521. Closing Submissions of Joseph Groia at paras. 558-559. Transcript of Evidence of Joseph Groia, February 6, 2012 at p. 23.

23

24

25

26

Law Society of Upper Canada v. Groia, supra (footnote 5) at para. 28.


Closing Submissions of the Law Society of Upper Canada at para. 466.

27

28

Ibid. at para. 491.


Closing Submissions of Joseph Groia at paras. 51-70.
!'v!a!)'

29

30

Martha Coady v. Law Society of Upper Canada, 2012 ONLSAP 12.

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31

R. v. Felderhof, Reasons of Campbell J, dated February 13, 2003, at para 18.

32

Transcript of Evidence ofNicholas Richter, August 10, 2011, p. 155; Transcript of Brian Greenspan, August 18, 2011, pp. 104-107. Transcript ofEvidence of Brian Greenspan, August 18, 2011, pp. 55-56; 78-83; 195-99.

33

34

Law Society of Upper Canada v. Joseph Peter Paul Groia, supra at para. 22. R. v. Felderhof, [1999] O.J. No. 5107, Exhibit 8, BriefofRulings of Justice Hryn, Tab B, p. 164.
Exhibit 7-1, Tab B, pp. 3 and 20. Exhibit 6-1, Tab 6A, Letter from Groia to Naster dated October 15, 1999. Exhibit 3, Tab B, Trial Transcripts, pp. 5, 7-8, 31-32 and 45. Exhibit 8, Brief of Rulings of Justice Hryn, Tab D, pp. 4-5. Exhibit 8, Tab E, pp. 29-30. Exhibit 6-2, Tab 9C-2, p. 300. Exhibit 8, Tab 16, pp. 6 and 7, R. v. Felderhof(Ont. C.J.). Transcript of Evidence ofNicholas Richter, August 9, 2011, pp. 151-53. Exhibit 7 -1, Transcript Brief, Tab 11, p. 65-67. Exhibit 8, Tab 16, p. 7. Exhibit 7-1, Transcript Brief, Tab 6, pp. 68 and 74-75. Reasons of Campbell J, dated October 31, 2002, at paras. 54, 57. Exhibit 8, Tab 26, pp. 114-115. Exhibit 7-1, Transcript Brief, Tab 39, pp. 11-12. Exhibit 8, Tab 41, p. 147. Exhibit 3, Tab 52, Trial Transcripts, p. 109. Exhibit 8, Tab 53, pp. 2-3. Exhibit 7-2, Transcript Brief, Tab 53, pp 36-37. Exhibit 7-2, Transcript Brief, Tab 53, pp. 39, 41, 45, 50 and 54. Exhibit 7-2, Transcript Brief, Tab 53, pp. 129-130. Exhibit 7-2, Transcript Brief, Tab 54, p. 2. Exhibit 7-2, Transcript Brief, Tab 54, p. 44. Transcript of Evidence of Nicholas Richter, August 10, 2011, p. 157. Exhibit 7-2, Transcript Brief, Tab 54, pp. 4, 8 and 21.

35
36

37 38

39
40

41

42

43

44

45

46

47

48

49

50

51

52 53

54

55
56

57

58
59

50

60 61 62
63

Exhibit 7-2, Transcript Brief, Tab 54, p. 55. 2004

sec 5 at para 66.

Exhibit 7-2, Transcript Brief, Tab 55, p. 31-32. Exhibit 7-2, Transcript Brief, Tab 55, pp. 32 and 36. Exhibit 7-2, Transcript Brief, Tab 55, p. 88-89; 94-95; 99-100. Exhibit 7-2, Transcript Brief, Tab 55, pp. 101-102. Exhibit 7-2, Transcript Brief, Tab 55, p. 120. Exhibit 7-2, Transcript Brief, Tab 55, p. 105; 109. Exhibit 7-2, Transcript Brief, Tab 55, p. 114. Exhibit 7-2, Transcript Brief, Tab 55, p. 115. Exhibit 7-2, Transcript Brief, Tab 55, p. 119. Exhibit 7-2, Transcript Brief, Tab 55, p. 125. Exhibit 7-2, Transcript Brief, Tab 56, p. 2-4, 7, 14-15. Exhibit 7-2, Transcript Brief, Tab 56, pp. 15-18. Exhibit 7-2, Transcript Brief, Tab 56, p. 57. Exhibit 7-2, Transcript Brief, Tab 57, p. 41. Exhibit 7-2, Transcript Brief, Tab 57, p. 102. Exhibit 7-2, Transcript Brief, Tab 57, p. 107, 113 and 124. Exhibit 8, Tab 7, p. 133 and Tab 8, p. 58 and 59. Exhibit 7-2, Transcript Brief, Tab 58, pp. 18-19. Exhibit 7-2, Transcript Brief, Tab 58, p. 37. Reasons of Justice Campbell, dated October 31, 2002 at para. 91. Exhibit 8, Tab 58, p. 52. Exhibit 7-2, Transcript Brief, Tab 58, p. 56. Exhibit 7-2, Transcript Brief, Tab 58, p. 79. Exhibit 7-2, Transcript Brief, Tab 58, p. 82. Exhibit 7-2, Transcript Brief, Tab 58, p. 84. Exhibit 8, Tab 61, p. 59. Exhibit 7-2, Transcript Briet: Tab 65, p. 3. Exhibit Transcript Brief, Tab 65, p. 17-18.

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79 80 81 82 83
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90

Exhibit 7-2, Transcript Brief, Tab 65, pp. 19-22. Exhibit 7-2, Transcript Brief, Tab 65, p. 42. Exhibit 7-2, Transcript Brief, Tab 66, p. 1 and16. Exhibit 7-2, Transcript Brief, Tab 67, pp. 2-11; 104-105. Exhibit 7-2, Transcript Brief, Tab 67, pp. 120-23. Exhibit 7-2, Transcript Brief, Tab 68, p. 9. Exhibit 7-2, Transcript Brief, Tab 68, pp. 12-13. Exhibit 8, Tab 68, pp. 18-23 (p. 19). Reasons of Campbell J, dated October 31, 2002; Reasons of the Court of Appeal. Reasons of Hryn J, dated July 31, 2007. Reasons of Campbell J, dated October 31, 2002 at paras 35; 38. Reasons of Campbell J, dated October 31, 2002 at para 64. Transcript of Evidence ofNicholas Richter, August 10, 2011, at pp. 99-127.

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