Trials are not tea parties, holds Supreme Court of Canada

In a decision that is bound to spur much debate, the Supreme Court of Canada dismissed a series of complaints against a Toronto securities litigator who was found to have breached the rules of civil courtroom behaviour during his aggressive but successful defence of a man charged in the billion-dollar Bre-X mining fiasco.

The 6-3 landmark ruling in Groia v. Law Society of Upper Canada, 2018 SCC 27 establishes an incivility test for when courtroom conduct crosses the line. It endorses a “flexible and precise” approach which employs a context-specific inquiry as opposed to a stand-alone test and rigid definition. When conduct compromises trial fairness and diminishes public confidence in the administration of justice then lawyers could be at risk for being sanctioned for incivility.

“Trials are not — nor are they meant to be — tea parties,” said SCC Justice Michael Moldaver, a former criminal defence barrister. “Care must be taken to ensure that free expression, resolute advocacy and the right of an accused to make full answer and defence are not sacrificed at the altar of civility.”

Reaction has been swift.

  • “The CBA is pleased with the SCC’s decision as it underlines the importance of both civility and resolute advocacy in the administration of justice,” Canadian Bar Association (CBA) President Kerry L. Simmons,  Q.C. said in a statement.
  • The SCC “gave a victory to fearless defence advocacy,” said Frank Addario, counsel for the intervener Criminal Lawyers’ Association of Ontario. “The court reinforced what we are taught in civics: a strong defence bar is indispensable to democracy. We have to be free to criticize the way state actors do their job.”
  • In a statement, the Canadian Civil Liberties Association said that “although the ultimate result in this case is encouraging, the CCLA remains concerned that the approach adopted by the court may not give sufficient guidance to lawyers about the boundaries of acceptable conduct and ultimately affect how clients are represented. It will be important to monitor how legal regulators interpret the decision and what effect it has on counsel, particularly those engaged in criminal defence work.”
  • According to Toronto securities litigator Joe Groia, the lawyer at the center of the decision, the SCC sends the clear message that lawyer civility “does have an important role to play in the legal system and in the judicial system, but where there is a conflict between civility and our duties to defend our clients’ interests, the Supreme Court has made it very clear that it’s going to require very serious misconduct before a defence lawyer can be criticized for doing his or her job. And when it’s necessary for them to challenge a prosecutor, when it’s necessary for them to defend their clients’ rights by alleging prosecutorial misconduct, they now have a very clear statement from our highest court that that is something they can do and, except in very rare cases, they should not be looking over their shoulders when they do it.”
  • The Law Society of Ontario said in a statement that it “welcomes the Supreme Court’s recognition of the importance of civility in the courts and its decision to endorse the Law Society Tribunal Appeal Panel’s test for incivility in court. This decision upholds the Law Society’s jurisdiction to regulate the legal professions’ conduct in court.”

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