Professional Misconduct in the Adversarial Process: LSUC v. Groia

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1 Volume 22, No. 2 October 2012 Criminal Justice Section Professional Misconduct in the Adversarial Process: LSUC v. Groia Grace Hession David 1 In a recent ruling by a disciplinary panel of the Law Society of Upper Canada the issues of civility and professional misconduct are addressed with respect to a matter that has already enjoyed a lengthy history in the courts. In Law Society of Upper Canada v. Groia 2, a Law Society of Upper Canada panel ruled that in spite of the fact that defence lawyer, Mr. Groia, repeatedly alleged during the course of a Ontario Securities Commission hearing that the prosecutor should be cited for prosecutorial misconduct, it was in fact, Mr. Groia who engaged in the misconduct. Mr. Groia has announced his decision to appeal this ruling 3 and without doubt, this matter will continue to be the focus of an important debate for some time to come. At the centre of the debate is the issue of what constitutes civility as required by the Law Society and when do we, as lawyers, cross the line. After reviewing all of the applicable rules and policies in Ontario with respect to professional civility 4, the Law Society panel summed up the issue of civility concisely in paragraph [58] of the judgment: [58] 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. A review of the Law Society decision and the rulings before it with respect to this case make one issue clear, before one can even begin to grasp the concept of the lawyer s duty of civility to the Court, it is imperative to first have a clear understanding of the nature of the roles of the various 1 Grace Hession David, Assistant Crown Attorney, Special Fraud Prosecutions, Toronto The views expressed herein are personal and are not meant to bind or represent those of the Ministry of the Attorney General of Ontario in any way. 2 Law Society of Upper Canada v. Groia, [2012] L.S.D.D. No. 92 (June 28, 2012) 3 Bre-X Lawyer Joe Groia Appeals Civility Ruling, Globe and Mail, July 23, 2012, Jeff Gray. 4 Law Society of Upper Canada, Rules of Professional Conduct, Rule 4: Lawyer as Advocate (Advocacy and Courtesy) and Rule 6: Relationship to Law Society and Other Lawyers (Courtesy and Good Faith). Council of Federation of Law Societies, Model Code of Professional Conduct, Rule 4.01 Advocacy and Courtesy Advocates Society, Principles of Civility for Advocates, General Guideline #1 and Comments Made About Opposing Counsel, #26- #29. Canadian Bar Association, Code of Professional Conduct, Chapter IX The Lawyer as Advocate.

2 2 players in the courtroom. Because only with a firm understanding of the nature and scope of those roles, can one even begin to be in a position to allege that misconduct has occurred. The purpose of this comment is to draw from the arguments of the brilliant minds that debated and, in turn, ruled on the issues in this case prior to it reaching the Law Society. Both the Ontario Superior Court and the Court of Appeal commented on the distinct roles of the judge, the prosecutor and the defence counsel, all of which are so important to understand so that we may all know the boundaries within which we must conduct our duties and so that we may do so with the civility and decorum that properly befits our presence in a court of law. 1. The Role of the Trial Judge The main legal dispute of this case arose over the admissibility of thousands of documents in a complex commercial dispute. From day one, the prosecutor and the defence were at odds as to the proper method with which to proceed with respect to the documentary evidence that formed the bulk of the case. The trial judge faced not only the shifting sands of the parties positions with respect to the admissibility of the documents but also the growing enmity of each party as various documents came up before the witnesses and objections were registered. In an effort to move the case along, the trial judge ruled that the prosecutor s application for an omnibus ruling on the admissibility of the documents should be postponed and instead, directed the prosecutor to call the next witness. The trial judge also ruled that in order to assist the Court and the next witness, the prosecutor and the defence should exchange a list of documents that would be relevant for that particular witness. Obviously the trial judge was hoping for concessions on each side with respect to admissibility of some of the documents that would be common. This ruling arose near the end of the 67 th day of the trial and resulted in the prosecutor s application to the Superior Court on a motion for prohibition with certiorari in aid that the trial judge be removed from his duties on the grounds that he had lost jurisdiction because of his interference with the prosecutor s right to call his case. The prosecutor also alleged that this, and other rulings (or lack thereof), had undermined the prosecutor s right to a fair trial and created a reasonable apprehension of bias. In the Court of Appeal, Justice Rosenberg 5 examined the nature and scope of the role of the trial judge. He noted that the intentional separation of the role of counsel and judge has mandated that there can be no judicial review of prosecutorial discretion save only in cases where there is an allegation of an abuse of process. Citing the case of R. v. Cook 6, Rosenberg, J.A. noted that absent an abuse of process, or perhaps even a violation of the Charter, there is no legal obligation upon the prosecutor to call any particular witness and so his or her decision in that regard cannot be reviewed by a Court. The prosecution may fail for want of evidence, yet there is, in law, no obligation on the prosecutor with respect to the calling of witnesses. Turning to the Felderhof facts, Rosenberg J.A. reviewed the record and concluded that the direction to the prosecutor to call the next witness was not a command from the trial judge to call a witness that was never intended to be called. It was a direction to call the next witness because the request for a ruling on the admissibility of the documentary evidence was being postponed until later in the trial. Rosenberg J.A. did not see this as a ruling that caused the trial judge to wade into the fray, instead it was seen as a ruling that was properly exercised out of the trial judge s inherent jurisdiction to control its own process. As Rosenberg J.A. noted at paragraph [45] of the Court of Appeal decision: 5 R. v. Felderhof, [2003] 180 O.A.C. 288 (Ont. C.A.) Carthy, Doherty and Rosenberg JJ.A. 6 R. v. Cook, [1997] 1 S.C.R (S.C.C.) 2

3 [45] A judge who proposes to interfere with a prosecutor s tactics or the order of calling evidence must move cautiously to avoid any appearance of partiality. In general, the trial judge will leave it to counsel to call the evidence in the order and manner that they propose. A decision of the type made by the trial judge in this case that dramatically interfered with the order in which the prosecutor intended to call his evidence will not be taken lightly. Fairness concerns aside, it should only be taken lightly because the trial judge is convinced that the prosecution s proposed way of proceeding will interfere with the orderly management of the trial. I cannot, however, accept the appellant s broad submission that the trial judge does not have this power as part of his or her power to manage the trial or that recognizing this power will undermine the adversary system. We have never had a purely adversary system. For example, the trial judge has the power, albeit a limited one, to call witnesses and to raise legal issues not advanced by the parties and to comment on evidence in a jury trial. Properly exercised, these powers do not interfere with the trial judge s established position of neutrality and impartiality. [Emphasis added] 3 In paragraph [57] of his reasons, Rosenberg J.A. continued to list the other options that a trial judge may utilize under the umbrella of the trial management power. He was careful to note that this is not an exhaustive list, because as he noted earlier in the decision, it is no longer possible to view the trial judge as little more than a referee who must sit passionately while counsel call the case in any fashion they please. A trial judge enjoys the following options if they will assist him or her in managing and controlling the scope of an unwieldy trial: The power to place reasonable limits on oral submissions. The power to direct that submissions be made in writing. The power to require an offer of proof before embarking on a lengthy voir dire. The power to defer rulings. The power to direct the manner in which a voir dire is conducted. The power to direct the order in which the evidence is called 7. The power to order counsel to exchange lists of documents they each intend to present to a witness. These days trials that can take months if not years. It is not surprising to find that the role of the trial judge has morphed from one of passive referee to watchful interventionist when it comes to court time and court resources. This is a reality that prosecutors and defence alike should fully grasp before hurling allegations of unwelcome interference by a meddling judicial authority, which results in excess of jurisdiction. Let us now turn to a consideration of the role of the prosecutor. 2. The Role of the Prosecutor 7 With respect to this power, Rosenberg J.A. cautioned that a judge would not commit jurisdictional error unless the effect of that ruling was to unfairly or irreparably damage the prosecution which would arguably, with modifications, be the test for all of these powers. 3

4 4 There were many reasons why things got so hot in the Felderhof case. Justice Campbell 8 was the first to review this matter at the Ontario Superior Court. He analysed most of the issues. One that crystallized early in his decision was what he termed the misapprehension of the role of the prosecutor on the part of defence counsel. Justice Campbell noted that one of the reasons Mr. Groia alleged prosecutorial misconduct on a repeated basis was because he believed that it was improper for the prosecutor to seek a conviction. Justice Campbell noted that the mischief is not if the prosecutor seeks a conviction but if he or she seeks to do so unfairly: [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. 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. 9 Justice Cambpell then quoted from appeal crown Ken Campbell s 10 manual on crossexamination to illustrate that even though the Crown is a Minister of Justice and must at all times be concerned with issues of fairness, it is still an adversarial process and the Crown must constantly seek to balance his or her duty as a Minister of Justice with that of advocate: counsel for the Crown are expected to be strong and persuasive public advocates who fully and effectively represent the interests of the Attorney General in an adversarial process Crown counsel must be skilled and diligent advocates, and must be permitted to vigorously pursue a legitimate result to the best of their abilities. 11 Justice Campbell also noted a further misconception on the part of the defence which was that not only was the Crown to disclose all evidence to the defence including exculpatory evidence, but the Crown must also lead this exculpatory evidence in its case in chief. As the trial continued, Justice Campbell noted that the defence began to develop a theory that the prosecutor engaged in misconduct because he would not file exculpatory documents in his case in chief 12. During the course of the trial, the prosecution repeatedly requested that the trial judge rule on the issue of whether or not he was guilty of prosecutorial misconduct but the judge indicated he could not do so until counsel had made a formal application. At which point counsel often re-iterated that he did not believe he had yet a sufficient evidentiary basis upon which to make such a motion. It was within this context that the trial came to the impasse on day 67 when the trial judge ruled that the prosecutor should call his next witness and the admissibility of the omnibus volume of documents would be postponed. It is also at this point in the superior court reviewing decision that we learn another important lesson in the nature of civility that is applicable to both Crown Attorneys and 8 R. v. Felderhof, [2002] O.J (October 31, 2002) Campbell J. 9 Justice Rosenberg agreed with these reasons at paragraph [79] of the appeal court decision, supra Footnote As he then was. 11 Kenneth L. Campbell, The Cross-Examination of the Accused: The Crown as Advocate July 2002: National Criminal Law Program, Federation of Law Societies of Canada, Supra, Footnote 8 at paragraphs [80] and [81]. 4

5 5 defence counsel alike. In paragraph [176] of his reasons, Justice Cambpell reminds us that when we receive rulings with which we are not enamoured, we are to move on with the trial. We are not to endlessly repeat the same old, unsuccessful arguments or quarrel with the trial judge: [176] Whatever he may have been considering, it was Mr. Naster s obligation to abide the rulings of the court whether he agreed with them or not. Nothing is gained when counsel simply repeats an argument that has been rejected by the judge. Mr. Justice Hryn demonstrated an admirable patience and willingness to reconsider rulings in the light of new developments. It was inappropriate for Mr. Naster in the absence of something new, to repeat unsuccessful arguments instead of moving on with the trial. By far the best piece of advice to be taken by counsel is the recommendation from Justice Cambpell near the end of his reasons. He notes that if counsel cannot get along with each other and if counsel cannot work together to see the trial through to the end, in effect both sides of the litigation will lose a certain sense of autonomy because the resulting logjam will inevitably require the presiding justice to intervene as per the Court s inherent jurisdiction to manage its own process. And as counsel, we need to considerer whether or not this unpredictable variable is one that we really want to introduce to the litigation: [254] When a court proceeding breaks down through mutual hostility and intransigence between counsel, it is open to the judge to assume some responsibility to save the trial and keep it fair and keep it moving. In the course of doing so the judge may need to take some unconventional steps..one cannot read the proceedings without feeling the need for some kind of judicial intervention to break the deadlock. Having had a look at the role of the Crown and the duty of all counsel to accept and abide by trial rulings with haste, we next turn to see what we can learn with respect to the role of defence counsel. 3. The Role of Counsel Much has been written about the noble role of the defence counsel to advance his or her argument and to defend the client. The focus of this section of the comment will be to examine the delicate situation where counsel feels that an argument of prosecutorial misconduct must be made out. How is that to be done and what are the proper circumstances under which to launch such a motion? One of the concerns of the reviewing judges in the Felderhof case was whether or not the trial judge had lost jurisdiction to continue with the trial because he did not silent the frequent complaints of prosecutorial misconduct when there was no formal motion before the Court, but merely an ongoing threat. The measuring stick in matters such as these is whether or not there is a fair trial, and if one side to the litigation cannot perform its duties properly because of harsh invective, then an argument could be made that the trial has become unfair. Justice Campbell was of the opinion that a hard fought trial is not a tea party and that prosecutors are to become somewhat Vulcan in their ability to remain immune to personal slight and professional insult. 13 Justice Campbell was renowned for being a very wise and clever judge. In this case he specifically 13 See paragraphs [275] to [279] of the decision. 5

6 6 cautioned against silencing counsel s rhetoric less there be a risk of further inflaming a counsel whose zeal exceeds his civility or his judgment or simply let the storm pass and move ahead. 14 Justice Rosenberg felt somewhat differently. While the Court of Appeal was of the opinion that the trial judge in the Felderhof trial did not lose his jurisdiction in allowing the allegations of prosecutorial conduct to continue without a formal motion before the court, there really should have been a direction to counsel to cease: [76] Thus, in the unlikely event that defence counsel again attempts to circumvent the rules of evidence through his abuse of process argument, the trial judge should require defence counsel to either elect to present his abuse of process motion then and there, or say nothing more about the matter until he is prepared to fully argue the abuse of process. The solution adopted by the trial judge of permitting the defence to make its usual objection, while having the effect of putting the prosecution on notice of what defence intended to eventually argue, was, in my view, unsatisfactory. It simply prolonged the proceedings and provided a further platform for Mr. Groia s excessive and often ill-considered remarks. When and if the defence does ultimately pursue its abuse of process motion it can at that time give notice in appropriate written form, including its allegation that the manner in which the prosecution presented its case in chief was abusive. Allegations of prosecutorial misconduct involve a very high threshold for defence counsel 15. Procedurally and personally, it is not a happy day when a prosecutor receives notice of such a motion. It often results in the introduction of new Crown lawyers to the matter on the grounds that the current Crown s standing is in jeopardy. However, if the quest to defend a client mandates this kind of hearing, civility in the courtroom need not exit the courtroom doors. Proper notice filed with a spirit of decorum, proper timing of the motion and proper advance filing of materials will ensure that the issue will be aired and decided upon and that the interests of justice will be served. The Felderhof trial, the appeals and now the new Law Society decision offer a wealth of information for young counsel who are eager to advocate to the best of their abilities without raising the spectre of the Law Society. All participants in the adversarial process would do well to review these decisions in an effort to stay abreast of an area that can seem at times vague and ever changing. But the bottom line remains, a clear appreciation of your role, your opponent s role and that of the trial judge will serve as a great aid in ensuring civility at all times. 14 At paragraph [279]. 15 See R. v. Nixon, [2011] 2 S.C.R. 566 and the cases before it (O Connor, Regan and Keyowski). 6