In 1820, King George IV of England obtained a divorce from his then estranged (see: exiled) wife, Caroline of Brunswick. On June 5, 1820, Caroline returned from exile to claim the throne and the title of Queen of England. George moved quickly to introduce a Bill into the House of Lords to annul the marriage and find Caroline guilty of adultery. This Bill, known as the Pains and Penalties Bill, was seen by many as unconstitutional and baseless.
There was technically no “trial” of Caroline, but there was a reading of the Bill which acted as a public trial of the Queen, with the members of the House of Lords and the House of Commons acting as judge and jury. This was captured by Sir George Hayter in the painting – the Trial of Queen Caroline and now hangs in the National Portrait Gallery in London. The Bill passed, but due to a public outcry and the ruthless advocacy by her two barristers’ the government withdrew the Bill and it never saw the House of Commons. One of these two barristers was later appointed to the House of Lords and given the title of Lord Brougham. During the “trial”, before the House of Lords, Henry Brougham (as he was then known) gave the definition of what an advocate is and was widely quoted for years to come-
“[A]n advocate, in the discharge of his knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and, amongst them, to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others. Separating the duty of a patriot from that of an advocate, he must go reckless of consequences, though it should be his unhappy fate to involve his country in confusion.”
This definition was given in the context of a trial that could have defined the bloodline of the English monarchy for years to come (ultimately it did not as Caroline died in 1821 after the death of her only child, Princess Charlotte, in 1817) as well as the political landscape of a nation.
The definition of an advocate has evolved and changed over time and been redefined. The boundaries of resolute advocacy, however, were tested by the Law Society of Upper Canada (as they were then known), on June 28, 2012, when they held that Joseph Groia had professionally misconducted himself while defending his client John Felderhof in an action taken against him by the Ontario Securities Commission (OSC).
On April 18, 2013, the three-member panel of the Law Society Hearing Panel found Groia guilty of professional misconduct, suspended his licence to practice law for two months and ordered him to pay nearly $247,000 in costs.
On November 28, 2013, on appeal by Groia, the Law Society Appeal Panel also concluded that Groia was guilty of professional misconduct, but it reduced Groia’s suspension to one month and decreased the costs award against him to $200,000. In its decision, the Appeal Panel developed a multi-factorial, context-specific approach for assessing whether in-court incivility amounts to professional misconduct.
On February 2, 2015, the Ontario Superior Court of Justice dismissed the appeal and upheld the Appeal Panel’s decision as reasonable.
On June 14, 2016, a majority of the Court of Appeal dismissed Groia’s further appeal.
Bloodied but undefeated, Groia brought his case to Ottawa, and filed for leave to appeal at the Supreme Court of Canada on July 29, 2016.
On November 6, 2017, the Supreme Court heard Groia’s case.
On June 1, 2018, the judgement was released and, after almost 6 years, Joseph Groia was finally vindicated for his resolute advocacy. The Supreme Court set aside the decision of the Appeal Panel with respect to the finding of professional misconduct against Mr. Groia and the penalty imposed with costs.
The Supreme Court first lauded the multi-factorial, context-specific approach developed by the Appeal Panel for assessing whether a lawyer’s in-court behaviour crosses the line into professional misconduct on the basis of incivility is appropriate taken by the Appeal Panel. It recognized the paramountcy of lawyer’s duty of resolute advocacy — a duty of particular importance in the criminal context because of the client’s constitutional right to make full answer and defence.
The majority reiterated several findings by the Appeal Panel, including but not limited to:
- Prosecutorial misconduct allegations, or other challenges to opposing counsel’s integrity, cross the line into professional misconduct unless they are made in good faith and have a reasonable basis;
- It is not professional misconduct on account of incivility to challenge opposing counsel’s integrity based on a sincerely held, but incorrect legal position, so long as the challenge has a sufficient factual foundation, such that if the legal position were correct, the challenge would be warranted; and
- It is not professional misconduct to advance a novel legal argument that is ultimately rejected by the court; and
- The good faith adopted inquiry asks what the lawyer actually believed when making the allegations (in cases specific to accusatory misconduct).
The majority then found that, although all of this is appropriate, the finding of professional misconduct against Groia based on incivility was unreasonable as the Appeal Panel misapplied their own test.
The Panel found that Groia’s allegations lacked a reasonable basis and thus constituted professional misconduct. The Supreme Court took two main issues with this finding in overturning it.
First, the majority of the Supreme Court, Based on the Appeal Panel’s standard, found that Groia’s accusations of prosecutorial misconduct were erroneous, but made in good faith. Allegations of prosecutorial misconduct based on a sincerely held but mistaken legal belief will be reasonably based as long as they have a sufficient factual foundation.
The question for incivility purposes is not whether Groia was right or wrong on the law; rather, the question is whether, based on his understanding of the law, his allegations of prosecutorial misconduct, which the Appeal Panel found were made in good faith, had a factual foundation.
In this case, they did. Groia’s legal errors, coupled with the OSC prosecutors’ conduct, provided the reasonable basis for his allegations. Accordingly, based on the Appeal Panel’s own approach, Groia’s allegations were made in good faith and they were reasonably based.
Second, the other contextual factors in this case could not reasonably support a finding of professional misconduct against Groia on the basis of incivility. These factors included:
- The evolving abuse of process law at the time accounts, at least in part, for the frequency of Groia’s allegations;
- The presiding judge took a passive approach in the face of Groia’s allegations; and
- Groia’s behaviour changed in response to the directions of the trial judge.
The Appeal Panel failed to account for these contextual factors in its analysis. The only conclusion that was reasonably open to the Appeal Panel on the record before it was a finding that Groia was not guilty of professional misconduct.
This case is a huge personal win for Joseph Groia, who has been carrying this burden since after R. v. Felderhof. Similarly, I imagine there was a collective sigh of relief from criminal and civil advocates across Ontario and Canada.
Justice Moldaver makes the Supreme Court’s position on the lawyer as an advocate very clear in the first few paragraphs of his reasons where he states–
“…trials are not — nor are they meant to be — tea parties. […] 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.”
While this is not as unfettered as Lord Brougham’s persepctive, it is important to reinforce the hierarchy of a lawyer’s duties, where his or her allegiances lie and his or her role first as an advocate and secondly a civil professional.
Furthermore, the approach taken in the Court leaves us with a working test which we, as lawyers, can apply to their own situations, but reassures us that we don’t need to balance the needs and rights of our client with the fear of reprimand if we are working from a factual foundation and in good faith. This approach is not unlike the “Reasonableness Standard” created in Dunsmuir. However, even that is possibly in question as well due to the pending trio of cases which have been granted leave from the Federal Court of Appeal.