We have seen the article in the Law Times by Kip Daechel (but not been allowed to comment on it). We find it strange that most of the people who are publically defending Groia are, like Mr. Daechel, from Heenan Blaikie.
The original pro-Groia article in the Globe? Co-written by David Roebuck of Heenan Blaikie. Two of the witnesses for the defence - from Heenan Blaikie, including Stanley Fisher who, as the first recipient of an award for civility, was an expert of sorts. (He also quoted former Justice Morden, now of Heenan Blaikie.)
It is perhaps not objectionable for Heenan Blaikie to be so involved, it is, however, curious that only Heenan Blaikie's opinions are getting published. And given that consistent messages are coming from the same source, the appearance is that this is all being tightly scripted.
We do not disagree with the Heenan Blaikie opinion - the Law Society has no business second-guessing the trial judge who made no objection to Groia's conduct (though perhaps the same thing could have been said about Justice Archie Campbell and the Court of Appeal who did just that). We do believe that the real issues are much broader and more significant.
Fundamentally, the Law Society has no business labeling "ugly arguments" as uncivil nor attempting to conduct an ex post facto analysis of whether Groia or anyone else should have raised an argument, much less the manner in which he made them.
The Law Society is not qualified to make such assessments - no one is. How to conduct a case is a matter of professional judgement and it is an art not a science. No one can cast themselves back into the past where a lawyer was making their decision about what to argue and pretend that they have enough information to put themselves in that lawyer's position. Different people will choose different things and not be right or wrong at least as far as raising it.
Furthermore, there are already consequences for raising an argument you perhaps should not have raised - it is called losing and getting costs awarded against you. What the Law Society is doing in these cases is double-punishing any lawyer who has already been "punished" by the judge.
It is suggested that the Law Society has seriously lost its way in these cases. If the Law Society is going to investigate lawyers for losing arguments and getting costs awarded against them, then, they will have to investigate everyone who appears in court everyday.
The Law Society cannot pick and choose their victims, and, more importantly, they should not be only picking on people who have raised the difficult issues of prosecutorial and judicial misconduct. This is a deeply troubling issue which continues to be shielded from public purview by the focus dictated by the limited messaging.
The Law Society is seriously in error on this and other counts. Yet, the Heenan Blaikie opinion persists in ignoring these very important issues ...
