When you read that a lawyer like Joe Groia is being disciplined by the Law Society for being too rude, you immediately ask - "Wow, what did he do? Did he let loose with some of those bad words that make the air blue? Did he call someone a monkey-face?" It had to be bad if the Law Society is going to go this far. The pre-hearing bumpf doesn't mention any specifics, so unless you look into the Law Society's files case, you are just left wondering ...
The Investigation of Joe Groia
But, even a limited review of how LSUC went about the Groia case is enough to raise concerns. First of all, the Law Society started bugging Joe Groia about Justice Archie Campbell's decision years before the Felderhof case had concluded. There is at least a hint of intimidation in this - "you had better be careful Joe Groia because the Law Society is watching you". And, remember, what they were watching for was further allegations of prosecutorial misconduct.
But, even a limited review of how LSUC went about the Groia case is enough to raise concerns. First of all, the Law Society started bugging Joe Groia about Justice Archie Campbell's decision years before the Felderhof case had concluded. There is at least a hint of intimidation in this - "you had better be careful Joe Groia because the Law Society is watching you". And, remember, what they were watching for was further allegations of prosecutorial misconduct.
Then, about a year after the Felderhof case had concluded, Jill Cross, the Law Society investigator wrote to Joe Groia to tell him - surprise, there is now an investigation. And the basis of the investigation? See this quote:
"The issue in this investigation is, even if you were entitled to make allegations of abuse of process and prosecutorial misconduct in the Felderhof matter, the manner in which you expressed them might have been improper." Jill Cross, Letter to Joe Groia dated November 28, 2008.
Even if? Is there a question as to whether a lawyer is "entitled" to raise issues of prosecutorial misconduct? Duty maybe, but we need permission? From who? And "the manner in which you expressed them"? What does that mean? Is the Law Society saying that Joe Groia could make allegations of abuse of process if only he had done so nicely enough? Weird, but then ok, where do we find those standards? Where is the handbook on what a lawyer can and cannot say and prescriptions for the acceptable manners of expression for the unattractive issues a lawyer may have to raise in the course of trial? This is all very unclear and made more so by the fact that it all happened so long ago.
Joe Groia had these questions too. But he never got an answer. After not responding to his request for particulars for four months, Jill Cross abruptly wrote to him on March 26, 2009, said "I am done my investigation" and you are going to the Proceedings Authorization Committee. Opportunities for Joe Groia to respond to the allegations against him during the investigation stage: zero.
This was after an investigation based entirely on the reasons of Justice Archie Campbell. All Jill Cross did was read Justice Campbell's nasty comments, say "looks bad to me", and then conclude on the basis of this "evidence" that there had been misconduct. She didn't even order the transcripts to see whether the quotes were accurate or whether there might be context or other mitigating circumstances. But, with respect, a judge's reasons are not evidence of anything, except perhaps what that judge's opinion is. Extent of independent investigation by Jill Cross: none.
When it came time to prosecute Joe Groia in the hearing which began August 2, 2011, the number of witnesses for the Law Society: zero. Tom Curry put his entire case in by reading excerpts from the Felderhof trial to the Hearing Panel - for three days. (By this point, LSUC had finally paid to obtain all of the transcripts and did the work to identify which portions they were relying upon.) Why they did not just let the excerpts go in and let the Panel read them at their leisure is not clear. The Chair - Thomas Conway of Cavanaugh, Williams in Ottawa - claimed that having Tom Curry read the transcripts to the Panel was a useful exercise.
It was useful for those watching the case because listening to Tom Curry read was the only way for outsiders to the case to see whether there was an answer to the still ultimate question - "what did Joe Groia say that was so bad that the Law Society would think it necessary to punish him so?" With the greatest of respect, for those who attended, the answer to that question was and remains - nothing.
The Evidence Against Joe GroiaAlmost all of the alleged "incivility" of Mr. Groia relates to his arguments about two main issues:
(1) The stated intent of the OSC to "simply seek a conviction" as stated by the OSC's official spokesman on the Courthouse steps on the first day of trial; and,
(2) The manner in which the OSC had made or attempted to make, or promised and then changed its mind about, the documents required to be disclosed in OSC prosecutions (referred to as the Stinchcombe disclosure).
Violations of the OSC's Stinchcombe obligations could have created a basis for an allegation of prosecutorial misconduct if it had been serious and significant enough. Both issues relate to the ultimate and overriding issue of whether Felderhof was receiving a fair trial.
With respect to the Law Society, it is suggested that no one, including the Law Society should be attempting to make an ex post facto analysis of whether there was a basis for raising these issues. But regardless, based on the evidence, Groia and Felderhof had legitimate complaints on both counts. Thus, the Law Society's entire case against Joe Groia depends on their position that how Groia argued these matters was excessive or otherwise inappropriate.
This leaves the Law Society complaining that Groia used ugly words to describe ugly issues and those ugly words went too far over the "ugly line"; and, that he repeated his ugly arguments far too often. Again, with respect to the Law Society, this appears to be a most bewildering inquiry.
How ugly is too ugly? Ugly accusations will come with ugly words - what other words can you use? And, of course there is always the fact that like beauty, ugly is in the eye of the beholder.
As for repetition, the disclosure and documents issue was not resolved during the first fifteen days of the Felderhof trial and it kept coming up - every day, every hour, every time anyone wanted to show anyone a document and ask a question about it. So yes, there was a lot of repetition (by both sides) of the same arguments, but that was only because the same issue kept coming up and each time it did, the same arguments were raised. Groia has a defence of necessity but even if he didn't, how often is too often? Ten times? Twenty times? Fourteen is OK but fifteen will get you a three month suspension?
Consider that the trial judge made none of these objections but now the Law Society Hearing Panel, who aren't judges nor experts in securities law (two are lawyers, the layperson owns a limousine company), who weren't there and who have no direct knowledge of any of the issues in the trial much less those which were going on in the 6/7ths of this prodigious iceberg that lay underwater, these people are going to decide eleven years later that Justice Hryn should have cut Groia off because it was too much? But that was the OSC's argument on the recusal motion - and they lost. It is all so extraordinarily difficult to understand.
Specifics of what Joe Groia actually said and the words he used are included in the next page (A Sampling of the So-Called Incivility), but some general comments. While Curry read, there was much waiting and waiting for a zinger, a snarl, and seriously rude and viscious personal attack by Joe Groia against Jay Naster or Ian Smith as they had argued. Justice Archie Campbell had chastized Groia for his "petty invective" and "guerrilla theatrics" so we were expecting a show, and based on those descriptions, it was expected to be dramatic.
Never came. Not one thing Joe Groia said in those seventy days was anything other than proper, reasoned, and yes respectful argument about the behaviour of the OSC and the effect that such behaviour was and could have on Felderhof receiving a fair trial. Joe Groia was just doing his job for his client, and in the opinion of this author, was doing it extraordinarily well.
Furthermore, the only portions of the transcript that anyone we talked to might find offensive or too sarcastic or disrespectful, were those where it was either Jay Naster or Ian Smith who were speaking. In particular, apart from sarcastic asides to and about Joe Groia, both of these OSC prosecutors spent at least some time telling Justice Hryn what he and they could and couldn't do.
It is not suggested that either of Naster or Smith ought to be dragged before LSUC for their incivility. Although sarcastic and barbed, neither called someone a cocaine addict or lover of goats. But, it is suggested that whatever Joe Groia is guilty of, the conduct of Naster and Smith was much more and much worse.
