It is probably true, though not particularly important, that lawyers and judges and everyone else in Court should not be calling people silly names or making personal accusations - like you are a cocaine addict or you sleep with goats. It should not happen, it does not happen that often, and with respect, is not something that hurts anyone except the person saying such things.
However, when the Law Society starts applying "civility" to arguments of prosecutorial or judicial misconduct, it is something else entirely. In effect the proposition becomes "you can raise ugly arguments but you have to do it nicely". But, since "nice enough" is an indefinite and highly subjective standard and neither the Law Society nor anyone else has given specific instructions on how to meet it, the result will be to discourage lawyers from making arguments of prosecutorial or judicial accountability at all.
This would mean "accountability chill". No lawyer in Ontario would be willing to risk raising an argument of abuse of public power by either the Crown or the judge because the lesson of the Groia matter and cases like his is that if you do, the Law Society will ruin you.
It is suggested that not only is this not an appropriate goal, it is not something the Law Society of Upper Canada should be involved with. The Law Society exists to protect the public and the public interest in the justice system. It is not there to shield the Crown or judges from the consequences of their excesses or errors. Lawyers are the last line of defence against misconduct by prosecutors or judges. The Law Society should not only not be punishing lawyers who choose to raise the issues, they should be supporting them.
Assault on the Criminal Defence Bar
One of the messages of the Groia case to defence lawyers is - be wary of raising prosecutorial misconduct. This comes at a time where the Attorney General of Ontario has started an initiative whereby Legal Aid of Ontario gets to approve which lawyers qualify to be paid by Legal Aid. It appears that Legal Aid of Ontario can disqualify lawyers on the basis of "competence" which seems to include whether you brought too many or the wrong motions and other aspects of how you argued the case. Such inquiries - highly subjective and inherently arbitrary - could be used by Legal Aid Ontario (an agency of the government) to essentially pick and choose which lawyers can be paid by Legal Aid.
The combination of the manner in which the Law Society and Legal Aid are approaching the conduct of defence counsel vis-a-vis excesses of state power could have very significant consequences. Under the guise of "civility" and "competence" the state may be able to control (a) who represents you and (b) how they represent you.
Criminal defence lawyers are now being subjected to implicit intimidations as they run their cases. If you see that the prosecutor has misbehaved, you may decide to not raise it no matter how unfair to your client, because if you do, you might be disbarred. If you want to bring a motion for this or for that, well now you have to worry about whether some time later, Legal Aid Ontario might come back to you and say "you should not have brought that motion, you are no longer competent to be on the Legal Aid Panel".(You can of course still represent defendants, just not those who need Legal Aid).
It is suggested that all of these initiatives pose a serious problem of state interference in the constitutional right to be represented by counsel of your choice.
Undoubling the Double Standard - A Civility Appeal for Defendants?
The most damning criticism of the Law Society's civility initiative is that in its application only certain lawyers get charged and only in certain circumstances. Only lawyers who have raised issues of prosecutorial or judicial misconduct are being disciplined for incivility and appear to be being disciplined in retaliation by the prosecutors and judges who were the subject of such allegations.
The inquiries into the conduct of lawyers like Joe Groia being pursued in by the Law Society in this area end up at the following proposition: if a lawyer is faced with raising prosecutorial or judicial misconduct, they have to be careful. These are ugly issues and you could be disciplined for incivility if the manner in which you argue them is too ugly.
Interestingly enough, no one supporting these propositions seems to have considered that the one group of lawyers who raises the ugliest issues and does so far more frequently than anyone else is the Crown itself. When you prosecute someone for major fraud or murder at many points in the trial, you will have to raise issues of fraud, or murder.
The question then becomes whether the Crown should also be subjected to regular inquiries as to when they argued that someone was a fraudster, liar, or murderer, they did so respectfully enough. Or, when they charged the defendant with more than one charge (which is fairly common) whether some of the charges were unfounded and so ought not to have been brought. This would at least put the Crown in the same position as defence lawyers - subject to ex post facto analysis by the Law Society of what issues the Crown raised during trial and the manner in which they raised them.
However, when it is the Crown (or even the judge for that matter) that commits an abuse of the justice system, there are additional consequences. If incivility is, as the Law Society, prominent judges, and the Government of Ontario all suggest, a serious matter fundamental to the proper functioning of the administration of justice, then if either the judge or the Crown are guilty of incivility the accused if convicted should have an automatic ground of appeal.
Furthermore, since incivility violations are being applied retroactively to cases Groia and his counterparts defended years ago, the same should be available to all defendants convicted in Ontario. Thus, it is suggested that in order to be consistent and treat all actors in the judicial system the same, the Ontario Courts would have to allow appeals from anyone who could show that during the course of their trial the Crown or the judge was sarcastic, intimidating, overly metaphorical, or otherwise uncivil, has an automatic appeal on the basis that they did not receive a fair trial, no matter how long ago the trial was.
It is suggested that criminal defence lawyers consider this route of appeal as a response to the state powers (including the Law Society, although it is supposed to be independent) activities in connection with the defence Bar and the negative effects those activities are having and could have on the ability of defence lawyers to defend their clients.
