R. v. Felderhof was the trial of the Ontario Securities Commission's charges against John Felderhof in connection with the Bre-X scandal. Justice Peter Hryn was the presiding judge. Jay Naster and Ian Smith were the original prosecutors for the OSC. Felderhof was represented throughout by Joseph Groia.
There were a series of pre-trial skirmishes over particulars and disclosure by the OSC. By the time the trial commenced in 2001, the issue of disclosure was still unresolved. This created continuous difficulty and delay with a further motion for disclosure which was not completed until the 16th day of trial and even then, Justice Hryn's rulings resulted in ongoing disputes about documents and disclosure which continued throughout until the 70th day of trial.
In addition, on the first day of trial, Frank Switzer, spokesperson for the OSC, stood on the courthouse steps and said that the OSC was there to "simply to seek a conviction". Justice Hryn ruled that this had been improper and Mr. Groia made numerous references to the statement as part of the defence to support an argument that John Felderhof was being unfairly targeted.
The ongoing issues with the OSC's disclosure obligations (as defined in the Stinchcombe decision) and the inferences to be made from the Switzer statement became, along with potentially other aspects, a possible basis for an argument of prosecutorial misconduct. Mr. Naster for the OSC interpreted these allegations as an attack on his personal integrity and that of other OSC lawyers involved in the case.
After 70 days of what had apparently been a grueling exercise of ongoing procedural disputes, the OSC brought a motion to recuse Justice Hryn on the basis that he had lost control of the trial. Michael Code (now a judge with the Ontario Superior Court in Toronto and an author of the civilty reports) argued the motion on behalf of the OSC.
The first three grounds of the recusal motion related to adverse rulings Justice Hryn had made against the prosecution in terms of disclosure and the order and manner of how the OSC was to put in its evidence. The fourth ground was that Justice Hryn had failed to restrain uncivil conduct of defence counsel (Groia) thus producing an unfair trial and creating a reasonable apprehension of bias in the trial judge. The OSC admitted that the incivility ground made up only about 20% of its case on the recusal motion.
Justice Archie Campbell (now deceased) heard the recusal motion. Although he denied the motion, he went into some detail about Mr. Groia's uncivil conduct and used this as the basis for denying costs to Federhof, even though Felderhof was successful on the motion.
These findings were somewhat unfair to Mr. Groia as he was not a party to the motion and not able to defend himself against the accusations. Moreover, his goal as counsel was to make sure that his client received a fair trial and not be prejudiced by the appointment of a new judge.
The Court of Appeal dismissed the OSC's appeal of Justice Campbell's decision but approved his reasons on costs, echoing the motion judge's comments that to award costs to Mr. Felderhof would "send the wrong message" to Mr. Groia, rewarding him for his conduct in the trial.
It has been suggested in some legal circles that the issue of Mr. Groia's conduct was used by the Courts as an excuse to deny Felderhof his costs on the recusal motion. Awarding a scoundrel like Felderhof $500,000 in legal costs (from the public treasury because it was the OSC who lost the motion) would have been wildly unpopular. Since Felderhof had won the motion and would have been normally entitled to his costs, there would have been great pressure on both Justice Archie Campbell and the Court of Appeal to find any reason they possibly could to make sure Felderhof received nothing. Thus, for the Courts, Joe Groia and his so-called uncivil conduct became a convenient scapegoat to ensure the public would not be dissatisfied.
What the Law Society has done and is doing with all this is another matter and responding to LSUC's activity in this regard is the purpose of this blog and associated commentary.
What the Law Society has done and is doing with all this is another matter and responding to LSUC's activity in this regard is the purpose of this blog and associated commentary.
